P L D 1965 (W (PLP)

This miscellaneous appeal is from the judgment of Mr. Hamidali M. Memon, 1st Additional District Judge, Hyderabad in Misc. Civil Application No. 41/62 dated the 20th February, 1963. By this order the learned subordinate Court accepted the respondent's application for the custody of the minor child involved in this appeal. In the present appeal the dispute between the parties is in respect of Mst. Nur Bibi who is a daughter of the respondent and was born in 1953. The appellants are the maternal grand parents of the minor child. Their daughter Mst. Bibi Islam died long ago. The respondent Syed Ghulam Nabi Shah moved an application for the custody of his daughter on the ground that some 3 months before the making of the application he had brought his daughter to stay at Hyderabad after informing the appellants that he would look after her welfare himself. Thereafter the appellants came to Hyderabad and asked him to permit the minor to stay with them for about a week because the opponent and his wife had deep attachment with the girl. They undertook to bring back the girl to the respondent's house but in spite of their promise they have been detaining the girl at Darbelo without his consent and permission. Respondent No. 1 case is that he being the natural guardian was entitled to the custody of his minor daughter both in law and on the ground that it was also in the interest of the minor's welfare. The appellants challenged the jurisdiction of the Hyderabad Court on the ground that the minor child has been living with them since 1960 and her ordinary place of residence being at Darbelo in Nawabshah District the Nawabshah Court will have jurisdiction in the matter. The learned subordinate Court rejected this plea without coming to the conclusion about the ordinary place of residence of the minor child. According to the learned subordinate Court the ordinary place of residence of a minor child is the place where the father resides and relying on this fact he entertained the application and granted the relief sought by respondent No.

1. I have gone through the judgment of the learned subordinate Court. There is no finding by him that the minor child some two or three months before the filing of the application under section 25 of the Guardians and Wards Act had been residing with respondent No. 1 and was removed by the appellants about a week before the application was presented in the Hyderabad Court. Mr. Ibrahim Memon the learned counsel for the appellants has strongly urged before me that on the facts of the present case the learned subordinate Court committed an error in entertaining the application and holding that the Hyderabad Court had jurisdiction in the matter. He referred me to a document Exh. 29/A produced by respondent No. 1 in the trial Court. This is an affidavit by Syed Widhal Shah appellant No. I attested before the Oath Commissioner, Hyderabad on 11‑4‑

50. From a perusal of this affidavit it appears that at the time when it was sworn the age of the minor was about 7 years. Appellant Widhal Shah stated that Nur Bibi the daughter of respondent No. 1 was under his guardianship and they have been looking after the minor in the past and will continue to do so. In para. 3 of the affidavit it is stated: "that at present the minor is in the custody of the father Ghulam Nabi Shah who gives the custody of minor to me on the following terms and conditions." In paras. 6, 7, 8, 9 and 10 the conditions on which the custody of the minor was given to the appellant Widhal Shah are given in detail. The only conditions mentioned in this document are that the appellants would not marry the minor, nor shall engage her with any person; that they would not receive maintenance nor would make any demand from respondent. It is further stated in the affidavit that the appellants would not object to the other relations of the minor to see her at their place and that they would not keep her in wrongful confinement or interfere with her property. In para. 9 of the affidavit it is stated that: "If her father would take away her on ceremonial occasions, I or her maternal grand mother would not restrain her." It is quite obvious that on the terms of this document since April, 1960 the minor child has been residing with the appellants who are her maternal grand‑parents at Darbelo, taluka Naushero Feroze, Distt. Nawabshah. The allegation of respondent No. 1 that since three months before the filing of the application the minor had been residing with him or that she was removed about a week before the presentation of the application is not supported by any convincing evidence. This plea is supported only on the evidence of respondent No. 1 which, in the circumstances of the present case, I am not inclined to believe. Mr. Abdullah Shah the learned counsel for respondent No. 1 admits that except the bare statement of his client there is no other evidence to support this plea. In these circumstances the question of jurisdiction of the learned subordinate Court would have to be decided on the basis that the minor, at the time when the application under section 25 of the Guardians and Wards Act was presented in the Hyderabad Court, was residing in the District of Nawabshah. In such cases ordinarily the minor child should have been held to be residing within the jurisdiction of Nawabshah Court, which alone would be competent to entertain the application under consideration. It is, however urged that in law the place of residence of guardians should be taken to be place of residence of ward and the Court within whose jurisdiction the father of the minor child was residing would be competent to entertain an application under section 25 of the Guardians and Wards Act. In support of his contention Mr. Abdullah Shah the learned counsel for the respondent has relied on Mahmooda Khatoon v. Syed Zainul Hasnain Rizvi (P L D 1958 Kar. 150), Mst. Lalita Twaif v. Paramatma Prasad (A I R 1940 All 329); Mst. Nazir Begum v. Ghulam Qadir Khan (I L R 1937 Lah. 426) and Sm. Vimalabai w/o Baburao Kshirsagar v. Baburao Shumrao Kshirsagar (A I R 1951 Nag. 179). The Karachi case is distinguishable because admitted by the minor children alongwith their mother had come to reside with their father at Karachi and had been illegally removed from Karachi some two days before the application under section 25 of the Guardians and Wards Act was made by the father to the guardianship Court. Such is not the position in the present case. There are certain general observations which do support the contention of the learned counsel for respondent No. 1 but in view of a latter Division Bench decision of this Court in Zubaida Begum v. Chaudhari Ghulam Rasul (P L D 1959 Lah. 967) it is not possible for me to decide this case on the general observations made in the Karachi case. In P L D 1959 Lahore 967 a Division Bench of this Court considered this aspect of the case in its full aspects. Their Lordships did not accept the view taken in A I R 1938 Lah. 313; I L R 1937 Lah. 426 and A I R 1951 Nagpur

179. In this connection the learned Judges observed as under: "Now, the question where a minor ordinarily resides is pure question of fact, the decision of which must depend on the evidence produced in a case unless it be the law that in giving its decision on that question of fact the Court shall take into consideration matters which do not really relate to the ordinary residence of the minor but to something else. Nothing is said in section 9 of the Guardians and Wards Act with regard to any fact other than the residence of the minor being material for determining the ordinary place of residence of the minor and it would, therefore, appear that the question must in each case be determined as any other question of fact, the decision depending on the evidence in that case with regard to the question of fact that falls for determination. It is clear that the residence of the minor, in order to satisfy section 9 of the Guardians and Wards Act, must be its ordinary residence and not merely casual residence. Cases can arise in which, with a view to taking away the jurisdiction of a Court, a minor may be removed out of the jurisdiction of that Court by interested parties and unless this kind of residence had continued for a sufficiently long time, it is obvious that it cannot be deemed on any reasonable ground to be the ordinary residence of the minor." Their Lordships further observed: "If the intention of the Legislature were that an application under section 25 of the Guardians and Wards Act could be made at a place where the guardian ordinarily resides and that place is to be deemed to be the place where the minor ordinarily resides for the purpose of Guardians and Wards Act, it would have very easily made that intention clear. As section 9 stands, all that is relevant is the ordinary place of the residence of the minor as no mention has been made in the section with regard to the ordinary place of the residence of the guardian. According to well recognised canons of interpretation of statutes the words occurring in section 9 of the Guardians and Wards Act with regard to the ordinary residence of the minor, have, in my opinion, to be given their due weight and violence cannot be done to the language of the section for reasons which, though they may be laudable, are not recognised by law. It is true that a minor would ordinarily reside at a place where the guardian resides, but cases can arise‑and in the present case that is the allegation‑in which the minors were allowed to be taken away to a place outside the jurisdiction of the Court within the jurisdiction of which the guardian ordinarily resides. It was with the consent of the guardian that the minors had been taken away out of the jurisdiction of the Court in which an application under section 25 was subsequently made, I do not see on what principle of law, justice, equity or good conscience, the guardian should be allowed to say that though in fact the minor is, with his consent, residing at a place which is outside the jurisdiction of the Court where the application had been put in, it should nevertheless be held that the minor was ordinarily residing within the jurisdiction of that Court. As I have already said those cases in which a minor is removed with the ulterior object of taking away the jurisdiction of the Court, will stand on a different footing because if the removal is recent the Court can hold that the ordinary residence of the minor is the place from which it had been removed for an ulterior object and this is the view which was taken in Mst. Nazir Begum v. Ghulam Qadir A I R 1938 Lah. 313 to which I have already made a reference. It is, however, clear that, because a ward should ordinarily reside at the place where the guardian resides the initial presumption should be that the ward is ordinarily residing at the place where the guardian is, but the presumption is rebuttable and may in a suitable case be held to have been rebutted. I need hardly add that whether or not the initial presumption has been rebutted would depend on the facts and circumstances of each case and it is not possible, nor perhaps permissible, to lay down under what circumstances the above‑mentioned initial presumption is to be taken to have been rebutted." I am in respectful agreement with the observations made in the above‑mentioned case. The question where a minor ordinarily resides is always purely a question of fact. Its decision must depend on the evidence produced in a case. In the present case there is reliable evidence to come to the conclusion that the minor at the material time was residing within the jurisdiction of Nawabshah Courts. In the face of such evidence the mere fact that the father is a resident of Hyderabad cannot confer jurisdiction on the Hyderabad Courts. It was urged by Mr. Abdullah Shah that this Court has ample jurisdiction to condone any irregularity in this respect under section 14 of the Guardians and Wards Act. But this provision of law has no bearing at all on the present case. Section 14 of the Guardians and Wards Act deals with a case in which the guardianship proceedings are pending in two Courts and then it is in the discretion of the High Court to allow the proceedings to continue in one of these Courts. The learned counsel further contended that the principles of section 21; C. P. C. should be applied in this case. He relied on a Dacca decision Pakistan v. Muhammad Abdul Kuddus, Income‑tax Officer, Chittagong (P L D 1961 Dacca 616) but that case did not arise out of any guardianship matter. That was a civil matter and on the provisions of section 21 the decision was, if I may say so, with respect, perfectly correct. The position in guardianship matters is entirely different. There the person of a minor is involved and the best Court to decide the question of his custody is the Court within whose jurisdiction the minor ordinarily resides. Therefore, section 21 of the C. P. C. cannot be applied in such cases. It was lastly urged by Mr. Abdullah Shah that no appeal is provided under section 47 of the Guardians and Wards Act on the ground of erroneous decision on the question of jurisdiction. This point also has no force because under section 47 (c) of the Guardians and Wards Act an appeal is provided against an order by which a guardianship Court has handed over the custody of a minor to any party. After careful consideration of the facts and law involved in this case I am satisfied that Mst. Nur Bibi the minor child involved in this matter at the time when an application was made for her custody by respondent No. 1 to Hyderabad Court was ordinarily residing in Nawabshah District. The Hyderabad Court, therefore, had no jurisdiction in the matter. I would, therefore, set aside the order of the Hyderabad Court and direct respondent No. 1 to approach the Court of competent jurisdiction for the redress of his grievance. In the result the appeal is allowed but since the parties are closely related they are left to bear their costs. K. B. A. Appeal accepted.