P L D 1979 Lahore 50 (PLP)

The respondent is stated to have filed a petition at Rawalpindi for the custody of his minor son allegedly residing at the time with him. The applicant has asked for the transfer of that case to Lahore, mainly on the ground that it was instituted simply to put the applicant to inconvenience and harassment. She has maintained that she was a pardah‑observing lady and was not in a position to perform journey to Rawalpindi and attend to the case efficiently at such a long distance.

2. It is not denied that the applicant has already filed a suit for dissolution of her marriage against the respondent in addition to some more cases in the Family Court at Lahore. The learned counsel for the respondent has, however, emphasized that the Court at Rawalpindi has jurisdiction to hear the petition as, according to the respondent, the minor last resided at Rawalpindi and he was removed to Lahore. He further argued that mere inconvenience to one of the parties was no ground for the transfer of the case from one Court to another. I do not want to go into this dispute, for the matter relating to jurisdiction is for the Guardian Court to decide. It is not the inconvenience of the parties, but that of the minor which requires to be kept in mind. The Guardian Court may, at any stage of the proceedings, call for the production of the minor and in that case it shall be the minor who would be exposed to hardship, which, in the ordinary circumstances, needs be avoided. At this stage the learned counsel has undertaken that an application under section 12 of the Guardians and Wards Act, 1890, shall not be moved by the respondent. I have a great respect for the statement of the learned counsel made at the Bar, but an undertaking of this type barring the jurisdiction of the Guardian Court as well as the very right of a party may be in one way or the other detrimental to the interest and welfare of the minor. Therefore, such an undertaking cannot be given much weight.

3. Since the minor is at present residing at Lahore with the applicant, it appears proper, in the circumstances explained above, that the case be tried at Lahore so as to save the minor from being put to any incon venience. It may be pointed out that the view propounded above is not a rule. Each case has its own significance and merits. In the present case, the ground aforementioned stands fortified if it is also kept in view that multifarious litigation is going on between the parties. Almost all the cases are being tried at Lahore and the respondent is likely to attend to them there. Therefore, if this case is also transferred to Lahore he is apparently to suffer but an insignificant inconvenience as compared to that to be caused to the applicant and the minor if the case is allowed to remain at Rawalpindi.

4. For the reasons stated above, the case (Mushtaq Ahmad Javaid v. Farhat Shamsa) for the custody of the minor at present pending in the Court of Mr. Muazzam Hayat, Guardian Judge, Rawalpindi, is ordered to be trans ferred to the Guardian Judge, Lahore. No order as to costs.