1987 PLP 1204 (CLC)

This is a petition under section 25‑A of the Family Courts Act for transfer of application of the respondent against the petitioner under section ' 25 of the Guardians and Wards Act from the Judge Family Court, Hafizabad, to the Judge Family Court, Jaranwala.

2. The facts necessary for the purposes of the present petition are that the petitioner and the respondent were married some years ago and out of the wedlock four children were born. The parties fell out as a result of which the petitioner returned to the house of her father at Jaranwala, where she has instituted a suit for her own maintenance and the maintenance of her minor children. The respondent on the other hand has instituted an application under section 25 of the Guardians and Wards Act for custody of four minor children out of the wedlock. It is admitted position that all the four minor children are presently with the petitioner and living at Jaranwala.

3. The learned counsel for the petitioner contends; firstly, that the suit of the petitioner for maintenance was filed on 5th of November, 1982 at Jaranwala, whereas the respondent only as a counter blast instituted the application for custody of minors at Hafizabad on 25‑11‑1982; secondly, that the children being admittedly at present residing at Jaranwala, where they are getting education, it will be in the interest of the minors that the application of the respondent is transferred to the Court at Jaranwala, and lastly, that the petitioner being a Pardahnashin lady, it will be difficult for her to defend the case filed by the respondent at Hafizabad.

4. The respondent has submitted reply to the application which has been placed on record. The respondent has only submitted that he apprehends danger to his life at the hands of the petitioner's brothers who have always been extending threats to him whenever he appeared in the case filed by the petitioner against him at Jaranwala. He, therefore, submitted that the case of the respondent, if it has to be transferred, should be transferred to some other town.

5. The learned counsel for the petitioner in reply submitted that if the case is transferred to some other town, this will not be in the interest of any of he parties and the basic factor of the convenience of the minors will also be lost as their education will suffer in that case also.

6. Having considered the controversy I find that it will be in the interest of both the parties that the application of the respondent is also tried at Jaranwala. It is the admitted position that the suit of the petitioner against the respondent is pending at Jaranwala, and no transfer of the said suit has been sought for. That being so, the respondent will in any case have to go to Jaranwala to defend himself in that suit. If the suit of the respondent is also transferred so as to be tried by the same Court, this will cause no inconvenience to him, especially when the two cases can be fixed for hearing on the same date.

7. The main factor which has persuaded me to take the view that the application of the respondent should be transferred, is the admitted residence of the minors at Jaranwala. It is the common practice that in application for custody of minors, they are frequently required to appear in the Court so that the parties could have access to them. That being so, if the case is tried at any other place than Jaranwala, the education of the minors will suffer and they will otherwise also be put to the inconvenience of travelling during the pendency of the said case. It is in the context of this situation that section 9 of Guardians and Wards Act appears to have been framed.

8. As regards the contention of the respondent that he apprehends danger, the learned counsel for the petitioner has submitted that the petitioner is prepared to give any security to the satisfaction of the trial Court at Jaranwala that no harm will be caused to the respondent at the hands of the petitioner or her brothers.

9. In view of the foregoing discussion, accepting this petition I direct that the application of the respondent for custody of minors titled "Hakim Hidayat Ullah v. Mst. Imtiaz Bano" be withdrawn from the Judge, Family Court, Hafizabad and entrusted to the Judge, family Court, Jaranwala. The petitioner shall furnish security to the satisfaction of the trial Court that the respondent will not be caused any harm by her or her brothers. The parties shall appear before the Judge, Family Court as Jaranwala on 16‑4‑1983. The transferee Court at Jaranwala shall fix both the cases between the parties on the same date for hearing to avoid inconvenience to the respondent. The Court shall also expeditiously dispose of both the matters. A. A. /I‑12/L Case transferred.