1994 PLP 1078 (MLD)

This is an application under section 25-A of the Family Courts Act, 1964, for transfer of the application for appointment of guardian of the minors filed by the respondent and the suit for restitution of conjugal rights. The application was, admitted to hearing and notice was issued to the respondent, who has appeared and contested the application.

2. Learned counsel for the petitioner in support of the petition has argued that it is in the interest of justice and necessary to avoid contradictory decisions that all the matters between the parties should be heard and decided by one and the same Court. It is added that the petitioner is a female and working as a teacher at Kasur, therefore, neither it is possible for her to defend the application and the suit filed by the respondent in the Courts at Lahore nor it is safe for herself and the children to come to Lahore. It is added that it is also in the convenience of the minors that the guardian petition should be entrusted to the Court at Kasur.

2. On the other hand, the learned counsel for the respondent argued that section 25-A of the Family Courts Act is not applicable to the family matters between Christians. The objection is misconceived. All the family matters are governed by the Family Courts Act, 1964. It would be seen from the Preamble that the Family Courts Act was enacted with the purpose to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to family affairs or matters connected therewith. There is no reference of any religion or any particular enactment. The proposition becomes further clear if reference is made to the Schedule under section 5 of the Act in which only the subjects like dissolution of marriage, dower, maintenance etc., have been mentioned instead of referring to particular enactment or religion. The learned counsel has rightly referred to Mrs. Daphne Joseph v. Eric Roshan Khan PLD 1971 Kar. 887 wherein it was held that there is nothing in the Family Courts Act, 1964 by which it can be said that it is inapplicable to Christians., There is no merit in the plea raised on behalf of the respondent that transfer application under section 25-A of the Family Courts Act-,- 1964 is not competent.

2. The next objection of the learned counsel for the respondent is that at a time one matter can be transferred through this application and for the other matter the petitioner has to file a separate petition. The learned counsel for the petitioner submitted that this application be treated as transfer application in respect of the guardian application moved by the respondent and pending in the Court of Syed Nasir Ali Shah, Guardian Judge, Lahore.

4. Learned counsel for the respondent next contended that the Kasur Court has no jurisdiction because a suit can be filed according to section 3(2) of the Divorce Act, 1869 where the parties are residing or they last resided together. But this contention loses significance as this Court is competent to transfer suits to any Family Court. In this behalf, reference may be made to subsection (1) of section 25-A of the Family Courts Act which reads as under:

"Notwithstanding anything contained in any law the High Court may either on the application of any party or of its own accord, by an order in writing:

(a) transfer any suit or proceeding under this Act from one Family Court to another Family Court in the same district or from a Family Court of one district to a Family Court of another district;" It is clear from this provision that this Court has jurisdiction to transfer a matter from a Family Court of one district to the Family Court of the other district. It is also evident from the above provision that this Court can pass such orders of its own accord. This would also dispose of the objection that only one' matter of the respondent can be transferred from Lahore to Kasur and for the other the petitioner has to make an independent application.

5. The next submission of the learned counsel for the respondent is that the application for appointment as guardian and the suit for restitution of conjugal rights were filed by him on 24-1-1993 while the petitioner initiates: proceedings against him on 17-6-1993. This way his application and the suit are prior in time, therefore, should not be transferred. This is relevant for stay of .proceedings under section 10, C.P.C. but is irrelevant for the decision of a transfer application.

6. Now coming to the convenience of the parties, this Court is not only to see the convenience of the petitioner, who is a female but also the convenience of the minor children, who are studying in different classes and are putting up with the petitioner at Kasur. Therefore, their convenience is that guardian petition should be heard at Kasur to save them from travelling from Kasur to Lahore. If this is done then there is no justification to keep the suit for restitution of conjugal rights filed by the respondent pending at Lahore.

7. The apprehension of the respondent that the purpose of the petitioner is only to cause delay in the adjudication of the matter would disappear the moment a direction is issued to the trial Court to expeditiously decide the matters. The other apprehension that the brother of the petitioner, who is employed as Ahlmad in the Court of Mr. Karamat Ali Sheikh, Civil Judge, shall influence the litigation is not well founded. Anyhow, the trial Court is directed to ensure that the said Court official does not cause any harassment to the respondent. 1.

8. Upshot of the above discussion is that while accepting the application the guardian petition filed by the respondent and pending in the Court of Syed Nasir Ali Shah, Guardian Judge, Lahore is withdrawn and transferred to the Court of the Senior Civil Judge, Kasur, while the suits filed by the petitioner for dissolution of marriage and grant. of maintenance which are pending in the Court of Mr. Sardar Muhammad Rana, Judge Family Court, Kasur as well as the suit for restitution of conjugal rights filed by the respondent and pending in the Court of Ch. Farooq Altaf, Judge Family Court, Lahore are withdrawn in exercise of suo motu powers under section 25-A of the Family Courts Act, 1964 and also transferred to the Court of the Senior Civil Judge, Kasur. He is also directed to decide all the matters expeditiously, in any case, by the 30th of May, 1994 even if he has to hold day to day proceedings. There will be-no order as to costs. A.A./S-424/L Transfer application accepted.