1988 PLP 1029 (CLC)

Date of hearing: 29th February, 1988. In this Constitutional Petition the petitioner challenges the judgment, dated 15‑3‑1987, passed by the learned IInd Addl. Sessions Judge (West), Karachi.

2. The facts leading to this petition are, that the parties were legally married. Four children were born out of this wedlock, out of whom one died, but three children are still alive, out of whom two minor children, namely, Saira Masood and Khalid Masood are living with their mother, the respondent No.l. The parties were admittedly residing at Karachi, when on 13‑10‑1980, the respondent No.l left for Dera Ghazi Khan alongwith her aforementioned minor children. She continued to reside there with children till she was divorced by the applicant on 13‑4‑1982. Soon after divorce, the applicant filed an application under section 25 of the Guardians and Wards Act for the custody of the said minor children. The learned 1st Sr. Civil Judge (West) Karachi vide judgment dated 5‑1‑1986, awarded the custody of the minors to the applicant. In appeal the learned District Judge (West), Karachi, vide impugned judgment set aside the order of the learned 1st Sr. Civil Judge on the ground, that Court at' Karachi has no jurisdiction.

3. The facts of the case are not disputed. The only point, that requires consideration by this Court is, as to where minors would be deemed to be ordinarily residing. Under section 9 of the Guardians and Wards Act, "the application in respect of guardianship of the person of minor shall be made to the District Court, having jurisdiction in the place, where minors ordinary reside." Mr. Abdul Majid Wyne, learned counsel for the petitioner contended, that the minors would be deemed to be in the constructive custody of their father viz. the petitioner, and therefore, the place, where the father resides, will be deemed to be the place where the minors ordinary resident. In his support he has relied upon the cases of Muhammad Bashir v. Ghulam Fatima (P L D 1953 Lah. 73) Mehmooda Khatoon v. Syed Zainul Hussain Rizvi (P L D 1958 W.P. High Court Kar. 150) and E.C. Ratti v. Arthur Denis (P L D 1975 Quetta 35).

4. In the case of Muhammad Bashir, the minor girl had remained with her mother after divorce from minor's father and the father, on the girl's reaching puberty applied for the custody of the minor girl. It was objected, that the minor had neither left nor had been removed from the custody of her father, therefore, the application was incompetent. The learned Single Judge of the High Court held, that father should be deemed in law to be in constructive custody of the minor, and the custody mentioned in section 25 is actual as well as constructive custody and therefore the legal guardian should be deemed to be in constructive custody of the minor. In the case of Mst. Mehmooda Khatoon, a Division Bench of Karachi Bench of erstwhile High Court of West Pakistan held, that the actual residence of the minors at the time of the application under the Act, was immaterial, but the place of Guardian should be deemed to be place of residence of Ward. In that case the mother of the minor children, under the orders of the Court of a Magistrate of Karachi, was able to leave the house of her husband alongwith children on 10‑8‑1955 and on 12‑8‑1955, the respondent made application under section 25 of the Guardians and Wards Act. In the case of Ratti, the mother of the minors had left for Saudi Arabia, but the minors remained with the father. The maternal‑grandfather had taken the children to Hyderabad for a short sojourn giving express undertaking to return children within ten days. On his failure to return the children, the father filed an application for custody of the minor. It was held by the Court, that the presumption, that the minors reside at the place, where the Guardian resides, is rebuttable but mere casual residence of minors for two months at Hyderabad in the circumstances did not divest the jurisdiction of the Court at Quetta to entertain the petition under section 25 of the Guardians and Wards Act.

5. The facts of the instant case are obviously distinguishable from the facts of the reported cases. In the instant case, the minors admittedly stayed at Dera Ghazi Khan with their mother for two years before the institution of the application under the Guardians and Wards Act. The petitioner has admitted in his evidence, that he used to send money order for the maintenance of minors which was being refused by the respondent No.l. He has further stated, that he tried to see the minors in October, 1983, but the respondent No. l did not allow him to see the minors. Admittedly, the petitioner pronounced divorce in writing to the respondent No.l, but even in this divorce deed, no objection appears to have been raised to state of the minors with the petitioner. The minors' stay at Dera Ghaz' Khan for such a long period cannot be said to be of such temporar nature so as not to rebut the legal presumption, about the residence of the minors. ‑

6. Mr. Mirza Muhammad Kazim, learned counsel for the respondent No.l has relied upon the cases of Shaikh Muhammad Rasheed v. Zar Nigar Qaiser Shaikh (P L D 1980 Lah. 61), Niaz Ahmed v. Nasim Akhtar (C L C 1983 183), and Faheem Khokhar v. Zaibunnissa (PLD 1968 Kar. 774), In the case of Muhammad Rasheed, it was held, that in simple case of removal of children from place of residence of Guardian to another place, the children would be deemed or presumed to be residing where they are actually living. Reference was made to the case of Muhammad Siddique v. Aziz Bibi (P L D 1970 Lah. 596), wherein expression "where the minor ordinarily resides" was explained as follows:‑ " . . . . 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 recognized 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 recognized by law. Ix is true that a minor would ordinarily reside at a place where the guardian resides, but cases can arise in which the minors were allowed to be taken away to a place outside the jursidiction of the Court within the jurisdiction of which the guardian ordinarily resides. If 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 minor was ordinarily residing within the jurisdiction of the Court." The Court has then distinguished cases in which the minor was removed with the ulterior object of taking away the jurisdiction of the‑Court. It was observed:‑ 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 has 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 guardiah 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 abovementioned initial presumption is to be taken to have been rebutted." In the case of Niaz Ahmed the High Court upheld the findings of the Courts below, that ordinary residence of the minor would be mother's house, where they were living before the pronouncement of Talaq. In the above case reference was made to the case of Mst. Zubaida Begum v. Choudhry Ghulam Rasul (P L D 1959 Lah. 967). It will be worthwhile to reproduce the observations made by the learned judge in the above case as follows:‑ "Considering the entire material on the record, I have arrived at the conclusion that the initial presumption that the minor was ordinarily residing at the place where the guardian resides was rebutted in this case also because the child had been living at Sialkot for over two years, while the father was admit tedly living at Lahore at the time of the presentation of the application and would appear to have been living there eversince the 10th of December, 1954. It follows that the Guardian Court at Lahore had no jurisdiction to hear the application under section 25 of the Guardians and Wards Act. Consequently, I accept the petition for revision and direct that the application under section 25 of the Guardians and Wards Act shall be returned to the applicant for presentation to the proper Court." In the case of Fahimuddin Khokhar, Qadiruddin J. (as his Lordship then was) had defined 'ordinary residence' to mean a place of person's repose. It was further held, that when a minor is removed from the custody of the guardian, he acquires habitation at same place and, therefore, cannot be presumed to reside at the place where the guardian resides. It was also observed that 'Residence' was the question of fact and the initial presumption that residence of ward is residence of guardian was rebuttable. In that case the child was removed from Karachi to Kuwait by mother during continuance of wedlock and was residing with mother even after divorce. It was held that child was not residing within the jurisdiction of Karachi Court where father lived.

7. As pointed above in the instant case the minor children were taken away by respondent No.l to Dera Ghazi Khan with consent o the petitioner during the continuance of the wedlock and continued to reside with her even after divorce, without any interruption or even attempt on the part of petitioner to bring them back. The presumption that they would be deemed to be ordinarily residin where the petitioner resides stands rebutted by the admitted fact, that they had been residing at Dera Ghazi Khan for the last two years before filing of the application under the Guardians and Ward Act. As such I do not find any reason to interfere with the finding of the learned Appellate Court, that the minors were residing at Dera Ghazi Khan, and therefore, the Court of Karachi had n jurisdiction. Even otherwise, grant of relief in a constitutional petition is ‑the discretion of the Court to be exercised keeping in view facts C of each case. In the instant case the rights of the petitioner are not finally decided by the Court, but option is left open to him to seek relief from the Court at Dera Ghazi Khan. Under the circumstances, the petition is dismissed with no orders as to costs. A . A . /M‑427/ K . Petition dismissed