THE HIGH COURT OF SINDH AT KARACHI
Constitutional Petition No.S-813 of 2020
Petitioner : Usman Hamid son of Hamid Pervaiz
Through Ms. Saleeha Naeem, Advocate;
Respondent No.1 : Mst. Sundus Wahid d/o Abdul Wahid
Through Mr. Abdul Sadiq Tanoli, Advocate
Respondents No.2 & 3: Model Civil Appellate Court, District Judge, Malir, Karachi and VIII Civil and Family Judge, Malir, Karachi Through Qazi M. Bashir, Assistant Advocate General, Sindh
Date of hearing : 01.12.2020
Date of Order : 01.12.2020
Judgment
Abdul Maalik Gaddi, J. - Through this Constitutional Petition, the petitioner has called in-question the order dated 12.10.2020 passed by the learned District Judge, Malir, Karachi in Family Appeal No.45/2020, whereby the order dated 20.8.2020 passed by learned VIII-Judicial Magistrate/ Family Judge, Malir, Karachi in Guardian and Wards Application No.03/2020 was maintained and the application dated 19.02.2020 filed by the petitioner with regard to challenging the territorial jurisdiction of the trial Court for return of guardian application filed by respondent No.1 was dismissed.
2. Brief facts of the case are that the petitioner was married with respondent No.1 on 28.12.2015 at Karachi against the dower amount of Rs.5,00,000/- and from this wedlock a baba child namely Muhammad Zaym Usman was born on 22.10.2016. It is alleged in the Petition that the respondent No.1 was doing job with Zellbury brand, when the marriage was intact and she used to go office at 07:30 a.m. and return till 08:00 p.m. at that time the minor was at home, look after by the petitioner or his parents and respondent No.1 being patient of Schizophrenia and was under medical treatment and she always left the house of the petitioner for her parent’s house and minor was being looked after by petitioner’s parents. It is also alleged that soon after marriage, some domestic issues were arose between them and finally on 29.8.2018, the respondent No.1 was left the petitioner’s house leaving the minor at home, where the petitioner and his parents were looking after the minor. However, due to family dispute both the parties were mutually agreed on Khula, handing over dowry articles and custody of minor son, on 16.9.2018 a consent divorce deed/ Khulanama was executed between the parties in presence of their parents and the custody of minor was handed over permanently to the petitioner but visiting rights to respondent No.1 to see and meet with the minor was allowed. Thereafter, the petitioner was shifted to Islamabad along with minor, then respondent No.1 filed application under Section 25 of Guardian and Wards Act, 1890 for custody of minor and during the pendency of the said application before trial Court, the petitioner filed application dated 19.02.2020 challenging the jurisdiction of the trial Court, which was resisted by the respondent No.1 by filing her counter-affidavit denying the allegations of petitioner, however, after hearing the parties, the application filed by the petitioner with regard to jurisdiction of the trial Court has been dismissed and the said order has been maintained by the Appellate Court. Hence this Petition.
3. It is inter-alia contended by learned counsel for petitioner that the orders passed by two Courts below dated 20.8.2020 and 12.10.2020 are against law and facts and according to her the minor ward is in the lawful custody of his real father and both the father and minor are living at Islamabad and the minor ward is residing out of the territorial jurisdiction of the trial Court so also away from the domain of the trial Court, hence the petitioner filed application with regard to challenging the jurisdiction of the trial Court, but the same was rejected by the trial Court as well as Appellate Court without assigning any valid reason. During the course of arguments, she has also reiterated the same facts and grounds, which the petitioner has agitated in the memo of Petition and has prayed to set aside the said orders and allow the Petition as prayed.
4. As against this, learned counsel for respondent No.1 has supported the impugned orders passed by the two Courts below and submitted that the marriage of the parties was solemnized at Karachi and minor was also born in Karachi and thereafter till September 2018 minor was residing in Karachi in the custody of petitioner and such length of time was good enough to mean that minor was already residing in Karachi in territorial jurisdiction of trial Court and not in Islamabad. He further submits that the petitioner is claiming his residence at Islamabad with single aim to defeat guardian and wards application on technical grounds. Respondent No.1 Mst. Sundus Wahid is also present and submitted that she has not seen her son for the last two years and the petitioner is dragging her on one excuse or other and contended that minor is still residing within the jurisdiction of Malir.
5. I have heard the learned counsel for parties at a considerable length and have gone through the case papers so made available before me.
6. It is an admitted fact that the petitioner was married with respondent No.1 and from this wedlock a baba child namely Muhammad Zaym Usman was born on 22.10.2016 and presently the minor ward is in the custody of petitioner. It is stated by the counsel for petitioner that minor ward is residing with the petitioner in Islamabad, therefore, trial Court had no jurisdiction to proceed and entertain the guardian and ward application already filed by the respondent No.1 for want of jurisdiction, as the minor is residing beyond the territorial jurisdiction of the trial Court. This fact has been denied by the counsel for the respondent No.1 and he has also refuted all the allegations as leveled in this Petition and submitted that minor ward is still residing within the territorial jurisdiction of the trial Court but the respondent No.1 has filed the application dated 19.02.2020 just to defeat the case and claim of the petitioner.
7. It is noted that the contention of both the parties have been considered by both Courts below and the learned Civil Judge and Judicial Magistrate while considering all these facts passed the following order, which reads as under:
“Perusal of record reveals that applicant is the real mother of minor while the respondent is real father of minor. Out of wedlock of applicant and respondent, minor Muhammad Zayam Usman was born on dated 22.10.2016 and marriage of the applicant and respondent was dissolved with mutual consent of both the parties in the month of September 2018 and after dissolution of marriage the custody of minor remained with respondent. Thereafter applicant filed present G&W application for permanent custody of minor on 24.12.2019 and after receiving the summons respondent appeared through his attorney and filed an application for dismissal of G&W application of applicant on the ground of lack of jurisdiction. I have perused the entire record but nothing found which support the contents of respondent’s application, respondent side took a plea that minor is residing at Islamabad along with respondent therefore this court has no jurisdiction to entertain the present G&W application of applicant but respondent has completely failed to prove the contents of his application with the help of any cogent evidence. On the contrary it is very much clear from record that the marriage of the parties solemnized in Karachi and minor was also born in Karachi and thereafter till September 2018 minor was residing in Karachi in the custody of respondent. Hence in absence of any proof regarding the residence of minor, Karachi would be treated as ordinary residence of minor as the minor was born in Karachi and admittedly he was residing in Karachi till 2018 as such length of time is good enough to mean that minor was ordinarily residing in Karachi not in Islamabad, within the meaning of sec. 09 of G&W Act 1890.”
8. It is pertinent to mention here that the above said order was maintained by the learned Appellate Court and in this regard the findings of the learned Appellate Court as stated in paragraph 5 appears to be very relevant, which are reproduced as under:
“5. During the hearing before this forum the counsel appearing on behalf of appellant has not succeeded to refute the above reproduced observations of the trial Court. The learned trial Court has discussed the factual and legal points in the same order. It is to be noted that in the title of G&W application, the address of Usman Hamid (respondent/ appellant) is shown as Bungalow Director-2, Steel Town, Pakistan Steel Mills, Bin Qasim Town, District Malir, Karachi. While Mst. Sundus Wahid has all along contended that minor is still residing at the same address, and his grandparents are taking care of him. Section 9 of G&W Act provides that ordinary residence of minor shall be the decided factor for filing of application for guardianship of minor. In case of Seherzada Jamali v. Hisham Gilani & others (PLD 2018 SHC 377), where the Hon’ble Sindh High Court has observed that question of jurisdiction even if made dependent an ordinary residence of ward, it may not be a pure question of law rather a mixed question of law and facts, which required determination through evidence. In the same order the Hon’ble High Court has referred to the cases of Mst. Samina Saeed v. Nayyar Nazir and others (1982 CLC 799), 1999 CLC 1137, Khalid Mehmood v. Mst. Ruqia and another, (2004 YLR 325), Muhammad Shafqat v. Additional District Judge, Talagang and others, and PLD 1987 Kar. 239) Asif Mowjee v. Mst. Fatema A. Mowjee and another, and went on to observe as follows:
“However the issue concerning territorial jurisdiction in the custody/ guardianship matter is regulated under West Pakistan Family Courts Act, 1964 and not under the Guardians and Wards Act, 1890. Section 5 of the West Pakistan-Family Courts Act, 1964 deals with the jurisdiction subject to the provisions of Muslim Family Law Ordinance, 1964. The family Courts were entrusted with exclusive jurisdiction to entertain, hear and adjudicate the matters specified in part-1 of the schedule. Part-1 of the schedule in pursuance of Section 5 of the West Pakistan Family Courts Act, 1964 includes the subject of guardianship at serial No.6. Thus the provisions of West Pakistan Family Courts Act, 1964 have overriding effect over Guardians and Wards Act. The jurisdiction is thus regulated under Act of 1964 and the rules framed there-under. Rule 6 as framed under West Pakistan Family Courts Rules, 1965 deals with the jurisdiction to try a suit within the local limits of which;
(a) The cause of action wholly or in part has arisen.
(b) Where the parties reside or last resided together.
In subject clause (b) the word “parties” include “party”. A limited meaning to the word “parties cannot be given, as the later part of this sub-clause serves that purpose in a case where they (both) last resided together. So in case, if any of the party reside within the local limits of a Court or together resided has the jurisdiction. This is in addition to a jurisdiction where the cause of action wholly or in part has arisen.”
9. In this Petition, point of territorial jurisdiction of the trial Court has been agitated and in order to reach at correct conclusion, I have been guided by the case-laws reported as (1) PLD 2012 SC 66 (Major Muhmmad Khalid Karim vs. Mst. Saadia Yaqub and others, (2) PLD 2005 SC 22 (Muhammad Iqbal vs. Parveen Iqbal) and (3) 2001 SCMR 2000 (Anne Zahra vs. Tahir Ali Khilji and others, and it is noted by me that learned Appellate Court as well as trial Court have dealt with this aspect of the matter quite comprehensively in light of all relevant laws dealing with the matter and now before me the petitioner was unable to demonstrate that the impugned orders by any means suffers from any illegality or miscomprehension or non-appreciation of evidence by way of documents available on record. Learned counsel for petitioner has also not been able to satisfy this Court on any ground agitated by him in this Petition to interfere in the impugned orders.
10. In view of the above, the Petition being bereft of merits is dismissed along with listed applications.
11. Before parting with the order, I would like to mention here that the case in hand relates to the dispute of custody of minor in between the parties, therefore, under the circumstances, I am sanguine that the learned Presiding Officer of the trial Court shall conclude the trial expeditiously preferably within the period of 04 months in accordance with law from the receipt of copy of this order and no unnecessary adjournment shall be granted to either side. Compliance report be submitted to this Court through MIT-II. Office is directed to immediately send copy of this order to trial Court through any swift means for information and compliance.
12. It may be mentioned here that this Constitutional Petition was dismissed by me on 01.12.2020 after hearing the parties’ counsel and these are the detailed reasons thereof.
Judge
asim/pa