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2017 C L C Note 162

[Lahore]

Before Amin-ud-Din Khan, J

HUMA KHAWAR and 2 others—Petitioners

Versus

KHAWAR AQEEL AHMAD and another—Respondents

W.P. No. 7341 of 2012, decided on 18th July, 2016.

Major Muhammad Kahlid Karim v. Mst. Saadia Yaqub and others PLD 2012 SC 66 rel.

Sh. Usman Karim-ud-Din for Petitioners.

Miss Ummara Mustafa for Respondent No.1.

Date of hearing: 18th July, 2016.

JUDGMENT

AMIN-UD-DIN KHAN, J.—Through this writ petition the petitioner, who is respondent in an application filed under section 25 of the Guardians and Wards Act, 1890, has challenged the order dated 10.03.2012 passed by the learned Guardian Judge, Lahore, whereby an application moved by the petitioner for return of guardian application and to file the same before an appropriate forum has been dismissed.

2. Learned counsel for the petitioner argues that the respondent Khawar Aqeel Ahmad filed an application under section 25 of the Guardians and Wards Act, 1890 for the appointment of guardian of minors who are in the custody of Huma Khawar. During the pendency of guardian application the present writ petitioner moved an application before the learned Guardian Judge that the application moved under section 25 of the Guardians and Wards Act is not proceed able on the ground that after promulgation of West Pakistan Family Courts Act, 1964 all matters relating to guardianship and custody of the minors are in the exclusive jurisdiction of family court established under section 3 of the above said Act, therefore, application filed under section 25 of the Guardians and Wards Act be returned. Learned counsel states that an application under section 25 of the Act ibid was filed before the learned Guardian Judge, Lahore established under section 4-A of the Guardians and Wards Act; that actually the Guardian Courts established under section 4-A of this Act can have jurisdiction to proceed with the case if the case is filed before the learned District Judge and transferred to the Guardian Judge established under section 4-A of the Guardians and Wards Act at Lahore; that after the enforcement of West Pakistan Family Courts Act, 1964 the matter of appointment of guardian come within the exclusive jurisdiction of the Family Courts established under section 3 of the said Act and therefore, the order of dismissal of application is absolutely against the above jurisdiction. Relies upon “PLD 2012 Supreme Court 66 (Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others), PLJ 1986 SC 39 (Ihsan-ur-Rehman v. Mst. Najma Parveen), PLD 1969 Supreme Court 187 (Adnan Afzal v. Capt. Sher Afzal), PLD 2009 Lahore 657 (Ahmad Khan Niazi v. Town Municipal Administration, Lahore through Town Municipal Officer and 2 others) and KLR 1987 Civil Cases 436 (Asif Mowjee v. Mst. Fatema A. Mowjee and others)”.

3. On the other hand, learned counsel for the respondent while relying upon “PLD 1997 Lahore 541 (Mst. Tehmina Khan v. Muhammad Jehanzeb Khan Bharwana), PLD 1990 Lahore 350 (Muhammad Hayat v. Additional District Judge 1st, Okara and 2 others) and 2015 CLC 706 (Zill-e-Huma v. Province of Punjab and others)” states that guardian application for appointment of guardian of minors has rightly been filed and the order impugned is in accordance with law. Prays for dismissal of this writ petition.

4. I have heard the learned counsel for the parties at length and gone through the case law referred to by the learned counsel for the parties.

5. I have the honour to go through the celebrated judgment of august Supreme Court of Pakistan reported as “PLD 2012 Supreme Court 66 (Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others)” as it is stricto sensu applicable to the facts of this case and by discussing the entire controversy which has been agitated before this court through this writ petition it will be beneficial to reproduce Paragraphs Nos.5 to 8, which are as under:-

“5. Heard. Prior to the enforcement of Family Courts Act, 1964, the disputes, relating to and concerning the family affairs (except guardianship etc.) such as the dissolution of marriage, recovery of dower, dowery, maintenance, enforcement of conjugal rights and jactitation etc. (subject to the amendment of the schedule to the Act 1964 from time to time) were within the jurisdiction of ordinary civil court. Whereas, the issues about the guardianship and custody of the minors were the subject matter of the Guardian Courts constituted under Guardians and Wards Act, 1890. It seems that on account of delays, in the adjudication of this class of cases, which possible was due to the complexity of procedure and the rush of work in such courts, but undoubtedly was adversely affecting the family union and comity, the legislature in order to prevent the above enforced the Act, 1964. It is so clear from the preamble of the Act that this law was enforced with a vivid object to take out the matters falling within the ambit thereof from the ordinary regime qua dispensation of justice, and for the expeditious disposal of such matters, special forum was created in which the rigors of procedural implications and the requirements of the Evidence Law (Qanun-e-Shahadat Order, 1984) were either dispensed with or were simplified with an addition of a statutory mechanism, enabling the parties for an amicable settlement of their disputes, through the courtesy of the Court was provided. Therefore, to achieve the aforesaid object, section 5 of the Act, 1964 conferred exclusive jurisdiction to the Family Court to entertain, hear and adjudicate upon matters specified in Part-I of the schedule to the Act. It may be pertinent to refer here, that if the original Act, 1964 is examined there were six entries/items to the schedule, relating to the matters about dissolution of marriage, dower, maintenance, restitution of conjugal rights, custody of the children and guardianship. However, these items have been increased from time to time e.g. khula is added to the dissolution cases; the custody issues also involve visitation rights of the parents to meet the minors; jactitation of marriage, dowery, personal property and personal belongings of the wife have also been made party thereof and subjected to the jurisdiction of the Family Court. Furthermore, subsections (4) and (5) to section 1 of the Act, 1964 were added which read:–

“(4) Nothing in this Act shall apply to any suit, or any application under the Guardians and Wards Act 1890, pending for trial or hearing in any Court immediately before the coming into force of this Act, and all such suits and applications shall be heard and disposed of as if this Act were not in force.

(5) Any suit, or any application under the Guardians and Wards Act, 1890, which was pending for trial or hearing in any court immediately before the coming into force of this Act, and which has been dismissed solely on the ground that such suit or application is to be tried by a Family Court established under this Act, shall notwithstanding anything to the contrary contained in any law, on petition made to it in that behalf by any party to the suit or application be tried and heard by such Court from the stage at which such suit or application had reached at the time of its dismissal.”

Whereas, section 20 confers powers upon the Family Court to exercise all powers of Judicial Magistrate of first class under the Code of Civil Procedure. Likewise, under section 25 of the Act, 1964, it is enunciated “a Family Court shall be deemed to be a District Court for the purpose of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act, shall in dealing with the matter specified in that Act, follow the procedure prescribed in that Act”. Besides, for the purposes of inter alia the ‘territorial jurisdiction’ of the Family Court the Family Court Rules, 1965 were enforced; the Rule 6 whereof prescribes the Court shall have the jurisdiction to try a suit will be that within the local limits of which:-

(a) the cause of action wholly or in part has arisen;

or

(b) where the parties reside or last resided together;

Provided that in suits for dissolution of marriage or dower, the court within the local limits of which the wife ordinarily resides shall also have jurisdiction.

6. After the enforcement of the Act, 1964 the questions arose about the exclusivity of Family Courts jurisdiction and in the judgment reported as Noor Zaman v. Mst. Saidano (PLD 1967 Peshawar 343) while considering the proposition, though in relation to a maintenance dispute which (maintenance) could also be earlier granted by the Magistrate in terms of Section 488 of Criminal Procedure Code it was held “it is well established principle of law that where Special Tribunal is created, then by necessary implication the jurisdiction of the ordinary Courts is excluded even in the absence of the express words ousting the jurisdiction of the ordinary Court. The words “exclusive jurisdiction to entertain, hear and adjudicate upon matters” occurring in section 5 of the Act expressly oust the jurisdiction of the ordinary courts, in regard to the six matters enumerated in the Schedule including the “maintenance”, and if any doubt is left about exclusive jurisdiction in regard to order of maintenance under section 488, Cr.P.C. the same is resolved by sections 14 and 20 of the Family Courts Act”. In Alifdin v. Shaukat Ali (PLD 1969 Peshawar 62) considering the effect of section 5 of the Act, 1964 and the extent of ouster of ordinary courts jurisdiction it was conspicuously and categorically held that the Family Court shall have exclusive jurisdiction to entertain, hear and adjudicate the matters specified in the schedules. This shall cover all the three stages of the proceedings i.e. the time of initiation, process of proceedings and the final adjudication of the dispute, therefore, it was stipulated that “this provides sufficient scope for the proposition that if a matter has been entertained in another forum, on the coming into force of the Act if that matter has gone to the exclusive jurisdiction of a forum created by the Act, it shall be heard and adjudicated by the new forum”. In Muhammad Amin v. Mst. Surraya Begum and others (PLD 1969 Lahore 512) while interpreting section 8 of the Muslim Family Law Ordinance, 1961 and section 5 of the Act, 1964 in unequivocal terms the Court ordained “if however, section 8 of the Ordinance were so construed as leading inferentially to the ouster of jurisdiction of civil Courts, the subsequent vesting of exclusive jurisdiction in the Family Courts would be obviously repugnant to such a construction of the provision contained in section 8 of the Ordinance in which case the latter would prevail”. The question about the exclusive jurisdiction of the Family Court constituted under the Act, 1964 and the ouster of jurisdiction of other forums came under consideration before this Court in Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) though in connection with the issue of maintenance relating again to section 488, Cr.P.C. and this Court held: “Furthermore; the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, in any way, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters. Looking at the provisions as a whole it is therefore clear that all that the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has thus in every sense of the term brought about only procedural changes and not affected any substantive right. According to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication. There is no such contrary indication in the West Pakistan Family Courts Act. It could, therefore, rightly be held that the Act affected also pending proceedings and Magistrates have no longer any jurisdiction either to entertain, hear or adjudicate upon a matter relating to maintenance”.

7. In order to comprehend the ratio of the case Anne Zehra (supra), reference to which has also been made in the order of this Court dated 7-10-2009, the facts thereof needs to be mentioned: the minor/son of the divorced parents was perhaps abroad with his mother (Anne Zehra) when the father (Tahir Ali Khilji) initiated guardianship and custody proceedings by moving an application under sections 12 and 25 of the Guardians and Wards Act before the Guardian Judge, Lahore, who without calling for any reply from Mr. Khilji returned the application for presentation before the appropriate court, as the learned Guardian Judge was of the view that he was not vested with the jurisdiction to try the matter. The appeal of the father before the Additional District Judge also could not succeed, but his challenge to both these orders before the High Court turned fruitful and by setting aside the orders, the case was sent back to the Guardian Court to decide the applications afresh. It is in the above factual backdrop, the matter came before this Court wherein after considering the relevant provisions of both the statutes it was held: “under section 25 (ibid), a Family Court, thus seized of a matter brought before it in respect of any matter included in the schedule was deemed to be a Court of a District Judge for the purposes of Guardians and Wards Act and notwithstanding anything contained in the Family Courts Act would, in dealing with the matters specified in this Act, follow the procedure prescribed in the Guardians and Wards Act, 1890″……Para 6: “It is manifestly clear from the express provisions of the Family Courts Act that it is the Family Court under the said Act which has to be approached in the cases relating to custody of minors, which Act has overriding effect over the Guardians and Wards Act, therefore, the question of territorial jurisdiction is to be decided under the said Act and the rules framed thereunder and the Guardians and Wards Act for that matter has no relevancy (emphasis supplied). Rule 6 of the West Pakistan Family Courts Rules, 1965, framed under the West Pakistan Family Courts Act, 1964 provides that the Court which shall have jurisdiction to try a suit will be that within the local limits of which the cause of action wholly or in part has arisen or where the parties reside or last resided together, therefore, it was under the provisions of the said rule that the question of territorial jurisdiction of the Family Court was to be decided under the said Act and not under the provisions of the Guardians and Wards Act. The Guardian Judge as also the learned Additional District Judge, however, decided the question of territorial jurisdiction in this case by applying the provisions of the Guardians and Wards Act and not the West Pakistan Family Courts Act, 1964 and the rules framed thereunder which as held by the High Court in the impugned judgment was not correctly decided”. About the plea raised in that case, that “territorial jurisdiction” is a procedural question therefore should be settled under the Guardians and Wards Act, the Court held to contend that the question of forum being a matter of procedure, therefore, should have been decided in view of the provisions of the Guardians and Wards Act. We are afraid, the argument is plainly unsound and cannot be accepted on any reason”. It was further held “the Family Court shall have jurisdiction to entertain such a petition shall have to be decided under the provisions of the said Act and the rules framed thereunder and once a Family Court is approached accordingly by a party considering that a particular Family Court was vested with the territorial jurisdiction to entertain the petition, for the purposes of the trial of the same, the procedure as prescribed under the said Act is not to be followed but the general procedure for the trial of suit under the Civil Procedure Code has to be followed which has no nexus or relevancy with the question of determination of the Trial Jurisdiction of the Court. By virtue of section 25 of the West Pakistan Family Courts Act, every Family Court, has been designated as the District Court, therefore, there is no Guardian Judge as such under the Guardians and Wards Act whereas the Family Court under the said Act competently seized of a matter relating to matter of minors shall be deemed to be a District Court”…. Moreover, “it has been rightly held by the High Court, therefore, that the Family Court/District Judge in which Court the present petition for custody of minor was filed should decide the question of territorial jurisdiction in the light of the rules framed under the Family Courts Act after giving opportunities to the parties to prove their respective contentions in respect thereof after recording evidence to the effect whether requirements of Rule 6 (ibid) are satisfied in order to attract the jurisdiction of the said Court”.

8. From the above dictum, the relevant portions whereof, have been quoted in extensor it is abundantly and unequivocally clear, that on the enforcement of the Act, 1964, the Family Court was vested with the exclusive jurisdiction to entertain, hear and adjudicate the matters covered by the Act, 1964 and no other court. At this juncture, it may be also mentioned that the above view is also fortified from the provisions of subsections (4) and (5) of section 1 of the Act, 1964, because it only had saved those cases for the jurisdiction of the Guardian Court which were pending at the time when the Act, 1964 came into force, while all future matters which otherwise would have been within the jurisdiction of the Guardians and Wards Act were subjected to the jurisdiction of the Family Court.”

After going through the above referred judgment it is clear that the matter mentioned under section 5 of the West Pakistan Family Courts Act, 1964, the Family Court has exclusive jurisdiction to entertain, hear and adjudicate all the matters which fall within the 1st schedule of the Act which admittedly includes the custody and guardianship matter. In this view of the matter, there is no need to further dilate upon the matter and discuss the other judgments referred to by the learned counsel for the parties, as the judgments relied by the learned counsel for the respondent are of Lahore High Court, whereas I have referred the latest judgment pronounced by the august Supreme Court of Pakistan. Therefore, no need to discuss the judgments passed by the Lahore High Court. In this view of the matter, the order passed by the learned Guardian Judge is without jurisdiction. It is declared as such. This writ petition is allowed and the Guardian Judge shall return the application for custody of minors filed under section 25 of the Guardians and Wards Act, 1890 to the mover of application for presentation of the same before the appropriate forum.

WA/H-18/L Petition allowed.

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