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Miscellaneous Appeal No. 35 of 1965, decided on 1st April 1968.

Ss. 4(2), (S), 9(i) & 25‑Expressions "guardianship", "custody " and "ordinary residence"‑Not synonymous terms‑"Guardian" as defined in S. 4(2)‑Means person having de facto or de jute care of person/property of minor‑Such person may or may not have custody of minor "Custody"‑Meaning‑Actual or constructive possession for purpose of, protection‑"Protection" and "care" distinguished‑"Protection" denotes preservation whereas "care" denotes responsibility for welfare‑Expression "ordinary residence" has nothing common with these conceptions‑"Ordinary residence" means place of a person's repose‑Minor removed from custody of guardian acquiring residence at some other place‑Cannot ‑ be presumed to reside at place where guardian resides‑Residence question of fact‑Initial presumption that minor ordinarily resides at place of guardian's residence ‑ Rebuttable ‑ Child having been removed from Karachi to Kuwait by mother during continuance of wedlock, residing with mother even alter divorce- Child, held; was not residing within jurisdiction of Karachi Court where father lived, for purpose of application under S. 25 Short visit of child to Karachi-Cannot extend jurisdiction of Karachi Court in terms of Ss. 9( ) 4(5)(iii)(b).

Ali Akbar v. Mst. Kaniz Maryam P L D 1956 Lah. 484 distin guished.

Mst. Nazir Begum v. Ghulam Qadir Khan A I R 1938 Lab. 313; Syed Widhal Shah v. Syed Ghulam Nabi Shah P L D 1965 Kar. 84 and Mst. Zubaida. Begum v. Ch. Ghulam Rasul P L D 1959 Lah. 967 ref.

S. A. Ashfaq for Appellant.

M. Ilyas Ahmed for Respondent.

Date of hearing : 1st April 1968.

This Miscellaneous Appeal is directed against the order of an Additional District Judge, Karachi dated the 24th of February 1965 by which be dismissed an application of the present appli cant, under section 25 of the Guardians and Wards Act. The reason was that he came to the conclusion that 'he had no juris diction to entertain it.

2. The facts which form the background, briefly stated, are that the parties were married in Karachi on 12‑7‑1958, and .on the 25th of July 1960, a daughter Surrayya Jabeen, was born to them. On .the 9th of May 1962, the mother went to Kuwait, and took the child along with her. Counsel for the appellant says that the father had permitted her to take the child away for a few days' time only, but she stayed with the child in Kuwait up to the 4th of May 1964. On that date, the appellant wrote a letter to her communicating divorce, offering to return the articles that were given to her in dower, and requesting her 7 to make arrangements for returning the child within 30 days' time. The divorced wife did not comply with the request, and litigation commenced between the parties. The divorced wife made an application for maintenance under section 488, Cr. P. Code. Thereafter, the father made an application under section 25 of the Guardians and Wards Act, 1890 on. the 6th of July 1964 for getting the custody of the child. He alleged in the application that the divorced wife had prevented him from ‑seeing the child, that she had removed the child from his custody, that she bad no permanent abode in Karachi, and that she was in Karachi only to prosecute the Court cases. The application was resisted by the divorced wife and was dismissed by the Additional District Judge, Karachi on the 24th of February 1965, as men tioned above.

3. Mr. S. A. Ashfaq, appearing in these proceedings on behalf of the appellant, has advanced two arguments in criticism of the view taken by the trial Court. He said firstly that the appellant being the father of the child, was her natural guardian so long as she did not attain puberty. The age of the child was 4 years when the application for her custody was made, but the father is still her guardian irrespective of the entitlement of the mother to the physical custody of the ward or Hizanat ; there ‑fore, the facts of this case should be interpreted to mean that the child was removed from the custody of the appellant. The removal took place, according to him, in June 1962, when the time granted by the appellant to the mother for keeping the child in Kuwait expired. Thus, according to counsel, the removal of the child took place from the constructive custody of the father in Kuwait; and since the guardianship of the father constructively extended from. Karachi to Kuwait, the removal took place from the jurisdiction of the Courts of Karachi, where the father was.

4. In support of the above proposition, counsel has relied on the case of Ali Akbar v. Mst. Kaniz Maryam (P L D 1956 Lah. 484). The relevant observation in that judgment is as follows:

"There can be no doubt that at the time the respondent took the minor to Karachi, the minor's ordinary place of residence was at Lahore (where the parents resided). The respondent took him away before the divorce, and it cannot be said that she took him away with the intention of never returning. The residence of the minor did not change with the temporary absence from, Karachi. When the appellant divorced the respondent, it cannot be said that the ordinary residence of the minor changed with the fact of the divorce. In any case, on the principle accepted in Mst. Nazir Begum v. Ghulam Qadir Khan and" others A I R 1938 Lah. 313 the Court from whose jurisdiction the minor was removed (i. e. the Court of Lahore), has jurisdiction to entertain the application. It may be stated that the application was filed soon after the divorce."

5. In the above quotation the words underlined by me should: be noted. They are important. As against those facts, the follow ing statements which are contained in paragraph 2 of the memo randum of this appeal are significant:

"The respondent at the instigation of her parents avoided to join the appellant as from her subsequent conduct after 9‑5‑1962, it appeared that she had gone to Kuwait not on, account of the illness of her mother, but to remove the appel lant's minor daughter from Karachi‑ to Kuwait through deceitful means with the ulterior object of taking her away from ‑the jurisdiction of the Court in Pakistan in general and Karachi Court in particular."

The above pleas leave no doubt that, according to the father, the removal of the child from Karachi was deceitful, but not temporary, and that it was also removal from the jurisdiction of the Courts of Pakistan generally, and of the Courts of Karachi particularly.

6. In order to fully understand the legal situation, I should note that granting the proposition that the child was under the natural guardianship of the father until the repudiation of his guardianship by the conduct of the mother, or by de facto termination , of that guardianship at Kuwait, a question arises as to whether, "guardianship", "custody" and "ordinary residence" are in any sense synonymous terms. They are not, because a guardian, as defined in clause (2) of section 4 of the Guardians and Wards Act, 1890 means a person having de facto or de jure care of the person and/or property of a minor. Such a person may or may not have the custody of the minor. For instance the guardian does not have the custody of the person of the minor when the minor is under the guardianship of the father, but is in the Hizanat or custody of the mother. "Custody" means actual or constructive possession for purposes of protection. The difference between protection' and 'care' is that protection denotes preservation whereas care denotes responsibility for welfare. The expression 'ordinary residence' has nothing common with these conceptions. It means the place of a person's repose‑where a person usually, or habitually remains when not called elsewhere for any other purpose. This understanding of the terminology leads to the conclusion that after a minor is removed from the custody of his guardian, he may or may not be ordinarily residing anywhere for sometime, but thereafter he is bound to acquire such a habitation, unless he‑belongs to a tribe of nomads. When he ordinarily resides at a place, it cannot be said that he should be presumed to reside where his guardian resides, because resi dence is a question of fact. There is, of course, a presumption that the residence of a ward is the residence of his guardian, but it can be rebutted. In this case, the child has resided in Kuwait for two years after the divorce of her mother and was admittedly removed from the jurisdiction of Karachi Courts.

7. In the above circumstances, I cannot conclude that the minor girl was residing within the jurisdiction of Karachi Courts. The following observations quoted in Syed Widhal Shah v. Syed Ghulam Nabi Shah (P L D 1965 Kar. 84), from the judgment given in Mst. Zubaida Begum v. Ch. Ghulam Rasul (P L D 1959 Lah. 967), aptly explains the legal aspect of this case:

"It is true that a minor would ordinarily reside at a place where the guardian resides, but cases can arise and in the present case that is the allegation‑in which the minors were allowed to be taken away to a place outside the jurisdiction of the Court within the jurisdiction of which the guardian ordinarily resides. 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 sub sequently 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 the minor was ordinarily residing within the jurisdiction of that Court. 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 had 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 guardian resides the initial presumption should be that the ward is ordinarily residing at the place where the guardian 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 above‑mentioned initial presumption, is to be taken to have been rebutted."

8. So much about the first argument of counsel. His second argument was that the lower Court disregarded the factual presence of the minor in Karachi, and has thus complicated matters. In this connection, I should mention that the divorced wife and the minor child are admittedly in Kuwait, and have been in Kuwait, excepting for short periods of time, from may 1962. Counsel for the respondent says that the minor was in Karachi on one day only for being produced in Court proceed ings under section 488, Cr. P. C. Without going into the question of actual duration of the minors presence in Karachi, it is obvious that an order made by the Courts at Karachi cannot be enforced in Kuwait; therefore, any Court at Karachi before making such an order will have to pay good attention to its enforceability. But counsel for the appellant has contended that this difficulty has arisen now owing to previous inaction of the lower Court. It was not existing at the time at which the appellant had moved the Court under section 25 of the Guardians and Wards Act, 1890, because at that time the mother of the minor was in Karachi and the minor was produced in Court at least for once. If the Courts at Karachi had acted at that time, the appellant would not have been in the difficulties which beset him now. This argument of counsel is in disregard of the words:

"Court having jurisdiction in the place where the minor ordinarily resides,"

which occur in subsection (1) 'of section 9, and the definition of the words the Court' as given in sub‑clause (iii) of clause (b of subsection (5) of section 4 of the Guardians and Ward Act, 1890. The meaning and implications of these expres sions have already been discussed in paragraphs 6 and 7 above.

9. In conclusion, I dismiss this appeal with no order as to costs.

A. E. Appeal dismissed.

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