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(a) West Pakistan Family Courts Act (XXXV of 1964)--

---S. 5--Custody and guardianship of minor--Family Court is conferred jurisdiction to entertain, hear and adjudicate upon matters specified in Schedule and its items 5 and 6 relate to custody of child and guardianship--Senior Civil Judge/Family Judge, therefore, can entertain application for guardianship--Order of appointment of guardian having been upheld in appeal filed in District Court against order of Senior Civil Judge/Family Court, for all purposes, would be deemed to have been made by District Court itself.

(b) Constitution of Pakistan (1973)--

---Art. 199--Petitioner only sat on a fence to take a chance of a favourable decision and only after losing case there he came to High Court to claim discretionary relief--Petitioner, held, became disentitled to any relief due to his conduct.

(c) West Pakistan Family Courts Act (XXXV of 1964)--

--S. 5--Constitution of Pakistan (1973), Art. 199- Welfare of minor- Question of fact--Not liable to be contested in constitutional proceedings.

(d) Muhammadan Law--

---Guardianship--Mother's mother of minor has first right of guardianship--Father's father would come in only in default of all females.

Iqbal Ahmad for Petitioner.

Petitioner Wali Dad and respondent Feroze, being respectively the paternal and maternal-grandfathers of the minor Tariq Mahmood son of Muhammad Hayat, brought two separate applications in July, 1983 with respective Nos.22/Il and 18/II of 1983 before the Senior Civil Judge/Guardian Judge, Attock for their being appointed to be the guardian of the minor who was born on 7-4-1979. Both the applications were consolidated and by his order, dated 1-12-1984, learned Guardian Judge preferred the claim of Feroze respondent and appointed him the guardian of person and property of the minor for the reason, among others, that mother of the minor having died earlier he was left by his father with Feroze respondent, his maternal-grandfather, where he has been brought up by his wife Mst. Jehan Begum eversince the death of the minor's mother taken place during his infancy and even after the death of the minor's father who died a year afterwards and that there was no allegation of negligence or lack of care of the minor levelled against them so that by now the minor would even have developed affection and love for his maternal-grandparents and there was no cause for his removal from them particularly when the grand-father of the minor was a widower and was himself being looked after by his sons and daughter-in-law. Minor was getting proper education in the house of his maternal-grandparents and in all that period petitioner had not taken any interest in the minor. In consequence, petitioner's application was dismissed by the learned Guardian Judge.

2. Thereagainst, petitioner filed an appeal before the District Judge, Attock wherein he himself impleaded the maternal-grandmother of the minor as the second respondent. A learned Additional District Judge heard the appeal and dismissed it by his order, dated 9-5-1985 by affirming the conclusions of the Guardian Judge. In paragraph 8 of his judgment he has observed:-

"Keeping in view the family life of both 'the sides, Feroze respondent has an edge over the appellant. The record gleans out that there is more tranquility and peace in the house of the respondents as compared to the family life of the appellant. If during his lifetime father of the deceased chose to live in the house of his in-laws, then without his father the minor cannot lead a happy life there. The maternal-grandmother is living and this is another factor which goes in favour of the respondents."

3. Petitioner, paternal grand-father of the minor, has moved the present constitutional petition to once again agitate for his appointment as guardian of the minor in preference to his maternal-grandparents, of whom the maternal-grandmother has also been impleaded as respondent No.4 with her name mentioned as Mst. Jan Begum.

4. The facts concurrently found by the two Courts below to leave the minor with the respondents by appointing the maternal-grandfather Feroze as the guardian are not disputed by the learned counsel who has assailed the appointment on the ground that the Court of the Senior Civil Judge is not a District Court within the meaning of section 4(4) of the Guardians and Wards Act, 1890 and the petitions of the parties having been instituted directly before the Senior Civil Judge and not having been received by him through transfer from the District Court concerned, his order is without jurisdiction.

5. I do not find substance in the contention of the learned counsel due to the provisions of sections 3, 7 and 25 of the Family Courts Act, 1964 which respectively provide for establishment of Family Courts, institution of suits before Family Courts by presentation of plaint and 11 Family Court being deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890. By virtue of section 5 of the Family Courts Act, 1964, Family Court has been conferred exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule and its items 5 and 6 relate to custody of children and guardianship. Thus, there does not appear anything wrong in the respective applications having been entertained and decided by the learned Senior Civil Judge/Family Judge, Attock. It will also be in point to recall that even though respondent was appointed as guardian ultimately in the application of the respondent, yet, the order stands equally passed in the application filed by the petitioner in that Court and it was not the application of respondent alone which had been filed in that Court. Be that as it may, the order of appointment of guardian having been upheld in the appeal filed by the petitioner in the District Court, the appointment of the maternal-grandfather as a guardian of the minor will, for all intents and purposes, be deemed to have been made by the District Court itself.

6. Not only that the objection with regard to jurisdiction of the learned Senior Civil Judge/Family Judge was not raised either before him or in the petitioner's appeal filed in the District Court but also the petitioner had himself filed the connected application in the same, Court. Therein he only sat on a fence to take chance of a favourable, decision and only after losing the case there he has come upto this Court to claim discretionary relief whereto he has become disentitled on account of his above-noticed conduct. Case of Ghulam Mohi-ud-Din reported as P L D 1964 S C 829 is directly in point.

7. There is yet another aspect of the matter, namely, that whereas it has been found on good reasons based on the evidence led by the parties that welfare of the minor lies in his being allowed to live with his maternal-grandparents and this, as has been held in Rahimullah Choudhury v. Mrs. Sayeda Helali Begum and others 1974 S C M R 305, is a conclusion relating to a question of pure fact which has not been disputed by the petitioner and would not, as such, be normally liable to be contested in writ-proceedings in this Court and even according to the order of preference mentioned in para.353 of Mulla's Mahomedan Law mother's mother of the minor has the first right and by virtue of para. 355 ibid father's father would come in only in default of all the females listed in para. 353. Therefore, in either way, petitioner has no case to urge in the presence of the maternal-grandparents of the minor as respondents, of whom his maternal-grandmother has been arrayed by the petitioner himself to compete in the matter.

8. For all the foregoing reasons, there is no force in the writ petition which is accordingly dismissed in limine. .

M.B.A. Petition dismissed.

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