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Criminal Miscellaneous No. 1340 of 1985, decided on 18th January, 1987.

(a) Interpretation of statutes----

Every expression or words of statute has to be interpreted in its ordinary sense and no word of the statute is to be considered as superfluous.

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

-- S. 26-West Pakistan Family Courts Rules, 1965, R. 6-Rule to be interpreted in a sense which is in consonance with provisions of the Act.-[Interpretation of statutes].

(c) Guardians and Wards Act (VIII of 1890)

S. 9-West Pakistan Family Courts Act (XXXV of 1964), S. 25 Guardianship-Custody of minor-Jurisdiction of Court-Application for custody of minor is maintainable at a place where cause of action has arisen-Such application can also be moved in a place where the minor ordinarily resides-Application for guardianship would be maintainable only in a Court where the minor ordinarily resides-Ordinary residence of minor, therefore, would give the Court jurisdiction to adjudicate upon the matter.

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

-- S. 25-Guardians and Wards Act (VIII of 1890), Ss. 9 & 7 Appointment of guardian and return of custody are two different things-Law and procedure for moving application to Court in both the cases detailed.

No doubt under the Act XXXV of 1964 the Family Court has exclusive jurisdiction for the appointment of guardian of minor and the custody of minor, as the Act of 1964 has not repealed the provisions of the Act of 1890 specifically or by implication as is clear from section 25 of Act of 1964, appointment of guardian and return of custody are two different things. In the first case, a right of intending guardian has to be established and the applicant has to prove that he or she is a fit person to be appointed guardian of minor. In deciding such application the Court has to consider certain facts. On the other hand in the second case an application for custody of the minor can be made during the period of Hizanat or after the expiry of this period. It is also immaterial that a person has been appointed a guardian by the Court. The natural guardian acts as guardian without even obtaining any certificate from the Court. For the custody of a minor it is not at all necessary that guardian of the person of the minor has been appointed by Court or for that matter any such application is pending. Even if right of guardianship has not been estab lished in a Court of law, an application for the custody of the minor would be maintainable in the Family Court. The Family Court would grant the relief if it is proved to the satisfaction of the Court that removal of the minor from the custody of one of the spouses is illegal or improper. Though in technical terms the custody of the minor means the entitlement of the mother to keep the child during Hizanat and it is a right of Hizanat which entitles the mother to the custody of her minor child upto a certain age according to the sex of the child and in accordance with their personal law as the father is the natural guardian of the minor under the Muhammadan Law. But every petition for the custody of the minor would be maintainable in the Family Court whether such petition would be on the ground of forcible and illegal removal of the minor from the custody of his lawful guardian or during the period of Hizanat. However, a petition for the appointment of a guardian of the person or the property of the minor can only be made in the Court where the minor ordinarily resides and in such case no other Court has territorial jurisdiction to decide such issue. Section 9 of the Act of 1890 has clearly mentioned that an application would lie in a place where the minor ordinarily resides.

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

S. 25-Guardians and Wards Act (VIII of 1890), Ss. 9 & 7 Petition for custody of minor-Jurisdiction of Court-Respondent (mother) residing at K, minor also residing at K-Respondent refused to return custody of minor to petitioner (father) after expiry of period of hizanat-Family Court at K has jurisdiction, as part of cause of action has arisen at K-[Jurisdiction].

(f ) Criminal Procedure Code (V of 1898)-

-- S. 491-Guardians and Wards Act (VIII of 1890), S. 9-Custody of minor -Application under S. 491, Cr. P. C. may be maintainable where custody of minor is found to be illegal and an emergent relief is necessary in the interest of the minor.

(g) Criminal Procedure Code (V of 1898)--

---S. 491-Guardians and Wards Act (VIII of 1890), S. 9-Custody of minor -Habeas Corpus petition-Mother refusing to deliver custody of minor to father after expiry of period of Hizanat-Mother, held, could not be saddled with criminal liability if she refuses to deliver custody of the minor after period of Hizanat-Once it is determined that custody of a minor is not illegal, application under S. 491, Cr. P. C. was not maintainable.

A mother cannot be saddled with criminal liability if she refused to deliver the custody of the minor after the period of Hizanat.

If the mother is guilty of an offence of kidnapping then she must be prosecuted on this charge in an appropriate criminal proceedings, and in such circumstances an application for the custody of the minor can be made.

After the expiry of period of Hizanat appropriate legal course must be adopted and by no stretch of legal acumen it can be argued that the mother who had brought the minor to a place with the consent of the father would be guilty of misfeasance so as to compel her to return the child in the summary proceedings under section 491, Cr. P. C. The custody of the minor is neither illegal nor improper. In the present set of facts, once it is determined that the custody of a minor is not illegal, then au application under section 491, Cr. P. C. is not maintainable.

Minor is in the custody of the mother and is not in custody of a stranger, therefore, it is not a case of kidnapping and an application under section 491, Cr. P. C. would not be maintainable.

Section 491, Cr. P. C. though remedial in form pastulates the existence of a substantial right. The Court would grant discretionary relief under section 491, Cr. P. C. when it thinks it fit to exercise in aid of justice and fairplay. Generally where the applicant has another remedy open to him under which rights of the parties can far more satisfactorily be settled then an application under section 491, Cr. P. C. is not maintainable.

In the present case the custody of the minor with the mother is not illegal ; and so far so Court of competent jurisdiction has determined that the mother of the minor is unfit to keep the minor with herself or that she is illegally detaining the minor.

(h) Guardians and Wards Act (VIII of 1890)--

-- Ss. 9 & 7-West Pakistan Family Courts Act (XXXV of 1964), S. 25-West Pakistan Family Courts Rules, 1965, R. 6-Custody of minor-Jurisdiction-Domicile-Place of jurisdiction having specifically been mentioned in Guardians and Wards Act, 1890, West Pakistan Family Courts Act, 1964 and Rules made thereunder in relation to custody of minor, domicile of a child or of father is immaterial in determining forum for resolving dispute as to custody of minor.-[Jurisdiction].

Corpus Juris Secundum, pp. 20 to 22 and Cheshire and North's Private International Law, 10th Edn., p. 178 by P. M. North ref.

(i) Criminal Procedure Code (V of 1898)-

-- S. 491-Guardians and Wards Act (VIII of 1890), S. 9-Custody of minor-Court when can grant discretionary relief under sec tion 491, Cr. P. C.

Section 491, Cr. P. C. though remedial in form pastulates the existence of a substantial right. The Court would grant discretionary relief under section 491, Cr. P. C. when it thinks it fit to exercise in aid of justice and fairplay. Generally where the applicant has another remedy open to him under which rights of the parties can far more satisfactorily be settled then an application under section 491, Cr. P. C. is not maintainable.

When there is a dispute between the parents regarding the custody of the minor then there is no question of forcible removal or detention. The proper remedy for the parties is to move the Guardian Judge for resolving the controversy. However, the position would be different if a minor is removed from the lawful custody of the guardian (whether such right is determined by the Court or not) through deceitful means or by force, then in an appropriate case relief under section 491, Cr. P. C. can be granted to curb the mischief and to punish the wrong-doer as that would advance the cause of justice.

In dealing with the question of custody of the minor under sec tion 491, Cr. P. C., there must be prima facie proof that custody is illegal and improper and the Court while disposing of such application would exercise the jurisdiction in the interest and welfare of minor.

Mukhtaran v. Muhammad Anwar 1979 P Cr. L J Note 151 at p. 96 ; P L D 1974 Kar. 845 ; Najam Sadeque Rasool v. Munira Hamid Rasul and another 1973 P Cr. L J 98 ; Mst. Aisha Bibi v. Nazir and 2 others 1981 S C M R 301 ; Mst. Mariam Rozina v. Robert Ashraf 1985 P Cr. L J 1469 ; Ghulam Muhammad v. Fakir Muhammad and another P L D 1975 Kar. 118 ; 1981 S C M R 301 and Mst. Gullan v. Allah Ditta 1984 P Cr. L J 1047 ref.

(j ) Guardians and Wards Act (VIII of 1890)--

---- S. 9-West Pakistan Family Courts Act (XXXV of 1964), S. 25 Custody of minor-Ordinary residence of minor-Jurisdiction- Question as to ordinary residence of minor being a question of fact could only be decided after taking into consideration all the facts.

In the present case the child has come to Karachi alongwith her mother with the permission of the father and now the child and the mother have obtained the nationality of Pakistan. They are residents of Pakistan for all purposes. The minor is living within the jurisdiction of the Family Court at Karachi. He has been admitted to a school. Section 9 of Act of 1890 speaks about the place where minor ordinarily resides. It is to be construed on the basis of the inquiry, which can only be done by the Family Court. The parties would lead evidence to prove whether the present residence of the minor is the ordinary residence within the meaning of section 9 of the Act of 1890 or the residence of the father would be con sidered as the ordinary residence of the minor so as to oust the jurisdiction of the Family Court for the purpose of appointment of guardian of the minor. This can only fro done after proper inquiry by the Family Court. It cannot be resolved in a summary procedure on the basis of the respective contentions of the parties in this petition.

Mst. Zubaida Begum v. Chaudhri Ghulam Rasul P L D 1959 Lah. 967 ; Mst. Khairun Nisa v. Syed Abdur Rahim P L D 1973 Kar. 237 ; Muhammad Noor v. District Magistrate, Peshawar P L D 1970 S C 273; Rahimullah Choudary v. Mrs. Sayeda Helali Begum and others 1974 S C M R 305 ; Sm. Kamla v. Bhanu Mal A I R 1956 All. 328 ; Fahimuddin Khokhar v. Mst. Zaibunnisa P L D 1968 Kar. 774 ; Mrs. Ammie Besanti v. G. Narayaniah and another A I R 1914 P C 41 and Harihar Pershad Jaiswal v. Suresh Jaiswal and others A I R 1978 Andh. Pra. 13 ref.

Khalid M. Ishaque for Petitioner.

Farooq Noor, A. Q. Halepota and Abdul Ghafoor Mangi, A. A.-G. for Respondents.

Dates of hearing : 30th November; 1st and 2nd December 1986.

JUDGMENT

The petitioner has moved this application under section 491, Cr. P. C. on the following facts;

It is alleged by the petitioner that he is father and natural guardian of minor Kazim Ali who was born' on 10-10-1980. The petitioner is an Indian national by birth and lives in India. The petitioner is in law entitled to physical custody of the minor who is also Shia by birth. The respondent No. 1 is the wife of the petitioner and she is also Asna Ashri. She surrendered her Pakistani nationality and became Indian national. The respondent came to Pakistan on 25-4-1985 to meet her relatives. On 3-6-1985 she informed the petitioner that she would not come back to the family home. The minor son Kazim Ali was with her and she did not send him back to India to the family house. The petitioner came to Pakistan to find out the cause of her sudden change of heart and to persuade her not to break the family. She appeared adamant. The minor Kazim Ali is being detained by the respondent without the permission of the petitioner, therefore, he has moved this application for the custody of the minor. The application has been contested by the respondent.

2. It is contended by the learned counsel for the petitioner that an application for the custody of the minor is not maintainable in the Family Court under the Family Courts Act XXXV of 1964 (hereinafter referred to as the Act of 1964) and the Guardian Court has no jurisdiction to decide the matter. It is urged that under section 9 of the Guardians and Wards Act, 1890 (hereinafter called the Act of 1890), an application with respect to the guardianship of the person of the minor shall be made to the District Court having jurisdiction in the place where minor ordinarily resides. According to the personal law of the parties the period of Hizanat is only two years. After the expiry of this period the father is entitled to the custody of the minor. As the ordinary residence of the minor is Calcutta, in Inda, as such an application for the custody of the minor could only be made at Calcutta. At present the minor is residing in Pakistan and no Family Court within the territorial limit of Pakistan has any jurisdiction to decide the question of custody of the minor, therefore, the only remedy available to the petitioner is to file this application.

3. Learned counsel for the respondent has submitted that the Family Court has exclusive jurisdiction in the matter and the present application is, therefore, not maintainable. It is contended by the learned counsel for the respondent No. 1 that under Rule 6 of the Family Court Rules, that Court shall have jurisdiction within the local limits of which the cause of action wholly or in part has arisen. The minor had come to Karachi and at present he is residing in Karachi, therefore, the cause of action has arisen at Karachi, as such the Family Court at Karachi has jurisdiction in the matter.

4. In order to appreciate the respective contentions of the parties it is necessary to refer to the various provisions of the two relevant laws. Section 5 of the Act of 1964 provides that the Family Court shall have exclusive jurisdiction to entertain, hear and adjudicate upon the matter specified in the Schedule. Item numbers 5 and 6 of the Schedule relate to the custody of children and guardianship respectively. Section 25 of the same Act stipulates that a Family Court shall be deemed to be a District Court for the purposes of the Act of 1890 and notwithstanding anything contained in this Act (Act of 1890) shall in dealing with the matters specified in that Act, follow the procedure prescribed in that Act. The Court has been defined in section 4 (5) (b) (ii) of the Act of 1890 as under;

"In any matter relating to the person of the ward, the District Court having jurisdiction in the place where the ward for the time being ordinarily resides."

Under section 7 of Act of 1890 the welfare of the minor would be the paramount consideration in appointing a guardian of his person or pro perty. Under section 17 of the same Act the Court would consider certain facts in appointing a guardian. According to section 19 the Court would not appoint guardian in certain cases. Under section 25 if a ward leaves or is removed from the custody of a guardian of his person the Court may return the ward to the custody of his guardian if it is of the opinion that it may be in the welfare of the minor. Schedule to Act of 1964 has mentioned custody of minor and guardianship of minor distinctly. There are two different items. Every expression or word of statute has to be interpreted in its ordinary sense and no word of the statute shall be considered as superfluous. Rule 6 has to be interpreted in a sense which is in consonance with the provisions of the Act. In my view in the matter of the custody of the minor an application is maintainable at a place where cause of action has arisen. Such an application can also be moved in a place where the minor ordinarily resides. As regards guardianship application an application would be maintainable only in a Court where the minor ordinarily resides. By means of section 25 of the Act of 196 provisions of Guardians and Wards Act have been saved and the ordinary residence of the minor would give the Court jurisdiction to adjudicate upon the matter. It is urged by the learned counsel for the petitioner that as the ordinary residence of the minor is Calcutta, therefore the present peti tion is maintainable.

No doubt under the Act of 1964 the Family Court has exclusive jurisdic tion for the appointment of guardian of minor and the custody of minor, as the Act of 1964 has not repealed the provisions of the Act of 1890 specifically or by implication as is clear from section 25 of Act of 1964. As stated above appointment of guardian and return of custody-are two different things. In the first case, a right of intending guardian has to be established and the applicant has to prove that he or she is a fit person to be appointed guardian of minor. In deciding such application the Court has to consider certain facts. On the other hand in the second case an appli cation for custody of the minor can be made during the period of Hizanat or after the expiry of this period. It is also immateial that a person has been appointed a guardian by the Court. It may be mentioned that the natural guardian acts as guardian without even obtaining any certificate from the Court. For the custody of a minor it is not at all necessary that guardian of the person of the minor has been appointed by Court or for that matter any such application is pending. Even if right of guardianship has not been established in a Court of law, an application for the custody of the minor would be maintainable in the Family Court. The Family C Court would grant the relief if it is proved to the satisfaction of the Court that removal of the minor from the custody of one of the spouses is illegal or improper. Though in technical terms the custody of the minor means the entitlement of the mother to keep the child during Hizanat and it is a right of Hizanat which entitles the mother to the custody of he minor child upto a certain age according to the sex of the child and in accordance with their personal law as the father is the natural guardian of the minor under the Muhammadan Law. But in my view every petition for the custody of the minor would be maintainable in the Family Court whether such petition would be on the ground of forcible and illegal removal of the minor from the custody of his lawful guardian or during the period of Hizanat. However, a petition for the appointment of a guardian of the person or the property of the minor can only be made in the Court where the minor ordinarily resides and in such case no other Court has territorial jurisdiction to decide such issue. Section 9 of the Act of 1890 has clearly mentioned that an application would lie in a place where the minor ordinarily resides.

The petitioner has moved this petition for the custody of the minor. D The respondent No. 1 is residing at Karachi. The minor is also residing at Karachi. The respondent No. 1 has refused to return the custody of the minor to the petitioner after the expiry of period of Hizanat, therefore Karachi Family Court has jurisdiction as part of cause of action has arisen at Karachi.

It is also contended by the learned counsel for the petitioner that a petition under section 491, Cr. P. C. is maintainable even if an application is pending in a Family Court. He has referred to the case of Mst. Rizwana. Bukhari v. Abdul Majeed Shah and another (1984 P Cr. L J 2582) where a mother filed an application under section 491, Cr. P. C. against the grand-father and paternal uncle of the minor and it was observed that the application is maintainable in spite of the fact that proceedings under the Act of 1890 were pending. In para. 9 of the judgment it has been observed as under :-

"The examination of the above provisions of law indicate that mother is entitled to Hizanat of her male child below the age of 7 years, failing the mother the relations 1 to 10 given in para. 353 of the Mahomedan Law are entitled to the custody of the minor and that in para. 353 the grandfather and the paternal uncle do not figure at all. Since the minor is admittedly below 7 years in age, the mother is, therefore, entitled to Hizanat of the minor and the right of the respondents to the custody of the minor has not accrued so far. In these circumstances the custody of the minor by the respondents has to be declared illegal or at least improper."

The facts are distinguishable and not applicable to the present case.

The learned counsel has also referred to the case of Mst. Khurshid Begum v. Muhammad Hussain (1968 P Cr. L J 1090). In this - case allegation of cruelty of step-mother towards the minor was made and in such situation it was observed that in appropriate cases the Court has jurisdiction under section 491, Cr. P. C. but it was further observed that it is not desirable to decide the question of custody under section 491. It was also observed that question of custody has to be determined after recording of evidence in the case, consequently the application was dismissed, by the High Court.

In certain cases an application under section 491, Cr. P. C. may be maintainable where custody is found to be illegal and an emergent relief is necessary in the interest of the minor.

It is argued by the learned counsel for the petitioner that after the expiry of period of Hizanat the custody of the minor with the respondent is illegal and it amounts to kidnapping. He therefore, submitted that on this ground also the present application is maintainable. This proposition cannot be accepted. A mother cannot be saddled with criminal liability if she refuses to deliver the custody of the minor after the period of Hizanat. On the contrary this contention is also self-destructing. If the respondent is guilty of an offence of kidnapping then she must be prosecuted on this charge so in an appropriate criminal proceedings, and in such circum- G stances an application for the custody of the minor can be made but this has not been done in the present case. After the expiry of period of Hizanat appropriate legal course must be adopted and by no stretch of legal acumen it can be argued that the mother who had brought the minor H to Karachi with the consent of the petitioner would be guilty of misfeasance so as to compel her to return the child in the summary proceedings under section 491, Cr. P. C. The custody of the minor is neither illegal nor improper. In the present set of facts once it is determined that the custody of a minor is not illegal, then an application under section 491, Cr. P. C. is not maintainable.

The learned counsel for the petitioner has referred to Curpus Juris Secundum, pages 20 to 22 in support of his contention that the domicile of a legitimate child during minority and until emancipation ordinarily follows that of the father while the latter is alive.

He has also referred to Cheshire and North's Private International Law, 10th Edition, page 178 by P. M. North wherein it is stated that al child acquires at birth a domicile of origin by operation of law, namely, if legitimate and born in his father's life-time the domicile of his father. The question of domicile in relation to the custody of the minor is not' material, because the Guardians and Wards Act and the Family Court Rules have specifically mentioned the place of jurisdiction, therefore, the domicile of a child or of father is immaterial in determining the forum fore resolving the dispute.

5. I agree with Mr. Abdul Ghafoor Mangi, the learned A. A.-G. that the minor is in the custody of the mother and is not in custody of a) stranger, therefore it is not a case of kidnapping and an application under section 491, Cr. P. C. would not be maintainable. Section 491(1) (a)(b) is, the appropriate provision which reads as under :---

"Any High Court may whenever it thinks fit, direct (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law ;

(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty."

A bare perusal of this provision would show that a person is illegally or improperly detained and then he will be set at liberty. In the present case the question of setting at liberty of the child does not arise. Section 491 though remedial in form pastulates the existence of a sub stantial right. The Court would grant discretionary relief under section 491 when it thinks it fit to exercise in aid of justice and fairplay. Generally where the applicant has another remedy open to him under which rights of the parties can for more satisfactorily be settled then an application under section 491 is not maintainable. In the present case the custody of the minor with the mother is not illegal; and so far so Court of competent jurisdiction has determined that the mother of the minor is unfit to keep the minor with herself or that she is illegally detaining the minor.

6. Mr. Khalid M. Ishaque has referred to a number of cases in support of his contention that an application under section 491 is maintain able. I would discuss those cases to show that they are distinguishable.

(i) Mst. Syeda Tllat Zohra v. Syed Mahfooz Hussain Shah etc. N L R 1983 Cr. L J 178. This case is not relevant as compromise was affected in proceedings under section 491.

(ii) Subbaswami Goundan v. Kamakshi Ammal and another A I R 1929 Mad. 834. The facts of this case are not identical with the instant case. This was a case where a Hindu minor girl came to stay with her parents with the consent of the husband and it was observed that a remedy under section 491 is open to the husband. It may be noted that under section 19 of the Act of 1890 the Court is not authorised to appoint a guardian of a minor who is a married female and whose husband is not in the opinion of the Court unfit to be guardian of her person.

(iii) Mst. Gullan v. Allah Dirta 1984 P Cr. L J 1047. In this case a child of 7/8 years was forcibly removed from the custody of her mother and she started. crying in Court that she wanted to go with her mother and in such circumstances it was observed that the custody is illegal and the High Court exercised its jurisdiction under section 491.

(iv) P. Venkataramaniah Chetty v. Pappamah A I R 1948 Mad. 103. In this case it has been observed that after the marriage the husband would be lawful guardian of his minor wife. A husband is entitled to proceed under section 491, Cr. P. C. to recover the custody of his minor wife. (The case is distinguishable).

(v) Mushtaq Ahmed v. Mirza Muhammad Amin and anotl er P L D 1962 (W. P.) Kar. 442. The facts are distinguishable. These are cases in which it has been held that even when the wife is a minor the Court has no power under the Guardians and Wards Act to appoint a guardian of her person unless it was of the opinion that the husband was an unfit person in that regard.

(vi) Muhammad Rashid v. Mst. Zarnigar Qa1ser Sheikh P L D 1980 Lab. 61. The facts are distinguishable. In this case it has been held that if the removal of the child is recent and secured by deceitful then an application would be maintainable in Courts within whose jurisdiction child ordinarily resides. Therefore, this case is not helpful to the petitioner.

7. On the other hand there are number of cases where it has been held that special jurisdiction under section 491 is not maintainable

(i) In the case of Mukhtaran v. Muhammad Anwar 1979 P Cr. L J Note 151 at p. 96 the facts were that the father of the minor forcibly removed the minor from the custody of the mother and it was observed that habeas corpus application is not maintainable.

(ii) P L D 1974 Kar. 845. In this case it has been observed that no right vested in strangers to make an application under section 491. (This authority is not applicable).

(iii) Najam Sadeque Rasool v. Munira Hamid Rasul and another 1973 P Cr. L J 98. In this case it was held that petition under section 491 does not lie as the remedy for the petitioner is to approach the Family Court.

(iY) Mst. Aisha Bibi v. Nazir and 2 others 1981 S C M R 301. In this case it has been held that the dispute between the parties essentially regarding custody of a girl and no question of forcible detention arising. This was essentially a matter for the Guardian Judge to decide.

(v) Mst. Mariam Rozina v. Robert Ashraf 1985 P Cr. L J 1469. In this case it was observed that it was inconceivable that the girl would be in illegal custody of the father so as to attract the provisions of section 491.

(vi) Ghulam Muhammad v. Fakir Muhammad and another P L D 1975 Kar. 118. In this case it has been held that it is only obvious that this case essentially relates to a dispute regarding matrimonial affairs, it must, therefore, be laid before the Family Court of relevant jurisdiction, rather than before the High Court in its extraordinary jurisdiction under section 491, Cr. P. C.

8. The overall conclusion would be that when there is a dispute between the parents regarding the custody of the minor then there is no question of forcible removal or detention. As held by the Hon'ble Supreme Court in 1981 S C M R 301, the proper remedy for the parties is to move the Guardian Judge for resolving the controversy. However, M the position would have been different if a minor is removed from the lawful custody of the guardian (whether such right is determined by the Court or not) through deceitful means or by force, then in an appropriate case relief under section 491, Cr. P. C. can be granted to curb the mischief and to punish the wrong-doer as that would advance the cause of justice and reference may be made to Mst. Ghullan v. Allah Ditta (1984 P Cr. L J 1047) referred to above. In dealing with the question of custody of the minor under section 491, there must be prima facie proof that custody is illegal and improper and the Court while disposing of such application would exercise the jurisdiction in the interest and welfare of minor.

9. I would now deal with the contention of the learned counsel for the petitioner about ordinary residence of the minor. The learned counsel submitted that the domicile of the child is the domicile of the father. He has cited Mst. Zubaida Begum v. Chaudhri Ghulam Rasul (P L D 1959 Lah. 967) and Mst. Khairun Nisa v. Sayed Abdur Rahim (P L D 1973 Kar. 237), in support of his contention. In the first cited case it has been observed that the ordinary residence does not include casual residence and forcible removal of minor from place of residence does not take away the right of guardian to apply under section 25 in whose jurisdiction he resides. The following observation at page 971 is relevant:

"According to well-recognised 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 arid violence cannot be done to the language of the section for reasons which, though they may be laudable, are not recognised by law. It is true that a minor would ordinarily reside at a place where 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. 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 subsequent ly, 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 applicant had been put in, it should nevertheless be held that the minor was ordinarily residing within the jurisdiction of that Court."

It is a question of fact as to what is the ordinary residence of the' minor which could only be decided after taking into consideration allia the facts.

In the second case the marriage took place at K' and the parties resided together at K', the minor whose custody was claimed was also lawfully or otherwise at K', therefore, it was held that prima facie Court at K' had jurisdiction.

10. On the other hand learned counsel for the respondent has cited certain cases where the principle of ordinary residence has been inter preted;

(i) Muhammad Noor v. The District Magistrate, Peshawar P L D 1970 S C 273. In this case it has been observed that the words ordinary residence' must be given their ordinary and usual meaning connoting some habit of life and in contrast with extraordinary, occasional and temporary residence.

(ii) Rahimullah Choudhry v. Mrs. Sayeda Helali Begum and others 1974 S C M R 305. A question of fact to be resolved on materials placed before Judge and not on basis of any presumption-Conten tion that while determining welfare of minor Court has to set consistently with minor's personal law, held not correct-Mother may be deprived of custody of children of tender age only when paramount consideration of their welfare so demands. It is further observed that paramount consideration is the welfare of the minor and in leaving ordinary place of residence, respondent did not lose her right of Hizanat.

(iii) Sm. Kamla v. Bhanu Mal A I R 1956 All. 328. It is held that in exercising power under section 14, the residence of the minor is not the only or sole consideration which the High Court is bound to take in deciding the forum where the proceedings are to continue. Section 9 does not restrict the wide powers of High Court;

"Where the minor leaves the place where she had been residing as a permanent resident for good and goes to some other place and lives there for a considerable time, her children who live with her to which she has shifted. The past abode, for however long a period it may be, cannot be considered to be the place where the minors are residing. The words used are in the present tense i. e. where the minor ordinarily resides'."

(iv) Fahimuddin Khokhar v. Mst. Zaibunnisa P L D 1968 Kar. 774. In this case it has been held that mother went to Kuwait and took the child alongwith her. The father had permitted her to take the child away for a few days time only. Child was not residing within the jurisdiction of Karachi Court where father was living for the purpose of application under section 25. Short visit of child cannot take away jurisdiction of Karachi Court.

(v) Mrs. Ammie Besanti v. G. Narayaniah and another A I R 1914 P C 41. In this case it has been held as under

"The jurisdiction of District Court is under section 9 of the Guardians and Wards Act confined to infants ordinarily resident in the district and cannot extend to infants who had months previously left India with a view to being educated in England and going to the Univer sity of Oxford."

(vi) Harihar Pershad Jaiswal v. Suresh Jaiswal and others A I R 1978 Andh. Pra. 13. In this case it has been held as under;

"If the expression place of ordinary residence' means the residence of his natural guardian, the very purpose of using the words 'the residence of the minor' in section 9 would be lost. It is not the place of residence of the natural guardian that gives the jurisdiction to the Court under section 9(1) but it is the place of ordinary residence .of the minor and the Legislature has designedly used the words 'where the minor ordinarily resides'. Hence the actual residence of the minor, having regard to the circumstances under which the minor happens to reside at a particular place must be taken j into consideration in deciding the place where the minor ordinarily resides."

11. It is submitted by Mr. Halepota that the respondent had filed an application for custody of minor and petitioner had contested that application. The petitioner submitted to the jurisdiction of Court. After dismissal of application petitioner obtained a warrant for production of minor. The petitioner is estopped to challenge the jurisdiction. This contention has no force. The petitioner has nut filed any application for custody. The petition has taken the objection of jurisdiction in the written statement. The petitioner contested the application as respondent. It cannot be said that he submitted to jurisdiction.

12. The admitted facts are that the child has come to Karachi along with her mother with the permission of the petitioner and now the child and the mother have obtained the nationality of Pakistan. They are residents of Pakistan for all purposes, the minor is living within the jurisdiction of the Family Court at Karachi. He has been admitted to a school. Section 9 of Act of 1890 speaks about the place where minor ordinarily resides. It is to be construed on the basis of the inquiry, which can only be done by the Family Court. The parties would lead evidence to prove whether the present residence of the minor is the ordinary residence within the meaning of section 9 of the Act of 1890, or the residence of the father would be considered as the ordinary residence of the minor so as to oust the jurisdiction of the Family Court for the purpose of appointment of guardian of the minor. This can only be done after proper inquiry by the Family Court. It cannot be resolved in a summary procedure on the basis of the respective contentions of the parties in this petition. However, in view of the fact stated above the custody of the minor cannot be delivered to the petitioner under section 491 and he should approach the Family Court for the same purpose. This petition has no force, the same stands dismissed.

M. B. A./A.2/K Petition dismissed.