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-- S. 9-West Pakistan Family Courts Act (XXXV of 1964), S. 25-A-Custody of minor-Application for-Transfer of-Requirements-Powers under S. 25-A, West Pakistan Family Courts Ordinance, held, could be exercised unfettered by any restrictive consideration flowing from S. 9 of Guardians and Wards Act Power of transfer of case would not be restricted to cases where transferee Court was possessed of jurisdiction to deal therewith-Mst. Kaneez Fatima v. Bashir Ahmad 1980 C L C 865 dissented from].

Muhammad 11yas v. Mst. Zarina P L D 1983 Lah. 462; Syed Widhal Shah and another v. Syed Ghulam Nab Shah and others P L D 1965 Kar. 84; Mat. Kaneez Fatima v. Bashir Ahmad 1980 C L C 865; Mst. Azizan v. Mst. Jannat 1979 C L C 116; Muhammad Siddlque Siddiqi v. Mst. Aziz Bibi and 3 others P L D 1970 Lah. 596 and Mst. Zubaida Begum v. Chaudhari Ghulam Rasul P L D 1959 Lah. 967 ref.

Mst. Kaneez Fatima v. Bashir Ahmad 1980 C L C 865 dissented from.

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

--- S. 9--Phrase "ordinarily resides", connotation of.-[Words and phrases].

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

S-----. 25-A-Guardians and Wards Act (VIII of 1890), S. 9-Custody of minor-Transfer of-High Court being invested with power to transfer case from one Family Court to another Family Court ordered transfer of case for custody of minor pending in Family Court at F' to Family Court at G', where minor was residing with mother.

(d) Guardians and Wards Act tV111 of 1890)--

--- S. 25-Words "Notwithstanding anything contained in law" Effect.

Muhammad Aslam Nagi for Petitioner.

A. K. Dogar for Respondent.

Dates of hearing : 28th June; 7th July and 20th September, 1986.

This petition under section 25-A of the West Pakistan Family Courts Act, 1964 prays for the transfer of the case titled 'Muhammad Sarwar v. Mst. Aysha Bibi' from the Court of Malik Dost Muhammad, Senior Civil Judge/Judge Family Court, Faisalabad to any other Court of competent jurisdiction at Gujrat.

2. The facts giving rise to the present petition may briefly be stated as under;

Out of the wedlock of Mst. Aisha Bibi, the petitioner, with Muhammad Sarwar, respondent, a daughter namely, Farida Yasmeen and one son namely Sarfraz Ali were born. Both are still minors. The parties could not get along and the petitioner instituted a suit for dissolution of marriage against the respondent before the Family Court at Gujrat. The Talaq between them has become effective from 18-3-1986. The minor son Sarfraz Ali is, however, living with the petitioner.

The respondent has filed an application under section 17 of the Guardians and Wards Act. 1890 before the Family Court/Guardian Judge, Faisalabad for obtaining the custody of the minor Sarfraz Ali. The transfer of this application has been sought for through the present petition and it has been asserted that the story of removal of the minor from the custody of the respondent at Faisalabad is a mere concoction fabricated to create a case for conferring jurisdiction on the Faisalabad Court whereas, in fact, the minor has all along been living with the petitioner at Gujrat and the respondent himself is not residing at Faisalabad but is a Motor Mechanic carrying on his work at Multan. It has also been asserted that the filing of the application at Faisalabad is only to cause harassment to the petitioner and to take custody of the minor through force.

3. The learned counsel for the petitioner has contended;

First, that even according to the application of the respondent under section 17 of the Guardians and Wards Act, the minor is living with the petitioner at Gujrat and there is thus no impediment in the way of transfer of the case to a Gujrat Court.

Secondly, that previous litigation between the parties viz. the divorce suit filed by the petitioner against the respondent was also pending before the Family Court at Gujrat and the Talaq in pursuance f the said proceedings has also been finalized on 18-3-1986 at Gujrat.

Thirdly, that the petitioner being a woman it would be highly inconvenient for her to defend the application at Faisalabad especially when she has meagre financial resources. Reliance was placed in regard on Muhammad Ilyas v. Mst. Zarina P L D 1983 Lab. 462;

Fourthly, that the petitioner apprehends danger to her life and person if she goes all the way from Gujrat to Faisalabad to defend herself there; and;

Lastly, that according to section 9 of the Guardians and Wards Act the application for custody of minor could only be filed by the respondent at the place where the minor is residing and this being the admitted position that the minor at present is living with the petitioner at Gujrat the application may be transferred to Gujrat Court so that it be tried there. In support of the above contention reliance has been placed on Syed Widhal Shah and another v. Syed Ghulam Nabi Shah and others P L D 1965 (W. P.) Kar. 84.

4. On the contrary, the learned counsel for the respondent submitted that the jurisdiction to try the application of respondent under section 17 of the Guardians and Wards Act is only of the Court at Faisalabad from where the minor child was removed from the custody of his father that is the respondent and, therefore, the suit cannot be transferred to a Court at any other place as it would amount to conferring jurisdiction on a Court to try the matter for which the transferee Court would otherwise be not possessed of the jurisdiction. In support of the above contention reliance was place on Mst. Kaneez Fatima v. Bashir Ahmad (1).

The learned counsel for the respondent next contended that the words Ordinarily resides' as used in section 9 of the Guardians and Wards Act mean the ordinary residence under law which obviously was the residence of the minor with his father. Reference in this regard was made to Mst. Azizan v. Mst. Jannat (2); Muhammad Siddique Siddlqi v. Mst. Aziz Bibi and 3 others (3) and Mst. Zubaida Begum v. Chaudhari Ghulam Rasul (4).

(1) 1980 C L C 865 (2) 1979 C L C 116

(3) P L D 1970 Lab. 596 (4) P L D 1959 Lab. 967

The only other contention raised on behalf of the respondent was that if sections 25 and 25-A (3) of the Family Courts Act, 1964 are read with section 9 of the Guardians and Wards Act, 1890, it becomes clear that section 25-A of the Family Courts Act cannot be invoked to seek the transfer of cases from the Family Courts filed under the Guardians and Wards Act.

5. In reply, the learned counsel for the petitioner submitted that since section 5 of the Family Courts Act confers jurisdiction on the Family Courts to try all matters relating to custody of children, the transfer of such matters from the Family Courts is covered by section 25-A of the Family Courts Act.

6. The contentions raised on behalf of the respondent being in essence preliminary objections, it would be appropriate to deal with them first.

Relying upon 1980 C L C 865 it has been argued by the learned counsel for the respondent that transfer of a case under section 25-A of the West Pakistan Family Courts Act, 1964 is possible only if the transferee Court is possessed of jurisdiction to deal with the matter under section 9 of the Guardians and Wards Act as by transfer the High Court cannot confer jurisdiction on a Court not otherwise possessed of the same. For facility of reference section 25-A is reproduced hereunder:

"Notwithstanding anything contained in any law the High Court may either on the application of any party or of its own accord, by an order in writing:

(a) transfer any suit or proceeding under this Act from one Family Court to another Family Court in the same district or from a Family Court of one district to Family Court of another district; and

(b) transfer any appeal or proceeding under this Act from the District Court of one district to the District Court of another district.

(2) A District Court may, either on the application of any party or of its own accord, by an order in writing transfer any suitor proceeding under this Act from one Family Court to another Family Court in a district or to itself and dispose it of as a Family Court.

(3) Any Court to which a suit, appeal or proceeding is transferred under the preceding subsection, shall, notwithstanding anything contained in this Act, have the jurisdiction to dispose it of in the manner as if it were instituted or filed before it:

Provided that on the transfer of a suit, it shall not be necessary to commence the proceeding before the succeeding Judge de novo unless the Judge, for reasons to be recorded in writing, directs otherwise."

7. In my view this argument has been advanced. without taking notice of the underlined opening words of section 25-A of the Family Courts Act. It is plain that the phrase copied above is intended to give an overriding effect to section 25-A ibid and power thereunder can be exercised unfettered by any restrictive consideration flowing from section 9 of the Guardians and Wards Act. As such the power of transfer is no restricted to cases where the transferee Court is possessed of jurisdiction to deal with the same. A contrary interpretation will render the opening words of section 25-A of the West Pakistan Family Courts Act, 1964 as nugatory and redundant. Redundancy, it is well-settled, cannot be attributed to the Legislature. Accordingly I have no hesitation in holding that the power of transfer exercisable under section 25-A is not fettered by the consideration that the transferee Court should also possess jurisdiction to deal with the case under section 9 of the Guardians and Wards Act. In the above view of the matter I am unable to agree with the contention raised on behalf of the respondent and am constrained to take a view different from the one taken in Mst. Kaneez Fatima v. Bashir Ahmad.

It may further be added that in the cited case the significance of the opening overriding words occurring in section 25-A of the West Pakistan Family Courts Act were not brought to the notice of the Court. The decision in the aforecited case as it appears from the following observations in para. 3 thereof:

"As against the convenience of the mother rule 9 of the Guardians and Wards Act (actually it is section 9 of the Guardians and Wards Act) read with section 25 of the Family Courts Act was set up in order to show that it should be tried at a place where the minors are actually- residing. Prima facie this contention was held to be sound but not followed as it was a reference under section 14."

(Words in brackets are mine).

essentially proceeded on the basis of the case Dr. Rauf Ahmad v. Mst. Razia Farhat P L D 1971 Kar. 897, the judgment in which was delivered when section 25-A of the Family Courts Act was not promulgated.

8. The last contention raised by the learned counsel for the respondent also stands adequately dealt with by the discussion made above. However, before parting with this aspect of the matter, it may also be pertinently observed that reference to section 25 of the West Pakistan Family Courts Act, 1964 and section 9 of the. Guardians and Wards Act, 1890 as contained in 1980 C L C 865 in support of the dictum given therein cannot serve to lend support to the said dictum inasmuch as section 25 ibid appertains in express terms only to procedure for trial of cases before a Family Court under the Guardians and Wards Act and consequently reliance thereupon as placed by the learned counsel for the respondent to canvass that section 25-A of West Pakistan Family Courts Act, 1964 will not be applicable to transfer of cases from the Family Courts filed under the Guardians and Wards Act is of questionable relevance.

9. I do not feel inclined to dilate on the second contention raised on behalf of the respondent as it is not germane at this stage to the controversy involved in this petition and otherwise also any comments on it by this Court may cause prejudice to the case of either of the parties before the Courts below.

10. Adverting now to the merits of the case I suffice by observing the apart altogether from the fact that the contentions raised on behalf of the petitioner in this regard have not been controverted on behalf of the respondent, these otherwise also have force and find support from the' precedent case law on the subject of transfer of cases arising under the Family Courts Act.

11. In view of the foregoing discussion allowing this petition, I direct that the case titled 'Muhammad Sarwar v. Mst. Aysha Bibi' be withdrawn from the Court of Malik Dost Muhammad Guardian Judge/Judge Fancily Court (Senior Civil Judge), Faisalabad and entrusted to the Judge Family Court (Senior Civil Judge) Gujrat for adjudication in accordance with law.

There will, however, be no order as to costs.

Parties shall appear before the transferee Court on 26-10-1986.

The Court at Faisalabad from which the case has been withdrawn shall ensure that the record of the case reaches the transferee Court well in advance of the date fixed above.

A. A. Transfer application allowed.

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