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Transfer Application No. 117-C of 1986, decided on 17th November 1986.

---S. 25-A--Transfer of family suit---Guardianship case filed by ex-husband against ex--wife or custody of minor children filed at place 'R' sought to by transferred at place 'S' where petitioner wife's case for maintenance was pending--In vow --if tact that e.-husband sad nest sought transfer of case against him no extra inconvenience would be caused to him if his application for custody of children was transferred to 'S' to the same Court with a direction that all matters between parties be fixed on same dates of hearing--Apart from the fact that in matters of family dispute convenience of lady litigant has to be given due consideration, where common questions of law and fact were involved, it would be, held, in the interest of justice to avoid conflict of judgments that such cases be heard by the same Court.

---S. 25-A--Transfer of family suit--Suit filed earlier in time whether impediment in transfer thereof--Filing of suit /application earlier in time, held could not be an impediment for transfer of such suit /application.

---S. 25-A--Transfer of suit--Filing of suit earlier in time, held, could not be impediment for transfer of such suit to be tried and heard with subsequent suit for convenience of parties.

Naveed Rasool Mirza for Petitioner.

Kh. Muhammad Farooq for Respondent.

Date of hearing: 17th November, 1986.

This petition under section 25-A of Family Courts Act, 1964 seeks the transfer of guardianship case titled Fayyaz-ul-Hassan Sheikh v. Robins Nighat Ahmad from the Court of Mr. Muhammad Jahandar Khan, Civil Judge, First Class/Judge Family Court, Rawalpindi to the Court of Senior Civil Judge/Judge Family Court, Sargodha.

2. The facts necessary for the purposes of this petition briefly stated are that Rameez-ul-Hassan, minor, was born out of the wedlock of the petitioner and respondent on 16-12-1981. Divorce between the petitioner and the respondent became effective on 31-8-1984. The father of the petitioner is stated to be a permanent resident of Jauharabad, Khushab, whereas her brother is serving presently at Sargodha. It has further been asserted that on divorce the petitioner moved to Sargodha where she entered into an agreement on 11-10-1984 with the Fauji Foundation for distribution of Fon Gas in the area of Sargodha. On 29-5-1985 the minor was got admitted in St. Mary's High School, Sargodha. The petitioner was appointed Superintendent, Cottage Industries Training Centre, Sargodha on 2-11-1985.

3. The respondent filed the application under section 25 of the Guardians and Wards Act (sought to be transferred through this petition) on 22-10-1984 at Rawalpindi. The petitioner, on the other hand has filed the following suits on dates shown against each at Sargodha which are now pending before the Senior Civil Judge:

The learned counsel for the petitioner has raised the following contentions:--

(1) That the minor Rameez-ul-Hassan is residing at Sargodha with his mother where he has been admitted in St. Mary's High School and it would be highly inconvenient for him to go to the Court at Rawalpindi if his presence is required both from the point of view of his health as also his study.

(2) That it will also be inconvenient and hazardous for the petitioner who is a woman to go on each date of hearing from Sargodha to Rawalpindi to defend herself there;

(3) That the application sought to be transferred has been filed by the respondent at Rawalpindi only to cause harassment to the petitioner and that threats have already been conveyed to her by the respondent of bodily harm to her and forcibly taking away of the minor; and

(4) Lastly, that the suits by the petitioner against the respondent being all pending at Sargodha of which suits the respondent has not sought transfer, he will in any case have to come to Sargodha to defend himself in those suits and, therefore, no extra inconvenience will be caused to him if his application is also transferred to Sargodha.

On the other hand, the learned counsel for the respondent submitted: First, that the suit of the respondent is earlier in time:

4. Secondly, that the case of the applicant which is sought to be transferred is one of removal from custody and if the same is now transferred to Sargodha this will amount to giving premium to the illegal act of the petitioner; and Lastly, that the minor is not being allowed to meet the respondent.

5. In reply the learned counsel for the petitioner submitted that it is incorrect to say that the minor is not being allowed to meet the respondent as the Court seized of the matter has already directed that the respondent may meet the minor and the petitioner would be the last person to put any hindrance in this matter.

6. Having given consideration to the controversy I am of the view that the contentions raised on behalf of the petitioner have force. It may be observed that this being the admitted position that the respondent has not sought transfer of the suits filed against him by the petitioner no extra inconvenience will -be caused to him if his application is also transferred to Sargodha to the same Court with a direction that all the matters between the parties should be fixed on the same dates of hearing.

7. Apart from the above position the suit filed on behalf of the minor by the petitioner for maintenance and the application sought to be transferred may have common questions of law and fact and, therefore, it would be in the interest of justice and to avoid conflict of judgments that the two are heard by the same Court.

8. Yet another aspect of the matter which has prevailed with me to allow this application is the- well-settled principle that in matters of family disputes the convenience of the lady litigant has to be given due consideration and unless there is an insurmountable hurdle in the way the litigation between the parties should better be tried by the Courts where the lady is residing.

9. Before parting with the case I would like to deal with the contentions raised on behalf of the respondent. The filing of the application by the respondent earlier in time as has been held in a number of cases cannot be an impediment for transfer of his application.

10. As regards the second contention of the learned counsel for the respondent I suffice by observing that I would not like to dilate on this aspect of the matter as this point may appropriately fall for adjudication in the main cause and, therefore, any comments thereon by me at this stage may cause prejudice to the case of either of the parties.

11. The third contention of the learned counsel for the respondent has already been met with by the learned counsel for the petitioner in reply and otherwise also this will be a matter which can again be a controversy before the, trial Court and, therefore, it should be that Court only that may take cognizance of the grievances of the respondent if he has any.

12. In view of the foregoing discussion, I would allow this application and direct that the application of the petitioner under section 25 of the Guardians and Wards Act pending in the Court of Mr. Muhammad Jahandar Khan, Civil Judge, First Class/Judge Family Court, Rawalpindi, be withdrawn from his Court and entrusted to the Judge Family Court/Senior Civil Judge, Sargodha, for adjudication in accordance with law.

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

13. The parties are directed to appear before the transferee Court on 6-12-1986. The Court from which the application has been withdrawn shall remit the record to the transferee Court before the above date o1 heaving.

14. The transferee Court shall ensure that all cases between the parties are fixed on the same dates of hearing so that no extra inconvenience is caused to the respondent.

H. B. T. /R-10/L Transfer application allowed.

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