HAMIDA BEGUM Versus UBEDULLAH

1. This is a Constitutional Petition under Article 199 of the Constitution of Pakistan, 1973. The facts giving rise to the above petition briefly stated are that petitioner No.l Mst. Hamida Begum was married to respondent No.l. Out of the said wedlock they have one son, namely, Shah Nawaz. Their marital life, however, did not continue smoothly; with the result that petitioner No.1 filed Family Suit No.10 of 1980 in the Court of learned Senior Civil Judge, Jacobabad which was compromised on 17‑3‑1982 and the marriage was dissolved by divorce given by respondent No.l to the said petitioner. It was inter alia agreed in the said compromise that the minor son Shah Nawaz will remain in the custody of petitioner No.l and that respondent No.l will not claim his custody from her till he attains the age of 5 years. The respondent No.1 on his son's attaining the age of 5 years, filed an application being No.11 of 1984 for the custody of minor Shah Nawaz in the Court of Civil Judge and Family Court, Thul. The said application seems to have been tried by the Court of Family Judge, Jacobabad (perhaps, on the order of transfer passed by the District Judge as the record of ‑the Courts below is not before me). The said application was allowed by the learned Family Court by his judgment dated 20‑2‑1986. Being aggrieved of the said judgment the petitioner filed an appeal being No.3 of 1986 under section 14 of West Pakistan Family Courts Act, 1964 in the Court of First Additional District Judge which was dismissed by the learned Judge by his judgment dated 30‑6‑1986. Thereupon the petitioners have filed the above Constitutional Petition.

2. Mr. Nawab Syedul Mukhtiar Siddiqui, learned counsel for the petitioners has raised the following contentions:‑

(1) That the learned Family Court, Jacobabad who was a Civil Judge had no jurisdiction to entertain the application for appointment of guardian.

(2) The learned District Judge, Jacobabad had also no jurisdiction ? to hear the appeal.

(3) The two issues framed in the guardianship application are ? defective.

3. In support of his contentions Nos.(1) and (2) learned counsel referred to sections 4(5) and 47 of the Guardians and Wards Act and submitted that the "Court" under the Guardians and Wards Act means a District Court and not a Court of Civil Judge and that the appeal lies to the High Court and not to the District Court. It seems advantageous to reproduce the aforesaid provisions of law, as referred to by the learned counsel:‑

4. "4. (5) ? "the Court" means‑

(a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or

(b) where a guardian has been appointed or declared in pursuance ? of any such application:‑

(i) the Court which, or the Court of the Officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian; or

(ii) 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; or

(c) in respect of any proceeding transferred under section 4A, the Court of the officer to whom such proceeding has been transferred."

5. "47. ????? An appeal shall lie to the High Court from an order made by

6. ??????????? a Court:‑

(a) under section 7, appointing or declaring or refusing to appoint or declare a guardian; or

(b) under section 9, subsection (3), returning an application; or,

(c) under section 25, making or refusing to make an order for ? the return of a ward to the custody of his guardian; or

(d) under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court or imposing conditions wih respect thereto; or,

7. (e)under section 28 or section 29, refusing permission to a guardian ? to do an act referred to in the section; or,

(f) under section 32, defining, restricting or extending the powers of a guardian; or

(g) under section 39, removing a guardian; or

(h) under section 40, refusing to discharge a guardian; or

(i) under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardian, or enforcing the order; or, (j) ???????? under section 44 or section 45, imposing a penalty: Provided that, where the order from which an appeal is preferred is passed by an officer subordinate to a District Court, the appeal shall lie to the District Court." On the other hand, Mr. Ruknuddin Kasmi, learned counsel for respondent No.l submitted that perhaps the learned counsel for the petitioners seems to be ignorant of the amendments made in the law relating to the jurisdiction of the Courts in family matters. He produced a copy of notification dated 17th April, 1969 published in the Gazette of West Pakistan, Lahore which is reproduced below: GOVERNMENT OF WEST PAKISTAN LAW DEPARTMENT NOTIFICATION

8. The 17th April, 1969. "No. Integ. 10‑31/64‑‑In exercise of the powers conferred by section 26 of the West Pakistan Family Courts Act, 1964 (West Pakistan Act XXXV of 1964), the Government of West Pakistan is pleased to direct that in the West Pakistan Family Courts Rules, 1965, the following further amendment namely:‑

AMENDMENT

9. For rule 7, the following shall be substituted, namely:‑

10. "7.(1) Suits triable under the Act shall be instituted in, and be heard and tried by the Court of the Civil Judge having jurisdiction as provided in rule 6, and where in any District there is no such Court, such suits shall be instituted in, and be heard and tried by the Court of District Judge or the Additional District Judge.

(2) Notwithstanding anything contained in sub‑rule (1), the Court ? of the District Judge may send for the record and proceedings of any suit pending for trial in any Court in the District and hear and try the suit itself or refer it for trial to any other Court within the District and, thereupon the Court of the District Judge or the Court to which such suit is so transferred, as the case may be, shall have jurisdiction to hear and try the suit." It was next submitteO by him that section 47 of the Guardians and Wards Act has also undergone a change by Amending Ordinance No.XXVII of 1981 adding the following proviso in the said section which is reproduced as under:‑

11. "Provided that, where the order from which an appeal is preferred is passed by an officer subordinate to a District Court, the appeal shall lie to the District Court." Mr. Kasmi further submitted that the learned counsel for the petitioners has raised the shove plea of jurisdiction for the first time during course of the arguments. He has neither taken the plea before the Family Judge, nor the appellate Court or even in the Constitutional Petition. The submission of the learned counsel for the respondent No.1 seems to be correct. I have gone through the memo of appeal and there seems to be no such ground taken either in the memo of appeal or urged before the learned appellate Court. I have also gone' through the grounds stated in the petition and there is also no such; ground. Learned counsel for the respondent No.l further submitted ? that the petitioners having not taken the ground of jurisdiction earlier as aforesaid, are not allowed to take this plea at this stage. Reliance has been placed by the learned counsel on Majid Ali v. Additional District Judge and Ex‑Officio Settlement and Rehabil i tation Commissioner 1970 S C M R 375, Ghulam Muhammad v. Noor Bibi 1 980S C M R 933 and Nasir Ahmed Shaikh v. Nahi d A. Shaikh 1986 Sue' M R 1621. 1 agree with the learned counselor respondent No.l that the contentions of the learned counsel for the petitioners are contrary to the amended provisions of law of which he seems to be unaware. In any case the plea of jurisdiction cannot be allowed to be raised: for the first time before this Court and that too during the course. of the arguments As regards `the third contention, learned counsel has also not taken this plea before the appellate Court in the petition. However, I have gone through the judgments of both the Courts below and both have expressed their view that the welfare of the minor lies with respondent No‑1, the father. Learned counsel for the petitioners lastly submitted that the application was not maintainable, as according to Muslim law a son has to remain with the mother till the age of 7 years whereas application was filed when the minor was only 5 years old. The contention. is., misconceived. The rule of Muslim law is not absolute. It is always' subject to the consideration of the welfare of the miner. However, petitioner No.l herself agreed to keep the custody of the minor son till his attaining the age of 5 years in the compromise application. In any case during pendency of these proceedings the minor is now admittedly of about 9 years: it is also admitted by the counsel for the petitioner that ex‑wife of" the respondent has contracted another marriage. His last contention as also stated in the petition that the custody of the minor be given to her mother, the maternal‑grandmother of the minor, further strengthens the conclusion of the two Courts below that the welfare of the minor lies with the respondent as compared to the petitioner mother in Islamic lain too. the father is entitled to the custodian ? of his minor son on his attaining the age of seven years and that the welfare of the minor lies with the father unless contrary is proved, which the petitioner had failed. Reliance may be placed on Sultana Begum v. Mir Afzal and others P L D 1987 Kar. 252.

12. For the aforesaid reasons the petition has no merit and is dismissed.

13. A . A . / H‑‑110/ K . ??????????????????????????????????????????????????? ??????????? Petition dismissed.