Mst. KHAIRUN NISA vs Sayed ABDUR RAHIM

This is an application on behalf of one Mst. Khairunnissa, who is the wife of the respondent Syed Abdur Rahim, seeking the transfer of a case pending before the VIII Civil Judge, Karachi acting as a Family Court and numbered 1434/71 to Shihdadpur. The facts which have given rise to the petition, according to the petitioner, are that having been married to the respondent at Karachi she lived with him for sometime, but during the period of their joint residence she was constantly maltreated and even physically beaten by the respondent. In the course of their married life at Karachi she gave birth to two sons one of whom is named Mohammad Arif while the other Mohammad Javed is now dead. She alleges that on such occasion when he gave her a beating he thereafter turned her out of his house although the baby Mohammad Javed was still suckling and refused to part with the child, The petitioner then lived with her maternal grandmother in Karachi and subsequently went to live with her mother at Shahdadpur where she is still living. The mother herself is living with her husband who is not the father of the petitioner. Apparently the earlier marriage between the petitioner's mother and father broke up for reasons which are entirely irrelevant to the present case.

2. On the 29th of July 1971 the petitioner filed a suit at Shahdadpur claiming the custody of the other minor child till T living, namely, Mohammad Arif. A little later, that i9 to say, in October 1971 the respondent filed a suit for conjugal rights at Karachi which is the suit now sought to be transferred.

3. It transpired during the proceedings that there was no case pending at Shahdadpur and, therefore, counsel made Inquiries as a result of which it is now the admitted position that although such a case was filed it was presented to the wrong Court and having been returned has now been properly presented to the Court of the District Judge acting as a Family Court at Sanghar.

4. Counsel for the respondent takes up plea, Initially, that this Court has no jurisdiction to transfer a case of this character under section 24 of the Civil Procedure Code. He concedes as is obvious, that the Family Court is a Court subordinate to this Court but his objection is based on the express language of section 17 of the West Pakistan Family Courts Act which reads thus;----- "Provisions of Evidence Act and Code of Civil Procedure not to apply. -(1) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 18 /2, and the Code of Civil Procedure. 1908 shall not apply to proceed--ings before any Family Court. Sections 8 to 11 of the Oaths Act, 1873 shall apply to all proceedings before the Family Court."

5. Counsel for the petitioner finds it difficult to deny that section 17 excludes the application of section 24 to matters of this kind but claims that this Court has power under Article 205 of the Interim Constitution which gave this Court a supervisory jurisdiction. It is no doubt true that the petition itself describes the prayer as being made under section 24 of the Civil Procedure Code and alternatively under Article 102 of the Constitution of Pakistan (1962). The language, however, of Article 102 of the former Constitution and Article 205 of the present Interim Constitution is in identical terms and I have no doubt that if indeed there is power under this Article the mere fact that the petition was presented before the passage of the Interim Constitution will make no difference.

6. I entertain the gravest doubt on the question whether the power of supervision includes the power of transfer and I am referred by learned counsel to two cases of the Lahore Bench of the West Pakistan High Court reported as Mst. Gaman v. Taj Din (PLD 1968 Lah. 987) and Mst. Safia Begum v. Abdul Hamid (PLD 1968 Lah. 1358) respectively. Both these cases are Single Judge cases.

The former case leas dealt with the question at some length and the learned Judge came to the conclusion that there is power to order transfer. In the second case, however, the discussion is somewhat briefer and the main portion of the judgment deals with the question whether Judicial interference is permissible. Having come to the conclusion that it was not and that only administrative control was con--templated the learned Judge appeared to have assumed that this would include a power of transfer. With the utmost respect I am at least doubtful that that is a correct position. If this had g been the only question in the present case and if I was otherwise on merits inclined to grant this application I would have preferred to refer the question of jurisdiction to a Division Bench but in view of the conclusion which I have reached on the merits I do not think that that is necessary.

7. Admittedly the marriage took place at Karachi and the parties resided together at Karachi only.

The minor whose custody is claimed also is just now, lawfully or otherwise, at Karachi. Prima facie, therefore, it would seem to be that the Karachi Court has jurisdiction, and it is always for the plaintiff to choose his forum provided that the forum is one of jurisdiction. Reliance, however, is placed by learned counsel for the petitioner upon rule 6 of the Rules made under the West Pakistan Family Courts in Act which reads as follows :-----

9. "Rule 6.-The Court which shall have jurisdiction to try a suit will be that within the local limits of which-

(a) the cause of action wholly or In part has arisen, or

(b) where the parties reside or last resided together.

Clauses (a) and (b) are obviously against the petitioner. The cause of action h arisen in Karachi and the parties have resided at Karachi. It is only the proviso upon which the petitioner could place reliance and it is his contention that wherever the wife happens to reside for the time being the Court exercising jurisdiction in that area would be a competent Court. I regret I am unable to accept this contention. For one thing the argu--ment entirely overlooks the word "ordinarily". It is true that the lady has now shifted to Shahdadpur and in one sense she can be described as being ordinarily resident there. But I do not think it was the purpose of the Legislature to make the jurisdiction of the Court dependent upon the movements of the petitioner wherever she wished to shift. The argument, however, is sought to be put in a different and, I must confess, attractively ingenious fashion. It is said that to law the mother has a right of custody and that, therefore, wherever she happens to be she has a right to the custody of the" minor and in that sense the cause of action arises wherever she is. I am afraid this, however, ingeniously put, is too far-fetched.

Upon this basis it will be the residence of the person to whom tire cause of action has arisen which will govern territorial jurisdiction and I do not think that can be the intention of any provision of law conferring jurisdiction.

8. Finally it is argued that as a matter of discretion this case should be transferred inasmuch as it is extremely inconvenient for the wife to come to Karachi. Plainly the reverse of the argu--ment would also apply in favour of the husband but to this the answer that is given is that the husband will in any case have to go to Shahdadpur or at Sanghar wherever the other case is now pending. These are not cases in which there is any guarantee that the dates will be necessarily coincident and I do not think, therefore, that there is sufficient answer. It is true that the wife will suffer some degree of inconvenience but then so will the husband if this petition is allowed. The proper course, therefore, since there are no compelling reasons governing convenience, would be to allow things to remain as they are, namely, to leave each party to litigate his or her case in the forum which he/she has in accordance with law selected. I, therefore, reject this petition. In the circumstances of the case, however namely that this is a dispute between husband and wife and concerns the cus--tody of a child T make no orders as to costs.