IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Constitution Petition No.S- 240 of 2017
Petitioner Mazhar Ali through Mr. Ali Azhar Tunio, Advocate.
Respondents Asad Ali & others trhough Mr. Abdul Ghani Bijarani,
Mr. Liaquat Ali Shar, A.A.G. Sindh
Date of hearing 12.01.2023.
Date of order 12.01.2023.
O R D E R
Adnan Iqbal Chaudhry J. - After demise of the minors’ parents, the Petitioner, as maternal grandfather of the. minors moved an application under section 7 of the Guardians and Wards Act, 1890 for appointment as guardian both of the person and properties of the minors. The properties of the minors were/are situated in different cities of Sindh. The application was moved before the Family Court at Shahdadkot on the ground that the minors ordinarily resided with the Petitioner at Shahdadkot. The Family Court dismissed the application on the ground that since none of the properties were situated at Shahdadkot, it did not have territorial jurisdiction under section 9 of the Guardians and Wards Act to allow guardianship for the property of the minors. The order was maintained on appeal; hence this petition.
2. Heard the learned counsel and perused the record.
3. In passing the impugned orders both the Courts below, so also learned counsel while advancing submissions before this Court with regards to the territorial jurisdiction of the Family Court in matters of guardianship, have impressed upon section 9 of the Guardians and Wards Act, 1890 without noticing the provisions of the West Pakistan Family Courts Act, 1964 and the West Pakistan Family Court Rules, 1965.The latter statute is special law which deals with the territorial jurisdiction of the Family Court.
4. Though section 25 of the Family Courts Act deems the Family Court to be a District Court for the purposes of the Guardians and Wards Act along with the procedure therein, Rule 6 of the Family Court Rules, 1965 stipulates:
“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
Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction”
As per Rule 2(e), a ‘suit’ includes an application for guardianship under the Guardians and Wards Act.
5. It has been held by the Honourable Supreme Court in Muhammad Khalid Karim v. Saadia Yaqub (PLD 2012 SC 66) that with regards to guardianship matters, the territorial jurisdiction of the Family Court is governed by Rule 6 of the Family Courts Rules, 1965 and not by the provisions of the Guardians and Wards Act, 1890. The relevant extract of that pronouncement is as follows:
“11. Be that as it may, from the ratio of all the law cited above, the legal position, which emerge is as under:--
(a) Under section 5 of the Act 1964, the Family Court has the exclusive jurisdiction to entertain, hear and adjudicate (emphasis supplied) all the matters which fall within the first schedule to the Act; this admittedly includes the custody and guardianship matter.
(b) For the purposes of determining the 'territorial jurisdiction’ of the Family Court, it is Act 1964, and the rules framed thereunder which shall be taken into account and not the provision of the Guardian and Wards Act 1980, even as per force of section 25 of the Act 1964.
(c) According to Rule 6 (a) of the Family Court Rules 1965, there are three factual eventualities which are relevant for the purposes of the determination of the 'territorial jurisdiction' of the Family Court; firstly, where the cause of action wholly or in part has arisen, meaning thereby, in the custody or guardianship disputes if the minors were with the mother and they have been illegally and improperly removed and taken away that from the place where they were living with her (or vice versa for father as well), the cause of action shall be said to have arisen at such place, otherwise the cause of action shall be deemed to have arisen where the minors are residing; secondly, under Rule 6(b) where the parties reside or last resided; thirdly as per proviso to Rule 6,in a suit for dissolution of marriage or dower where the wife ordinarily resided. And in view of the addition of proviso to section 7(2) of the Act 1964, which was introduced on 1-10-2002 if in a suit for the dissolution of marriage join other causes of action mentioned in the said proviso, such suit shall also fall in the last category, otherwise not.”
Therefore, reliance placed by the Family Court and the appellate court on section 9 of the Guardians and Wards Act to determine territorial jurisdiction over the Petitioner’s guardianship application, was erroneous.
6. It will be seen that para 11(c) of Muhammad Khalid Karim supra is also authority for the proposition that unless the minor has been unlawfully removed from custody, the residence of the minor can be taken as the place where the cause of action arises as per Rule 6(a) of the Family Court Rules for making a guardianship application. Unlike section 9 of the Guardians and Wards Act, Rule 6 of the Family Court Rules makes no distinction between an application for guardianship of the person of the minor and the property of the minor.
7. In the facts of the present case it is not disputed that after the mother of the minors passed away, the father already being deceased, the minors had been residing at Shahdadkot for quite some time with their maternal grandfather, the Petitioner. Consequently, the Family Judge at Shahdadkot had territorial jurisdiction to entertain the Petitioner’s guardianship application both for the person and properties of the minors. The fact that none of the properties were situated at Shahdadkot had no bearing on the matter.
8. For the foregoing reasons, the impugned orders dated 19.10.2016 and 08.02.2017 passed respectively by the Family Judge-II, Shahdadkot in Guardianship Application No. Nil of 2016, and by the District Judge, Kamber-Shahdadkot in Family Appeal No. 01 of 2016, are set-aside. The Family Judge shall determine the Petitioner’s guardianship application on the merits.