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Petitioner: GHULAM MUSTAFA VS Respondent: Mst. NAHEEDHonorable Justice Mushir AlamNaleymitho alias Muhammad Ishaque,Abid Akram
2011 Y L R 2420
[Karachi]
Before Mushir Alam, C.J.
GHULAM MUSTAFA---Applicant
Versus
Mst. NAHEED and another---Respondents
Family Transfer Application No.23 and C.M.A. No. 1899 of 2011, decided on 25th April, 2011.
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 25-A---Transfer of case---Application for---Transfer of case was claimed on the grounds; firstly, that applicant was residing at place secondly, the address of respondent had wrongly been mentioned by the respondent before the court below; and thirdly, respondent had contracted marriage without dissolution---All said grounds as urged by the applicant, did not call for transfer of the case---Family Courts had jurisdiction when the girl had shown her residence and territorial jurisdiction was not governed by her residence---Nothing was on record that plaintiff/respondent had changed or adopted the residence to defeat the territorial jurisdiction of any court---No cogent reason for transfer of case was made out, in circumstances---High Court observed that applicant should approach the Trial Court, if at all he was able to convince the court as to its territorial jurisdiction, the court could pass such order as could be necessary.
Rana Sheraz Khalid v. Ambreen Sheraz 2005 UC 242 ref.
Naleymitho alias Muhammad Ishaque for Applicant.
Abid Akram for Respondent No.1.
M. Shafi Memon, Addl. Advocate General Sindh.
ORDER
MUSHIR ALAM, C.J.---Mr. Abid Akram, Advocate-has filed power on behalf of the respondent No.1, which is taken on record.
The transfer is claimed on the grounds that firstly, the applicant is residing at Karachi; secondly, the address of respondent has wrongly been mentioned by the respondent No.1 before the learned court below and thirdly, the respondent No.1 has contracted marriage without dissolution.
It may be observed that all such grounds as urged do not call for transfer of the case. It is settled that the Family Courts have jurisdiction where the girl shows her residence and territorial jurisdiction is not governed by the residence of the respondent may be at Sanghar or at Karachi and secondly even if it is shown that she is not residing at the address shown in the plaint, the learned Court below can examine such grounds and it will not call for any interference by this Court.
Learned counsel for the applicant in aid of his above contention has relied upon the case-law reported as Rana Sheraz Khalid v. Ambreen Sheraz, 2005 UC 242. It may be observed that in the cited case there was material before the Court and pleadings also showed that the residence has been changed in order to bring the case before the jurisdiction of the particular court whereas in the instant case there is nothing on record to show that the plaintiff has changed or adopted the residence to defeat the territorial jurisdiction of any court, therefore, the case-law cited by the learned counsel for the applicant is not attracted to the circumstances of this case and in addition to above no cogent reason for transfer of the case is made out. However, the applicant should approach the trial Court, if at all, he is able to convince the Court as to its territorial jurisdiction, the Court may pass such order as may be necessary.
Learned counsel for the applicant has also moved an application under section 151, C.P.C. today in Court to bring certain documents and material on record, inter alia, Affidavit of Free Will executed by the respondent No.1 to contract marriage on her own choice. It may be observed that all such matters are not germane to seek transfer of the case. However, the applicant may take such proceedings as may be permissible under the law.
This Family Transfer Application in above terms stands disposed of along with the listed application.
H.B.T./G-28/K Order accordingly.