P L D 1970 Lahore 596
Before Karam Elahee Chauhan, J
MUHAMMAD SIDDIQUE SIDDIQI---Applicant
Versus
Mst. AZIZ BIBI AND 3 OTHERS‑--Respondents
First Appeal from Order No. 23 of 1967, decided on 7th May 1969.
(a) Guardians and Wards Act (VIII of 1890),
S. 9 (1)---Jurisdiction of Courts‑--Expression "ordinarily resides"‑--Meaning explained.
In section 9(1), of Guardians and Wards Act, 1890 the emphasis is undoubtedly on the minor's "ordinary" place of residence. Such a place is to be determined by finding out as to where the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to a different place. Where the application is filed soon after such removal, the place of such removal will be ignored for the purpose of determining the jurisdiction of the Court to entertain the application and in spite of such removal the minor will be deemed to have its residence at the place where it was ordinarily residing. The new place to which the minor may have gone or may have been removed, can become the ordinary residence of the minor only after the minor has settled down at that place for a reasonably long period and the residence passed the stage of casual or temporary residence.
The children were residing with the father at Rawalpindi and were being maintained by him. The father while proceeding abroad on a short visit arranged for the education of the children in schools at Rawalpindi and entrusted the task of looking after them to his brother. The children were staying in schools and expenditure therefore was regularly being met by the father even when he was abroad. In his absence the children were removed and got admitted in schools at Lahore by the maternal grandmother against the wishes of the father who took exception to this action. The maternal grand‑mother then filed an application under section 10, Guardians and Wards Act, 1890 in the District Court at Lahore for being appointed, as guardian of the persons of minors. The father on his return to Pakistan took objection to the jurisdiction of Lahore Court and also filed an application under section 2.5 in Rawalpindi pleading that the minors had, in his absence, been removed from his custody in a clandestine manner from Rawalpindi. He made efforts to get the proceedings stayed at Lahore but the Lahore Court, allowed the application of the maternal grandmother and held that the minors had come to Lahore in a normal way and were studying at Lahore. The finding of the District Court, Lahore was set aside by the High Court which held: "this being a case of removal against the wishes of the father in a stealthily manner, Lahore did not become an ordinary place of residence of the minors at the time when the application was filed here".
As regards jurisdiction of the Court it was contended that the minor's actual place of residence where he, in fact, is at the time of presenting the application must necessarily and in all circumstances determine jurisdiction under section 9 (1). The contention was rejected and the High Court held: "The contention has no force for various reasons. Firstly, in section 9 (1), the phrase used is not where the minor "resides", but where he "ordinarily resides". If the contention is accepted it will tantamount to drop the word "ordinarily", or to make it redundant which, it is obvious cannot be done. Secondly, the word "ordinarily" has been intentionally used to bring in a consideration other than that of mere factual residence. Thirdly, the word "ordinarily", means more than mere temporary residences and if this word is omitted, then mere temporary residences will also become residences within the meaning of the clause under construction which, it is obvious, cannot be the intention of the Legislature on the subject. Fourthly, if the construction as put forward is accepted then it will seriously affect those situations where a minor is removed from place to place in order to defeat the process of law and the jurisdiction of Courts. The interpretation put by the learned counsel will then not be workable and in cases of removal will lead to defeat the ends of justice".
It is not the factual location; existence or placement of a minor, as a matter of fact, in any particular place which is to be taken note of, but the place where the minor ordinarily resides.
Sarat Chandra Chakarbarti v. Forman I L R 12 All. 213; Mst. Nazir Begum v. Ghulam Qadir Khan A I R 1938 Lab. 313; All Akbar v. Mst. Kaniz Maryam P L D 1956 Lab. 484; Mahmooda Khatoon v. Syed Zainul Hasnain Rizvi P L D 1958 Kar. 150; Mst. Zubaida Begum v. Chaudhari Ghulam Rasul P L D 1959 Lah. 967; Syed Widhal Shah and another v. Syed Ghulam Nabi Shah and others P L D 1965 Kar. 84; Bhola Nath v. Sharda Devi A I R 1951 Pat. 489; Mt. Lalita Twaif v. Paramatma Prasad A I R 1940 All. 329; Jhala Harpalsingh Natwar Sinhji v. Bai Arunkunwar A I R 1954 S A U 13; Chandra Kishore and another v. Sint. Hemlate Gupta A I R 1955 All. 611; Mubarik Shah Khan v. Mst. Wajeh‑ul‑Nissa and others 53 P L R (1902) 194‑95; Sm. Vimalabai v. Baburao Shamrao Kahirsagar A I R 1951 Nag. 179; In re: Erskine (1893‑94) 10 T L R 32; Sarada Nayar v. Vayankara Amma and others A I R 1957 Kerala 158 and Ram Sarup v. Chilman Lal and others A I R 1952 All. 79 rel.
Annie Besant v. Narayaniah I L R 38 Mad. 807 distinguished.
(b) Guardians and Wards Act (VIII of 1890),
S. 25.---‑Forum-----Ordinary place of residence of minor‑--Ordinary place of residence of parents--‑An important factor to determine ordinary place of residence of minor‑--Legal presumption.
In cases of removal ordinary place of residence of parents is a very pertinent aspect which has to be kept in view for the purpose of determining as to which in the given circumstances of a case was the ordinary place of residence of the minor. While examining that question it is a natural and lawful presumption which can be kept in view and that such a presumption can be raised.
Mst. Zubaida Begum v. Chaudhry Ghulam Rasool P L D 1959 Lah. 967; Mahmooda Khatoon v. Syed Zainul Hasnain Rizvi P L D 1.958 Kar. 150; Kuppachi Raghavaiya v. Machavalu Lakshmiah A I R 1925 Mad. 398; Kakara Tatamma v. Marina Veerraju A I R 1930 Mad. 19; Mst. Nazir Begum v. Ghulam Qadir Khan A I R 1937 Lah. 797; Sarat Chandra Chakrabati v. Forman I L R 12 All. 213 and Mst. Nazir Begum v. Ghulam Qadir Khan A I R 1938 Lah. 313 rel.
Testimony of related witness---‑Rejection not always justified.
In cases involving family disputes it will only be the relations of the parties who will be in a better or natural position to know household details and to reject their testimony on ground of relationship would not be an act of prudence.
Malik Muhammad Jaffer for Appellant.
S. M. Zafar, Ataullah Qureshi and S. Abid Hussain for Respondent No. 1.
Respondent No. 2 in person.
Sh. Abdur Rasheed for Respondents Nos. 3 and 4.
Dates of hearing: 25th and 28th April 1969.
JUDGMENT
KARAM ELAHEE CHAUHAN, J‑‑--Muhammad Siddique Siddiqi (hereinafter called the appellant was married to Mst. Zeenat Begum, daughter of the late Khan Bahadur Abdul Aziz, a retired District and Sessions Judge (later on Chief Justice of Jind State) (and Chief Justice of Bahawalpur High Court) on the 26th of December 1946 in Jullundur (India). The appellant is an M.A., LL.B., and I am told at the Bar that the bride was also an educated lady having passed Matric or F. A. This wedlock gave birth to four children, namely (i) one son Shafiq Ahmad Siddiqi, (date of birth 22‑6‑1949) and (ii) three daughters, by the names Mst. Saira Siddiqi, (date of birth 10‑11‑1952), Mst. Nighat Siddiqi (date of birth 21‑2‑1952) and Mst. Afia Siddiqi (date of birth 27‑1‑1954). The dates of birth given hereinbefore (find support vis‑a‑vis the son from Exh. P. 1 which is a School certificate and) are now not disputed before me.
2. The matter for the purposes of the order which I am proposing to pass in this case, can be taken up from 1958. In that year, it is a common ground between the parties that the appellant along with his wife and children was living in Karachi where he was posted in connection with his service as a Deputy Military Accountant‑General in M. P. M. A. and the children were being educated by the father in Saint Patric School, Karachi. From the evidence of Mr. Ata‑ul‑Haq (P. W. 9), (the brother of the wife), it appears that the family then shifted to Rawalpindi, some members coming earlier and some later. The appellant, on transfer, joined his family in Rawalpindi in January 1961. After coming to Rawalpindi, it is admitted by P. W. 9 at p. 632 lines 15‑20 of his deposition that the appellant put the children in various schools, the details of which will be given later. There is some evidence to show that the relations between the appellant and his wife were not cordial and some incident or incidents in that behalf have been referred to, but it is not necessary to go into the details thereof at the moment because we have from P. W. 9 himself at page 625 of his statement that in 1961, he got the matter patched up and the wife again started living with the husband. There is alleged some incident of quarrel on 9‑1‑1963, when it is contended, the appellant turned out the wife and the children from his house, but about that again, it is in evidence that the things reconciled and the appellant allegedly wrote a writing of repentance (Exh. P. W. 10/1) on the 10th of January 1963. There is a controversy as to in which context that writing was written, but I need not decide the same and it will be sufficient for my purpose to note only this much that the reconciliation did take place. This is evident from the fact that on 22‑1‑1963, as per account opening form (Exh. R/5), the appellant opened a joint account in his and in his wife's name with a cash deposit of Rs. 500.00. In this account later on the pay of the appellant for the months of February and March 1963 was also deposited. The account could be operative by either or both of them. A copy of the statement of this account (Exh. R/4) shows that from this account the wife withdrew a sum of Rs. 706.00 (Rupees Seven hundred and six only) on the 7th of February 1963 and another sum of Rs. 100.00 (Rupees one hundred only) on the 12th of February 1963 by Cheques Exh. R/1 and Exh. R/3. Later on, the wife fell ill, and was, as per statement of Ata‑ul‑Haq (P. W. 9), at page 633‑634 got admitted into the Combined Military Hospital, Rawalpindi by the appellant who also paid all the hospital bills. The luck, however, did not help and the wife expired on the 9th of March 1963, whereafter the joint account aforesaid was also closed on 25‑3‑1963. The death of the wife left open a door of litigation between the appellant and his in‑laws and the first item immediately tackled was that of the jewellery of the deceased, about which some arrangement in writing on the 16th of March 1963, as per P. W. 10/3, was arrived at between the parties. It appears that at that time the appellant h ad to go on a service tour to U. S. A., for about six months, so after making certain arrangements about his children, which will be explained later, he left Pakistan on the 2nd of May 1963.
3. In the absence of the appellant, however, Mr. Ata‑ul‑Haq, (P. W. 9), brought the minors to Lahore and put them in the hostels attached to their respective schools where they were admitted. Thereafter, followed summer vacation in the educational institutions in Lahore. However, on the 12th of November 1963, Mst. Aziz Begum maternal grand‑mother of the minors filed an application under section 10 of the Guardians and Wards Act VIII of 1590 (hereinafter called the Act) in the District Court, Lahore (which later on came up before the Guardian Judge, Lahore) for being appointed as a guardian of the person of the minors. The appellant was still in U. S. A. He returned from that Country on the 27th of November 1963 and was at once faced with the litigation hereinbefore mentioned. He took objection to the jurisdiction of the Lahore Court to deal with this matter and also filed on 1‑12‑1963 an independent application under section 25 of the Act, in Rawalpindi pleading that the minors had in his absence been removed from his custody and guardianship in a clandestine manner from Rawalpindi to Lahore and should be returned to him. He made efforts to get proceedings in Lahore Court stayed but without any success. Instead the proceedings in Rawalpindi Court were stayed and the case in Lahore proceeded. The learned Guardian Judge, Lahore, by means of his judgment and order, dated the 15th of September 1966, held that the minors had come to Lahore in a normal way and were studying here and were not removed from Rawalpindi in any objectionable manner. He was also of the view that though the minors were admitted in schools in Lahore in May‑June 1963, the appellant did not object to the same up to the 12th of November 1963, when the application under section 10 of the Act had been filed by the maternal grand‑mother. Another finding recorded was that the children at the moment were not under the custody of a stranger but only a maternal grand‑mother whose right of custody of the girls was at least preferential and so far as the boy was concerned, he had made his own choice against the father. The children, according to the learned Guardian Judge, were the residents of Lahore. After giving these findings, he repelled the objection regarding jurisdiction and held that the Lahore Court had jurisdiction to try the present case. This was followed by another, order, dated 10‑11‑1965 whereby the learned Guardian Judge even on merits decided against the appellant and holding him to be immoral held that he was not a fit person to retain the guardianship and custody of the minors at all. Consequently, he accepted the application of Mst. Aziz Begum the maternal grand‑mother and appointed her as the guardian of the person of the minors. The appellant has com‑ up in appeal under section 47 of the Guardians and Wards Act against the aforesaid, wherein he has challenged the findings of the learned Guardian Judge both on the point of jurisdiction as well as on merits.
4. The first point argued by the learned counsel for the appellant was that according to subsection (1) of section 9 of the Act, an application with respect to the guardianship of the person of a minor can be made only to the District Court having jurisdiction in the place where the minor ordinarily resides. He submits that the expression, "where the minor ordinarily resides", in the aforesaid provision of law appears to have been deliberately used to exclude places to which the minor may be removed at or about the time of the filing of the application for the enforcement of the guardianship and custody of the minor and the phrase "ordinarily reside" indicates ordinary residence even at the time of the presentation of the application. The contention appears to be sound as the emphasis is undoubtedly on the minor's "ordinary" place of residence. Such a place is to be determined by finding out as to where the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to a different place. Where the application is filed soon after such removal, the place of such removal will be ignored for the purpose of determining the jurisdiction of the Court to entertain the application and in spite of such removal the minor will be deemed to have its residence at the place where it was ordinarily residing. The new place to which the minor may have gone or may have been removed, can become the ordinary residence of the minor only after the minor has settled down at that place for a reasonably long period and the residence passed the stage of casual or temporary residence. The questions of determining the Court's jurisdiction on the basis of the place, where the minor ordinarily resides, have come up for consideration in a series of cases, some of which will be mentioned in the later part of this judgment.
5. Having narrated the legal incidents of the phrase where the minor "ordinarily resides", let me now advert to the facts and the circumstances of the present case in order to find as to where such a residence of the minors was at the time the application was filed in Lahore. For the purpose of this question, it is a common ground that onward from January 1959, the minors were within the territorial jurisdiction of District Court Rawalpindi. The following table will show as to where the minors were studying up to May 1963:‑
1.
2.
3.
S. No.
Name
Where studying
(i) Up to December 1958
in Saint Patric School,
Karachi;
(ii) January 1959—May
1961 Sir Syed School,
Rawalpindi;
(iii) May 1961—January
1963, Lawrence College,
Ghora-Galli;
(iv) January 1963—May,
1963 Saint Marya
Academy, Rawalpindi;
(v) June 1963 got admitted
in Aitchison College,
Lahore after bringing
him from Rawalpindi.
(i) Up to December 1958 in
Saint Partic School
Karachi.
(ii) January 1959—May
1961 Sir Syed School,
Rawalpindi Cantt.
(iii) May 1961—May 1963
Station School Rawalpindi
Cantt.
(iv) In May, 1963, then
Brought to Lahore and
got admitted in Queen
Marry College, Lahore.
6. In May 1963, the appellant had to go to U. S. A. on a six months' training course. Before leaving, however, he made arrangements for the education and maintenance of the Children, which is apparent from the following documentary evidence in the case. He wrote letter Exh. R/6, dated 30‑4‑1963, to the United Bank, Rawalpindi, which has an important bearing in the case which reads as follows:‑
"To
M/s United Bank Ltd.,
Rawalpindi Cantt.
Subject:---- Arrangement connected with the schooling and maintenance of my children during my absence on duty in U. S. A.
You are hereby authorised to pay Rs. 45 to the principal St. Mary's School, Lalazar Colony, Rawalpindi on the first of each month beginning from the first May 1963, in respect of school fees of my son Shafiq Ahmad Siddiqi student of 9th Class.
(2) You are also authorised to pay Rs. 61/50 to the Principal of the Station School, Rawalpindi, as schools fees in respect of my 3 daughters Saira Siddiqui, Nighat Siddiqui and Afia Siddiqui of 3rd and 2nd Standards respectively. This should also be made on the first of each month beginning from first of May 1963.
(3) You are also authorised to transfer every month Rs. 100 to the Saving Banks A/C No. 619 of my son Shafiq Ahmad Siddiqui with your Bank to enable him to meet miscellaneous expenses including pocket money for the children. This will also be payable on the first of every month beginning from the first of May 1963.
(4) The above remittance as well as your charges may please be debited to my Current Bank A/C No. 615."
Yours sincerely,
(Sd.) M. S. Siddiqui."
A similar letter Exh. R/7, he wrote to Father Burns of St. Mary's School, Rawalpindi. This letter has also an important bearing and reads as follows
Father Burns,
St. Mary's School, Rawalpindi.
Subject:---‑Arrangement connected with the schooling and maintenance of my children during my absence on duty in U. S. A.
I have first of all the (sic) thank you for the special concession which you gave to my son Shafiq Ahmad Siddiqi, student (sic) 9th Class in connection with the trip to Hong Kong. This concession could, however, not be utilized due to the fact that it would not be desirable to leave my daughters since when I am away to America, I must, however, thank you once again for the kindness you showed in accepting my suggestion.
(2) I am taking the opportunity to confirm in writing what I discussed with you verbally in connection with the schooling and maintenance of my children during the period of my absence in U. S. A. I have opened a Saving Bank A/C of my son Shafiq Ahmad Siddiqi in the United Bank Ltd., Rawalpindi Cantt. I have also instructed the Bank to pay Rs. 45 on the first of each month-beginning-from 1st of May to your school in respect of his school fees, and Rs. 61/50 to the Principal of Station School in respect of 3 daugbters‑Saira Siddiqi, Nighat Siddiqi and Afia Siddiqi. The United Bank has also been instructed to transfer Rs. 100 per month to the Saving Bank A/C No. 619 of Shafiq Ahmad Siddiqi to meet miscellaneous expenses including Pocket Money. 1 have also arranged to have my brother here in Rawalpindi to look after the children as guardian in my absence. His name and address are:‑
Mr. Muhammad Saeed Sheikh,
116, Finance Road, Rawalpindi.
It is requested that periodical reports on the progress made by Shafiq in his studies may kindly be sent to him at the above stated address.
(1) For convenience I am also giving below my address in the United States:‑
Mr. M. S. Siddiqi,
Dy. M. A. G., (Pak.)
C/o Foreign Training Office,
Sheppard, A. F. 13., Texas, U. S. A.
Yours sincerely,
(Sd.) M. S. Siddiqi."
7. Prior to the issuance of the above letters, he had on the 10th of April 1963, vide Exh. R/8, opened bank account in the name of his son Shafiq Ahmad (P. W.
. A statement of that account has been filed as Exh. R/13, and it shows that it was opened in the name of the ward with a cash deposit of Rs. 500.00 on 11‑4‑1963. It further shows that onward from May to November 1963, there is a constant deposit of Rs. 100.00 p.m. into this account from the account of the father. These deposits are corroborated from corresponding withdrawal entries from the account of the father Exhs. R/10 to R/12, which show relevant remittances to various accounts. The said account when read with a summary of remittances (Exh. R/9) further shows that the Bankers of the appellant were remitting various amounts to the respective schools of the children as desired in Exhs. R/6 and R/7, reproduced above. It is in evidence of R. W. 4, ‑Muhammad Saeed, brother of the appellant that the appellant entrusted him to look after his children in his absence. That this was so done, is corroborated from documents like Exh. R/7, reproduced above as also from a letter Exh. R. W. 5/2, which the appellant wrote from U. S. A. on the 27th of May 1963, to the Principal, Station School Rawalpindi, in which the factum of entrustment of minors to Muhammad Saeed was again repeated. It is in evidence of P. W. 9 Mr. Ata‑ul‑Haq, at page 632 that, "the, children were studying at Pindi, when the respondent had left for the states. The boy was in St. Mary's Academy and the girls in the Station School at Pindi. They were admitted to these schools by the respondent." (The word respondent in the lower Court's record refers to the present appellant). The evidence reproduced above fully shows that the children were under the guardianship, control and supervision of the appellant who was thus maintaining his custody, even otherwise, according to Muhammadan Law, vested in him in his capacity of being father and maternal guardian of the children. He had put them in the schools of his choice. He opened account in the name of the son and had directed his bankers to keep on paying fees on the children and also an additional sum of Rs. 100.00 in the account of the boy for their general up‑keep. He had asked his brother to look after them and was even from U. S. A. himself keeping a close watch over his children and in no way lost control over them.
8. What happened after the appellant left for America is now not difficult to discern. In the absence of the father, applications were made to the respective educational institutions in Rawalpindi for granting leave to the children. In the case of the boy, the application was made by Mr. Ata‑ul‑Haq (P. W. 9) and in the case of girls by Begum Abdul Aziz These applications or their copies are contained on pages 491 and 493 of the trial Court record and were admitted by the counsel for the present respondent in the said Court. A perusal of these documents shows that leave was first taken for a few days and then was got extended. After removing the children from Rawalpindi on the pretext of leave they were then brought to Lahore, where the girls were got admitted in Queen Mary's College in May 1963, and the boy in Aitchison College in June 1963. All the children were put in hostels. It is on the basis of having removed them to Lahore in this way that it is being claimed that Lahore was the ordinary place of residence of the minors at the time when the maternal grand‑mother filed application under section 10 of the Act on l 2‑11‑1963, when the appellant was still away in the United States. Another thing to be noticed in this behalf is that when the appellant was about to leave for United States, it appears that an effort was made by Mr. Ata‑ul‑Haq (P. W. 9) to ask him to put the children in Aitchison College, but the appellant did not agree. On pages 628‑629 of Mr. Ata‑ul‑Haq's (P. W. 9) statement, this matter is described as under:‑
"Next day the respondent met me at my house. I suggested that the boy should be admitted to Aitchison College and the girls to the Sacred Heart School and failing that Queen Mary's College, Lahore, He did not object to the admission of the boy to the above college at Lahore. He did not agree to the admission of the girls to Queen Mary. He agreed to the admission to Sacred Heart School. He consented to the admission of the children in the schools at Lahore. I had successfully tried for the admission of the children to these schools. 1 had a meeting with the respondent in the middle of April 1963, and told him that I had arranged for the admission of the children to these schools at Lahore. He replied that he had changed his mind."
After stating the position of the appellant, the witness then goes on to say:‑
"I then brought the minors to Lahore and got them admitted at Lahore. This happened in May 1963. The boy was, however, admitted in June 1963."
9. This shows that the removal of the children to Lahore was against the wishes of the father. It was brought about in his absence. It did not have the approval of the uncle of the minors, who had been deputed by the father to look after them. The minors were kept away from the schools in Rawalpindi on a fake pretext of leave and under that garb they were brought to Lahore and left here in the hostels. It is in evidence on page 661 that the house of the appellant and that of his in‑laws were quite close to one another. This location provided an easy opportunity to the in‑laws to remove the minors from Rawalpindi and put them up in boarding houses in Lahore. Lahore, it may be pointed out was, not an ordinary place of residence even of the maternal grand‑mother who claims their guardianship. Shafiq Ahmad (P. W.
who made his statement in Court on 27‑2‑1965, stated at page 620 on the last but two lines that, "she is now even at Pindi." I am mentioning this fact for the purpose of showing that if the ordinary place of residence of father was Rawalpindi if the ordinary place of residence of maternal grandmother was Rawalpindi and if the ordinary place of residence of the minors themselves, if looked at from either point of view, (namely, from the point of view of father or from the point of view of maternal grand‑mother) was Rawalpindi, then how could that ordinary place of residence of the minors under go a change overnight due to such a move of the in‑laws of the appellant in his absence. I have made mention of the ordinary place of residence of the father etc., not for the purpose of holding that in section 9(i) of the Act, one can substitute the ordinary place of residence of the parents for the ordinary place of residence of the minor, because that cannot be done. My sole aim to make reference to this point was that in cases of removal, it is a very pertinent aspect which has to be kept in view for the purpose of determining as to which in the given circumstances of a case was the ordinary place of residence of the minor. While examining b that question it is a natural and lawful presumption which can be kept in view and that such a presumption can be raised was laid down in various authorities. In Mst. Zubaida Begum v. Chaudhari Ghulam Rasool (P L D 1959 Lah. 967), where the leading judgment was written by late Shabir Ahmad, J, it was held at page 971, that "It is however, clear that because a ward should ordinarily reside at the place where the guardian resides the initial presumption should be that the ward is ordinarily residing at the place where the guardian is, but the presumption is rebuttable and may in a suitable case be held to have been rebutted. I need hardly add that whether or not the initial presumption has been rebutted would depend on the facts and circumstances of each case and it is not possible, nor perhaps permissible to lay down under what circumstances the above‑mentioned initial presumption is to be taken to have been rebutted". A somewhat similar view was taken in Mahmooda Khatoon v. Syed Zainul Hasnain Rizvi (P L D 1958 Kar. 150), (Constantine and Qadeeruddin Ahmed, JJ.), where in spite of the removal of the minor from the custody of the father the place of residence of the minor was held to be the same as that of the father, wherefrom the removal had taken place. In Kuppachi Raghavaiva v. Machavolu Lakshmiah (A I R 1925 Mad. 398), it was held that where the child was in custody of its mother's relations, the father could apply for return of the custody to him if the aforesaid relations removed him from his custody. To the similar effect about the constructive custody of the father is (Kakara) Tatamma v. Marina Veerraju (A I R 1930 Mad. 19). There is no material on the record of the present case which might rebut the presumption hereinbefore mentioned and rather the overall circumstances of the case abundantly show that it is a clear case of removal. That it was a case of removal was probably not doubted even by the learned Guardian Judge but he went on to hold that it was normal removal. If this is a normal removal, I do not see which will be an abnormal removal.
10. Coming to the case‑law on the subject of removal in Mst. Nazir Begum v. Ghulam Qadir Khan (A I R 1937 Lah. 797), where the minor had gone to Bahawalpur, but his custody was then denied to the mother who was living in Multan, it was held that Multan was the ordinary place of residence of the minor and the relations of the minor in Bahawalpur amounted to removal of the minor from the custody of the guardian concerned and that Multan Court had jurisdiction to decide the case. In Saral Chandra Chakarbati v. Forman (I L R 12 All. 213), it was held that, "when a minor had been removed by the respondents from Allahabad to Lahore the jurisdiction of the Allahabad Court had not been ousted. Straight J., in the course of his judgment observed and very rightly too, if I may say so with all respect
"I do not think that the fact that at the time of the trial in the Judge's Court the minor was out of the jurisdiction is of any material importance if upon the facts stated in the petition it appeared that the defendants were responsible for his removal. As I pointed out at the hearing, to place so narrow a construction upon the statute would render it practically inoperative and enable persons bent upon defeating it by successive removals of the person of a minor from one place to another to deprive any Court of jurisdiction."
In Mst. Nazir Begum v. Ghulam Qadir Khan (A I R 1938 Lah. 313), which was also a case of removal of a minor from the custody and guardianship of the guardian, it was held:‑
"To place a restricted meaning in cases like the present on the words `for the time being ordinarily resides' so as to interpret them to mean where the minor actually is at the time of the application, would be tantamount to rendering nugatory all the provisions of the Guardians and Wards Act and to making the law helpless against the machination of recalcitrant persons who not propose to part with the minor in favour of the appointed guardian. This is especially so in the Punjab where the British Indian States are so closely situated that any person would be able to flout the authority of the highest Tribunal of the land by merely walking with the minor into a neighbouring State. Any interpretation that leads to these results should, therefore, be tried to be avoided."
In Ali Akbar v. Mst. Kaniz Maryan (P L D 1956 Lah. 484), it was held that the Court from whose jurisdiction the minor was removed has jurisdiction to entertain an application under section 23, Guardians and Wards Act (VIII of 1890). It was further held that the right of a Muhammadan mother to the custody of the minor is subject to the control of the father, and if she takes away the minor against the wishes of the father she acts without authority and her taking away the minor amounts to removal of the minor from the custody of the father. The custody of the mother it was held, is to be regarded as a kind of subordinate custody and the control of the father also is a custody within the meaning of the Guardians and Wards Act. In that case, the minor had been removed from Lahore to Karachi and in spite of that removal it was held that Lahore Court had the jurisdiction to try that case; because that was the ordinary place of residence of the minor. In Mahmooda Khatoon v. Syed Zainul Hasnain Rizvi (P L D 1958 Kar. 150), the same view was reiterated. In Mst. Zubaida Begum v. Chaudhry Ghulam Rasool (P L D 1959 Lah. 967), it was held at page 971, "As I have already said these cases in which a minor is removed with the ulterior object of taking away the jurisdiction of the Court, will stand on a different footing because if the removal is recent, the Court can hold that the ordinary residence of the minor is the place from which it had been removed for an ulterior object . . . . . . .". In Syed Widhal Shah and another v. Syed Ghulam Nabi Shah and others (P L D 1965 Kar. 84), the view regarding the removal of a minor was not taken exception to. In Bhola Nath v. Sharda Devi (A I R 1954 Pat. 489), it was held that the expression `the place where the minor ordinarily resides', means the place where the minor generally resides and would be expected to reside but for special circumstances. It was further held that where, therefore, the child lived mostly at Buxar within the jurisdiction of the District Court of ShahAbad and if the child had not been stealthily taken away by the father, he was expected to reside with the mother at Buxar, the District Court at. Shahabad bad complete jurisdiction to entertain an application by the child's mother for guardianship.
Respectfully following the principles laid down in these cases, against which there is no contrary opinion so far laid down in any case‑law. I am of the opinion that this being a case of removal against the wishes of the father in a stealthily manner, Lahore's did not become an ordinary place of residence of the minors at the time when the application was filed here.
11. While making the above discussion, I have, among other pieces of evidence, referred to R. W. 4, Sh. Muhammad Saeed, who has deposed that before going to the U. S. A., the appellant had made arrangements for the education and maintenance of the children etc. He also said that the appellant made him incharge of his children and that during the absence of the appellant in U. S. A., the witness shifted to 19 Finance Road, Rawalpindi, which was the place of residence of the appellant and his children. He also said that the minors were removed by Mr. and Mrs. Ata‑ul‑Haq to Lahore without obtaining any migration certificates from the Schools in Rawalpindi or without his own permission. He further said that he took exception to this act and conduct of the in‑laws of the appellant and also sent a notice to Mr. Ata‑ul‑Haq through an Advocate. The learned Guardian Judge ignored the testimony of the above witness on the ground that he was a brother of the appellant. I must say that this was no ground to reject his statement; because in cases involving family disputes it will only be the relations of the parties who will be in a better or natural position to know household details and to reject their testimony on ground of relationship would not be an act of prudence. However, it is to be remembered that from the side of the maternal grand‑mother again it were her relations like P. W. 9 and P. W. 10, who had made statements in her favour. If relationship was a ground to reject the evidence of R. W. 4, same yardstick should have been applied to the relations of the other side. The learned Guardian Judge, did not maintain equality, between the parties in this respect and his rejection of the testimony of R. W. 4, was not justified. Another ground given by the learned Guardian Judge with respect to R. W. 4, was that he was sometimes ago convicted yin a case under section 377, P. P. C. and also in a case under section 182, P. P. C. The stand of the witness about these matters was that the case under section 377, P. P. C., took place about thirty‑five years ago in which he was acquitted and so was he acquitted in section 182 Case. The said cases, therefore, again constituted no ground to reject the testimony of R. W. 4. At the most, they could put the Court on alert to sift the evidence with greater case and accept only such portions which were corroborated from other material on the record. If examined in this guideline, it will be seen that the plea that he was put incharge .of the children by the appellant stands corroborated from documentary evidence like Exh. R. 7, reproduced earlier as also from a letter (Exh. R. W. 5/2), dated the 27th of May 1963, which was sent by the appellant from United States to the Principal, Station School, Rawalpindi Cantt. This letter reads as follows:‑
The Principal,
Station School, R. Pindi Cantt.
Subject: Schooling and maintenance of Saira Siddiqi, Nighat Siddiqi and Afia Siddiqi.
Kindly refer to my letter dated 30‑4‑63, which I wrote to you before leaving Rawalpindi for Karachi en route to the States. I am here since 13‑5‑63 and am scheduled to return to Pakistan in the end of October or beginning of November 1963.
As I spoke to you when in R. Pindi, I left my daughters Saira, Nighat and Afia to your charge and appointed my brother Muhammad Said Shaikh as their legal and natural guardian. I understand that the girls have been taken to Lahore by my brother‑in‑law, without the consent of my brother who in my absence is their guardian. Thereby they have violated the law of the land and I am considering taking legal action (if necessary) to return the children to R. Pindi. I further understand that Mrs. Ata‑ul‑Haq (the wife of my brother in‑law) approached you to get transfer certificate for the three children and you rightly refused to accede to her request, without any written approval. I am writing this to confirm and endorse your action. I am sorry to have to tell you that my brothers are extremely greedy and immediately after the death of my wife, they misappropriated the property which had been legally inherited by my children and me. They thought that I shall not come to know of it since I was known to be scheduled for a course of training in America. To their bad luck, I come to know of their illegal action. At my instance the Court cancelled the illegal transfer of property. Now, again taking advantage of my absence from Pakistan, they are trying to snatch the children to another station to enable them to strengthen their evil designs on our property. I hereby authorise you to ask Mrs. Ata‑ul‑Haq (who lives at 139 Burton Road, Rawalpindi) with reference to her request for the transfer certificate that the father of the children does not agree to the change of school of the girls and that the girls will continue to receive their education in the Station School during this year and for so long as my station of permanent posting is R. Pindi. Any cost incurred by you in this connection will be payable by me. Thanks a lot.
Yours sincerely,
(Sd.) M. S. Siddiqi,
C/o Foreign Training Officer
Sheppard AFB., Texas, USA."
A perusal of the above letter would show that it substantially corroborates the statement of R. W. 4. The third circumstance in this respect is the fact that the maternal grand‑mother in column "K" of her own application recited that notices had been received by her and the educational institutions concerned; complaining that she had removed the minors illegally to Lahore due to which she was filing the present application to Court. A copy of the notice received and its reply which was sent by Mr. Ata‑ul‑Haq are on the record of this case on pages 19 and 21 respectively having been filed (as true copies) under the attestation,, of Sh. Mahboob Elahi Advocate, the then learned counsel of the maternal grand‑mother, alongwith a list of documents also signed by him. I do not want to go into the contents of these notices because these documents have not been formally proved or exhibited in the case and for my purpose only this much is enough that R. W. 4 deposed that he did protest to Mr. Ata‑ul-Haq against the removal of the children. It will thus be seen that the statement of R. W. 4 was being corroborated from all attending circumstances and it should not have been rejected on the grounds on which the learned Guardian Judge rejected it.
12. A small point was argued before me that the appellant in this case did not himself appear into the witness‑box and, therefore, the facts, as they are being advocated here on his behalf should not be accepted. If the non‑appearance of the appellant is a ground for not examining the pleas of the appellant, then this ground is equally applicable to the maternal grandmother herself, because she too did not appear in the witness‑box not even to show her suitability for being appointed as a guardian. In this respect, it will thus be evident that both parties are sailing in the same boat. Be that as it may, the net result is that in spite of the parties not having appeared in the witness‑box, the Court is not precluded from examining the facts from the record as it is before it. The findings, which I have recorded hereinbefore, and the circumstances, to which I have adverted to, are supported from authentic material on the record and mostly from the respondent's own witnesses or evidence.
13. One reason given by the learned Guardian Judge in support of his judgment was that till 12‑11‑1963, when the application was filed in Lahore, the appellant had raised no protest or taken no exception. This finding too is based on misreading of evidence or suffers from omission to read the relevant evidence. The letter of the appellant, dated the 27th of May 1963, written from the U. S. A., took exception to the removal of the minors to Lahore and so did the notice issued by the uncle of the minors (who had been put incharge of them), through a counsel to Mr. Ata‑ul‑Haq. Again the appellant was still in America on 12‑11‑163, when the application by the maternal grand‑mother was filed in Lahore and the observation of the learned Guardian Judge, that no objection to the removal of the minors had been taken by the appellant till that date is a totally misfit in the very context of the situation and the overall circumstances of the case.
14. Learned counsel for the respondents argued that it is the minors actual place of residence where, he, in fact is, at the time of the application which must necessarily and in all circumstances determine the jurisdiction of the Court under section 9(1) of the Act. The contention has no force for various reasons, Firstly, in section 9(1), the phrase used is not where the minor "resides", but where he "ordinarily resides". If the: contention of the learned counsel is accepted it will tantamount to drop the word "ordinarily", or to make it redundant which it is obvious cannot be done. Secondly, the word "Ordinarily" has been intentionally used to bring in a consideration other than that of mere factual residence‑See the case‑law already referred to in Paragraphs 9 & 10 of this judgment and Mt. Lallta Tawaif v. Paramalma Prasad (A I R 1940 All. 329), Jhala Harpalsinh Natwar Sinhji v. Bai Arunkunvar (A I R 1954 S A U 13), Thirdly, the word "ordinarily" means more than mere temporary residences and if this word is omitted, then mere temporary residences will also become; residences within the meaning of the clause under construction which, it is obvious, cannot be the intention of the Legislature on the subject‑See Chandra Kishore and another v. Smt. Hemlata Gupta (A I R 1955 All. 611), Mubarik Shdh Khan v. Mst. Wajeh‑ul‑Nissa and others (53 P L R 194), Mst. Nazir Begum v. Ghulam Qadir Khan and Sm. Vimalabai v. Baburoo Shamrao Kshirsagar in (A I R 1951 179) and In re: Erskin ((1893‑94) 10 T L R 32) where Lord Esher Master of Rolls with whom the other two lords Justices concurred, wrote as follows with regard to the interpretation of the phrase "ordinarily resided":
"The petitioning creditor desired to show that within a year before the presentation of the petition, the debtor had `ordinarily resided' in England. If a young came to stay with a relative in London for some weeks it could not be said that he resided in London. If a person went to a hotel and stayed there a month he could not be said from that to reside there. This young man came to London for what purpose they did not know. All they knew was that when he was in London he had a bed‑room at a lodging‑house in Half Moon‑Street, and be slept there at the intermittent times stated in the affidavits. 1t was perfectly consistent with that state of things that he was a mere visitor there. There was really no evidence that the debtor `resided in England. But, further than that, the section required that he should, have `ordinarily resided' in England. He merely came to London on a visit. Even, however, if they assumed that he resided here, he did not `ordinarily reside' in London. Therefore, upon the two grounds the petitioning creditor failed. There was, first, no evidence that the debtor `resided' in London; secondly there was no evidence that he `ordinarily resided' in London. The appeal must, therefore, be allowed, the receiving order must be rescinded, and the petition must be dismissed."
Fourthly, if the construction as put forward by the learned counsel for the respondent is accepted then it will seriously affect those situations where a minor is removed from place to place in order to defeat the process of law and the jurisdiction of Courts. The interpretation put by the learned counsel will then not be workable and in cases of removal will lead to defeat the ends of justice as pointed out in Sarat Chandra Chakarbati v. Forman and Mst. Nazir Begum v. Ghulam Qadir Khan and another and in Sarada Nayar v. vayankara Amma and others (A I R 1957 Ker. 158), some points and passages from which have already been borrowed by me and reiterated in Paragraph 4 of this judgment.
15. Learned counsel for the respondents then argued that it is a question of fact in each case as to which is the place where a minor ordinarily resides at the time when an application under section 9 of the Act is filed and, as such, the question of introducing concepts of constructive custody of the father, or of the removal of the ward, are entirely extraneous and should not be imported into the field. The contention is not correct. To say that a particular question is a question of fact is different from saying as to what circumstances are relevant to be taken into consideration for giving a finding on that question of fact. If the contention is only this much that to determine as to where a minor ordinarily resides is a question of fact, I have no quarrel with it, but if the argument is to be extended further to canvass that it means that where the minor, in fact, is, then that is not a correct extension of the said argument and nor has any Court so far accepted it. It is not the factual location; existence or, placement of a minor, as a matter of fact, in any particular place g which is to be taken note of, but the place where the minor ordinarily resides. Learned counsel .in support of his contention referred to Ram Sarup v. Chimman Lal and others (A I R 1952 All. 79), Annie Besant v. Narayaniah (I L R 38 Mad. 807 (P C)), but in none of them it is so laid down.
16. Learned counsel for the respondents referred to Annie Besant v. Narayaniah, for another purpose as well and that was that when a person is put in any educational institution then that place becomes his ordinary place of residence. This cannot be a universal rule. The facts of the case, on which the learned counsel is relying, were somewhat peculiar and quite different. In that case, a Hindu father entered into an agreement with the defendant for educating his child in England. The defendant, acted on that agreement and took that child to England and put him in the University of Oxford. Later on, the father revoked that agreement and filed a suit for the return of the child.
