2024 CLC 1170
Family Court is empowered to take cognizance and try any offence under Muslim Family Laws Ordinance, 196 1---Wife was precluded to file complaint through attorney.
Registration of dower deed:
If the respondent No.1/ wife has proved the execution of the document through production of two marginal witnesses as per the provision of Article 79 of the Qanun-e-Shahadat Order, 1984 then the objection of the learned counsel for the petitioners that it was an unregistered deed is of no significance. Rel.‘Inayat Ullah Vs. Mst. Pareveen Akhtar” (1989 SCMR 1871), “Mst. Rehmat Bibi Vs. Haji Allah Dewaya and 02 others” (2009 CLC 290), Masal Khan vs. Mst. Shah Tarina and another (2012 CLC 206), Fazal Ur Rehman vs. Sosan Jan and other (1989 SCMR 651)/.
Payment of deferred dower during subsistence of marriage to wife.
It was also one of the objections of learned counsel for the petitioners that since the marriage between the parties is still intact, as such, the respondent/ wife could not be held entitled for recovery of the deferred dower during subsistence of the marriage. Recently the apex Court in the case of ‘Khalid Pervaiz Vs. Samina and others” (2024 SCMR 142), while dismissing the appeal of the husband, has observed to levy a substantial compensatory cost upon him for indulging the wife into unnecessary and fruitless litigation and that too in a family matter up- to the apex Court but was not imposed only for the reason that he was ready to deposit the dower before the learned Family Court within a period of one month. Reliance is also placed on the cases of ‘Qasim Raza Vs. Additional District Judge Mailsi District Vehari and 02 others” (2018 CLC Note. 2) and “Muhammad Shabbir Vs. Rehan Kauar and others” (PLD 2013 Lahore 102) wherein it was held that “According to injunctions of Islam, there is no split on the dower, whether deferred or prompt, dower was obligatory on husband, which was the entitlement of the wife as consideration of marriage”. Thus, the objection of the learned counsel for the petitioners is not in accordance with law, in the circumstances.>br> Enhancement of maintenance allowance for wife and minor by appellate Court without filing any appeal:
Next, it was the objection of learned counsel for the petitioners that the learned appellate court has enhanced the maintenance allowance of the respondents/ plaintiffs without their appeal, thus, has committed an illegality. It appears that the learned trial Court has granted only Rs.2000/- per month for each of the respondents/ plaintiffs. Admittedly, the respondent No.1 is wife of the petitioner No.1 while respondent No.2 is son, who is school going and thus the learned appellate Court, while considering Rs.2,000/- per month as insufficient amount to meet the daily expenses of the respondents in view of escalation of prices of the commodities, devaluation of currency and inflation globally in juxtaposition with the sound financial possession of the petitioner No.1 (husband of respondent No.1 and father of respondent No.2), has rightly enhanced the maintenance allowance of each of the respondents to Rs.5000/- per month, with 20% annual increase. In the peculiar facts and circumstances of the instant matter and evidence on the record, it was a right approach of the learned appellate Court rather has arrived at a just decision on the issue of the maintenance of the respondents.
WP. No. 883-M of 2018
Akmal Khan etc vs Mst. Noorin etc
13-12-2024
بچے کی ولدیت کے تعین کیلیے فریقین کی رضامندی کے بغیر ڈی این اے ٹیسٹ نہ کرایا جاسکتا ہے
PLD 2024 Lahore 715
Consent of the parties is essential to decide claim of the parties with respect to paternity of the child. If the parties do not give consent for such DNA examination, then learned trial Court can draw adverse inference as per Article 129 (g) of Qanun-e-Shahadat Order, 1984 and shall proceed to decide the question of paternity on the basis of(naeem) evidence produced by the parties. In this respect, Court can also take help from Quranic verses and Hadith of Holy Prophet.
WP 75322/22
Kaneez Fatima and 1 other Vs Senior CIvil Judge etc
Guardian and Wards Act, 1890 (VIII of 1890)-- ----S. 25--Application for custody of minor--Allowed--Entitlement for custody of minor--Refusal of general leave to take .................
PLJ 2024 Lahore 828
Present: Sultan Tanvir Ahmad, J.
versus
LEARNED ADDITIONAL DISTRICT JUDGE, LAHORE and 2 others--Respondents
W.P. No. 27113 of 2024, decided on 27.8.2024.
Guardian and Wards Act, 1890 (VIII of 1890)--
----S. 25--Application for custody of minor--Allowed--Entitlement for custody of minor--Refusal of general leave to take minor abroad--Appeal--Turned down--No contribution of father for welfare of minor--Visitation schedule was not observing--Territorial jurisdiction--Appellate Court had not exercised jurisdiction conferred by law to properly consider request of petitioner--It had been ignored that respondent was not taking any interest or contributing for welfare of minor and his complete failure in observing visitation schedule, framed by Guardian Court--It was considered appropriate to permit custodial mother to take minor to USA for education purposes--The petitioner undertake that prior to change of residential address or educational institution, information of same in such eventuality should be given to Guardian Court--The petitioner was allowed to take minor to USA for educational purposes and judgment of Appellate Court to that extent was modified--Petition allowed. [P. 835] A, B & C
PLD 2012 Sindh 166, PLD 2018 Sindh 377, 2019 YLR 2692 and
2022 SCMR 2123 ref.
Barrister Syeda Maqsooma Zahra Bokhari, Mr. Mubashar Hussain and Ms. Iqra Liaqat, learned Advocates for Petitioner.
Barrister Marryam Hayyat for Amicus Curiae.
Ex-parte vide order dated 05.06.2024 for Respondent No. 3.
Date of hearing: 15.8.2024.
Judgment
The petitioner filed an application, under Section 25 of the Guardians and Wards Act, 1890 (the “Act of 1890”), for the custody of minor Rayyan Muhammad Yamin (the “minor”) born on 28.10.2015 in United States of America (“USA”). Respondent No. 3/father was proceeded against ex-parte due to his failure to pursue the case and thereafter, vide ex-parte judgment dated 21.03.2024 the application was allowed and the petitioner was held entitled for the custody of the minor, however, learned Judge Family/Guardian, Model Town, Lahore (the ‘Guardian Court’) refused the general leave to take the minor abroad and rather a condition has been imposed on shifting the minor beyond territorial jurisdiction. Being aggrieved, the petitioner approached the learned Appellate Court through Guardian Appeal No. 38/24. Nevertheless, to the extent of above said refusal or condition the prayer of the petitioner was turned down, hence, this petition.
2. Barrister Syeda Maqsooma Zahra Bokhari (learned counsel for the petitioner) has argued that learned two Courts below have not considered that the minor was not just born in USA but he also has his education institution in USA, therefore the minor cannot be restrained from returning to his place of birth and to resume his education; that the restriction in Section 26 of the Act of 1890 comes into effect when there is a reason or some application from a non-custodial parent who wishes the minor to be close for meeting(s) or adherence of schedule framed by the learned Guardian Court, however, in the present case the respondent-father despite knowledge of the proceedings up-till now has failed to take any interest in the Court proceedings or to observe the visitation schedule or for that matter to take any step for the welfare of the minor. Learned counsel for the petitioner has also argued that the law has already been settled by the learned Sindh High Court in cases titled “Dr. Aisha Yousuf versus Khalid Muneer and 2 others” (PLD 2012 Sindh 166) and “Scherazade Jamali versus Hisham Gillani and others” (PLD 2018 Sindh 377) but somehow the learned Appellate Court, instead of following the principle settled or being persuaded from the observations made therein, has refused adhering to the same for the reason that these judgments have not declared Section 26 of the Act of 1890 as ultra vires and this approach adopted by the learned Appellate Court is not tenable. Added that even otherwise, the learned Appellate Court should have granted general leave to the take the minor to USA for educational purposes.
3. Barrister Maryyam Hayat, learned Amicus Curiae has stated that in case titled “Mst. Sidra Asif versus Additional District Judge and 2 others” (2019 YLR 2692) it has already been observed that in guardianship cases, the Courts exercise parental jurisdiction and stand in loco parentis, thus, the jurisdiction could not be hampered with undue interference of technicalities. Therefore, the Court must perform its legal duties to regulate the custody of the minor in order to ensure his well-being and welfare which should be paramount and dominant consideration. She further stated that it was held in the case titled “Raja Muhammad Owais versus Mst. Nazia Jabeen and others” (2022 SCMR 2123) that Court’s jurisdiction in custody cases is in the form of parental jurisdiction which means that the Courts should not only consider all factors including physical and emotional needs, medical care but also relevant is the parent’s ability to provide a safe and secure home where the quality of the relationship between the child and each parent is comfortable for the child, however, the learned Guardian Court has ignored the same. It is further stated that the intent of the legislature behind Section 26 of the Act of 1890 is to protect interest of the non-custodial parent by imposing limits on removing children from jurisdiction; that the said section is not applicable here as the respondent-father was proceeded against ex-parte in both the forums below, which essentially shows that the respondent-father is not interested in meeting the minor, thus, the protection of Section 26 of the Act of 1890 is not applicable. She has further stated that the respondent-father is resident of USA and does not even reside within the local limits of the Court, therefore, the apprehensions disclosed by the learned Courts below are not rational and judicious. She has apprised that the minor can have better education and financial conditions in USA.
4. Heard. Record perused.
5. In “Scherazade Jamali” case (supra) the learned Sindh High Court resolved the issue as to the restriction on the movement of a ward out of the jurisdiction, as contained in Section 26 of the Act of 1890, while observing that the ward cannot be penalized for the dispute between the parents and if better education facilities or institutions are available in any part of the world including Pakistan, there is no justifiable reason that the ward should be deprived to have access to such institutions or facilities. The same is categorized as psychological trauma to the ward, while further observing that the Courts below should not view the welfare only from the angle that father must not miss the opportunity to see his child but at the same time it should be seen as to whether the child is capable of studying abroad. The Court in the said case concluded as follows:
“… Welfare of the minor includes his material, intellectual, moral and spiritual well being. In accomplishment of such object it becomes the duty of the Court to take care of the ward’s welfare and shall ensure that the litigating parents are not disputing to settle their own score or to satisfy vanity or even to soothe his/her craving of love and affection for minor as it could only he done if the welfare of the ward demands. Guardian Courts sometime lose sight of the welfare of the ward when love and affection is demonstrated by parents which is considered as overriding effect. True love of mother and father no doubt is important but what is more important is the welfare of the ward and it should not be limited to any one’s right of custody, but a larger view is to be taken from ward’s point of view.
No doubt father is a natural guardian and any decision that concerns material, intellectual, moral or spiritual well being is always a father’s prerogative, but such can always be maintained and achieved in case the custody remains with mother. There are occasions when both parents or at times even the environment that they have is not considered as conducive for ward, custody and supervision may be entrusted to foster parents ….”
(Emphasis supplied)
6. In the present case, respondent-father has not shown any interest in the visitation schedule framed by the learned Guardian Court. It has been apprised that no concern is being demonstrated by the respondent-father in contributing towards the welfare of the minor. Throughout the case before the learned Guardian Court, learned Appellate Court or this Court the respondent-father has not even joined the proceedings. In “Dr. Aisha Yousuf” case (supra) the custodial parent/mother obtained job in Dubai and she requested the learned Court to permit her to take the ward to Dubai. The learned Court found the request reasonable and permitted her to take the ward out of the jurisdiction, while allowing the Constitution Petition. It will be beneficial to reproduce paragraph No. 12 of the said judgment:
“12. In the present case two Court below have concurrently held that the custody shall remain with the mother and father has not challenged such findings. Therefore, as far as question of custody of the minor is concerned there does not appear to be any dispute between the parties. Regarding visitation rights the two Courts below have concurrently held that from 6-00 p.m. of alternate Saturday to 6-00 p.m. of following Sunday baby girl will be with the father. It is stated by learned counsel for the petitioner that mother is doctor by profession and she has obtained a job in Dubai and therefore prayed that she be allowed to take the baby to Dubai. The requests seems to be perfectly reasonable. Just as a father cannot be asked to abandon his career if he wants custody of a child, a mother cannot be asked to forsake her career if she wants custody of the child. In these days a woman is equally entitled to pursue a fruitful rewarding and satisfying career. Gone are the day when social norms used to be that a woman is expected to remain within four walls of a house and bring up children and father was free to roam the world in search of livelihood. Mandate’ of the Constitution as contained in Article 25 is that the State can make law for the protection and welfare of women and children. The Supreme Court has in Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another, PLD 1990 SC (sic) held that while it is permissible to practice discrimination in favour of women and children but it is forbidden against them. Therefore spirit underlining all the legislation has to be that if anything the Court should lean in favour of weaker sections of society and it does not need any sophistry of arguments to see that women in this society, besides others, are certainly weaker section. Therefore, a female has as much right to roam in search of career and livelihood wherever she finds it more apt and she cannot be deprived of custody of the children for mere reason that she wants to serve abroad. Therefore, in my opinion it would be fair and reasonable to permit the mother to take the child out of Pakistan along with her when she goes to Dubai for her employment.”
(Underlining is added)
7. In C.P. No. S-411 of 2022 titled “Gul Mina Afridi versus Rana Abdul Kareem and others” the Sindh High Court referred to a judgment of Karnataka High Court in WP No. 892 of 2023 titled SmtRakshitha vs Sri C C Shashikumar passed on 19 January, 2023, where the permission was granted to mother on the ground that father was indolent and he was uninvolved in the matters of upbringing of the ward. Reliance in the said case was also placed upon the American jurisprudence and case titled Watson v. Watson (Aug 03, 2004 I 2004 Neb. App. LEXIS 190) in which the Court granted mother’s motion to remove minor children from Nebraska to pursue her job opportunity in Maryland. Here, I would like to reproduce Paragraphs No. 8 and 9 of the said judgment:
“8. Admittedly the world is a global village and countless people are migrating overseas for better opportunities for themselves and especially their children. While so far our legal jurisprudence has sparingly dealt with the situations where the minor was being removed from the jurisdiction of the Court where the consideration remained the protection of the welfare of the minor, however, considering the facts of the present case where the petitioner’s reason of seeking permission for international travel is for her daughter to have intentional exposure, the Courts of law aligned with the international law, in my humble view, are bound to consider that while allowing/denying the permission, whether they are protecting the welfare of the minor or acting otherwise. This responsibility stems from the International Convention of the Rights of Child (“Convention”) which was ratified by Pakistan on 12 November 1990, where Article 3 reinforces the said responsibility in the following words as reproduced herein below:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies, the best Interests of the child shall be a primary consideration.
9. Pakistan is also a party to three other international instruments aiming at directly or indirectly Improving the rights of the child, those being the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified in 1996; the Declaration and Agenda for Action adopted at the issue of the World Congress against Commercial Sexual Exploitation of Children, signed in 1996, and reaffirmed by the Yokohama Global Commitment in 2001, and the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Form of Child Labour Convention, ratified in 2001, all of which make the Interest of the child of primary consideration and through which our Family Courts are bound to make decisions that do justice to the principle of welfare of the child.
8. Now coming to the reasoning given by the learned Appellate Court for not being persuaded from the judgments in cases titled “Dr. Aisha Yousuf” and “Scherazade Jamali” (supra) or withholding permission to take the minor abroad. The learned Appellate Court has observed that in these judgments Section 26 of the Act of 1890 has not been declared as ultra vires. Section 26 of the Act of 1890 reads as under:
“26. Removal of ward from jurisdiction.--
(1) A guardian of the person appointed or declared by the Court, unless he is the Collector or is a guardian appointed by will or other instrument, shall not without the leave of the Court by which he was appointed or declared, remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed.
(2) The leave granted by the Court under sub-section (1) may be special or general, and may be denied by the order granting it.”
(Emphasis supplied)
From a plain reading of above, I do not see any intention of the legislature to place complete embargo on granting permission to restrict ward within jurisdiction. Otherwise, the Courts would not have been empowered to grant leave to take the ward out of the territorial jurisdiction. Sub-section (2) of the above permits the Courts to grant special or general leave and to deny the leave. The learned Appellate Court is correct in its decision that the above provisions are holding the field; however, ignored that the requirement of leave before removing is also for the wellbeing of the ward and protecting the interest of the ward as well as the non-custodial parents. Such leave can be granted, on case to case basis, when welfare of the ward so demands and being exceedingly cautious in using this power. I agree with Barrister Marryam Hayat (the learned Amicus Curiae) who stated that the learned Appellate Court should have proceeded to give findings on merits of the case by considering the request to permit the petitioner-mother to take the minor to USA for education purposes, instead of making the mother or the minor to go through further rigors. The learned counsel for the petitioner has submitted that already harm to the education of the minor has been caused and referring the matter by learned Appellate Court to the learned Guardian Court can further results into damage and/or loss of an academic year.
9. After carefully going through the available documents and hearing the arguments, I am of the opinion that the learned Appellate Court has not exercised the jurisdiction conferred by law to properly consider the request of the petitioner. It has been ignored that the respondent-father is not taking any interest or contributing for the welfare of the minor and his complete failure in observing the visitation schedule, framed by the learned Guardian Court. I do not consider it in the welfare of the minor to deprive him from joining his educational institution in USA, restricting him within the territorial jurisdiction of the learned Guardian Court, in the circumstances of the case. It is considered appropriate to permit the custodial-parent/ mother to take the minor to USA for education purposes. Barrister Syeda Maqsooma Zahra has submitted that the petitioner-mother undertakes that prior to change of residential address or educational institution, information of the same in such eventuality shall be given to the learned Guardian Court.
10. In view of the above, the petitioner-mother is allowed to take the minor to USA for educational purposes and the judgment of the learned Appellate Court to this extent is modified. In case of breach of undertaking or any other relevant condition imposed by learned Guardian Court, respondent-father can approach the learned Guardian Court for cancellation of the permission granted. Petitioner to appear before the learned Guardian Court for intimation about her present residence address and name as well as address of educational institution of the minor in USA.
11. Allowed in the above terms.
(Y.A.) Petition allowed
As per nikahnama of the petitioner and the respondent, her dower was settled as Rs.100,000/-, however, in lieu thereof, admittedly,....................
As per nikahnama of the petitioner and the respondent, her dower was settled as Rs.100,000/-, however, in lieu thereof, admittedly, 7 tola gold ornaments were given to her at the time of marriage that were later on taken back from her, which fact stood proved, when recovery suit was instituted and decree dated 17.12.2016 was passed holding that the petitioner is entitled to recover 7 tola gold ornaments or Rs.100,000/- as their alternate value. During the execution proceedings, the petitioner filed application for recovery of gold ornaments or alternate value at prevailing market rate, which was allowed, however, the said finding was upended by the Appellate Court below and it was held that the petitioner is only entitled to recover Rs.100,000/-. Held that the judgment of the Appellate Court below, during the execution proceedings, is not sustainable inasmuch as the Appellate Court below travelled beyond the decree whereby it was clearly held that primarily, it was 7 tola gold ornaments, which is dower of the petitioner. The word "alternate" used in the decree has special significance. It can be used both as noun or an adjective. In the legal context, when used as an adjective, it describes something that offers or expresses a choice. When used as noun, it describes something that substitutes another. In the context of a decree passed in a case, this choice is vested with the decree holder-the petitioner in present case. In the instant case, dower is very much clear in terms of its weight i.e., 07-Tola gold and is easily available in the market. The petitioner cannot be compelled to accept its alternate value that was settled at the time of Nikah and/or the decree. The ownership of the gold ornaments became vested in the petitioner and any accretion and appreciation of the value of gold ornaments are also to be cherished and enjoyed by the petitioner and she cannot be deprived of such accretion by offering alternate value fixed at the time of her Nikah. It has been further held that the duty of the Executing Court is to carry out the decree and not to add to it or hang it any way. In the instant case, it would be unjust to interpret the decree dated 17.12.2016 in such a manner as put forth by the respondent and justified by the Appellate Court below, during execution, as this would amount to vesting a choice in the judgment debtor (the respondent in present case) to satisfy a decree, which favours him by adopting such means of satisfaction of such decree that are detrimental to the interest of the female the petitioner/decree holder.
WP 3346-18
MST. ZAIB UN NISA ETC VS A.D.J ETC
Mr. Justice Anwaar Hussain
20-11-2024
2024 LHC 5824
The Christian Marriage Act 1872 and the Divorce Act 1869 are the principal family laws for Christians in our country. Every church has its precepts but these statutes prevail where there...............
2024 PCrLJ 2058
The Christian Marriage Act 1872 and the Divorce Act 1869 are the principal family laws for Christians in our country. Every church has its precepts but these statutes prevail where there is a conflict.
This statute consolidated and amended the law relating to solemnizing the marriages of people professing Christianity. It consists of 88 sections. The first three sections are grouped under the heading “Preliminary,” while the remaining sections are divided into eight Parts. Section 3 is the interpretation clause and defines “minor” as a person who has not completed the age of twentyone years and is not a widower or a widow. Parts III, V and VI contain provisions for marriages where one or both parties are minors. In Part III, which bears the heading “Marriages solemnized by Ministers of Religion licensed under this Act”, section 19 enjoins that the father, if alive, or his guardian, if he is dead, and the mother of the minor, if there is no guardian, may give consent to the minor’s marriage. However, such consent is not required if the person authorized to give it does not reside in Pakistan. Sections 20, 21, and 22 describe how the person whose consent to the marriage is required under section 19 can prohibit the issuance of the certificate by the minister and how the latter should proceed when a notice prohibiting the marriage is issued. Part V contains provisions pertaining to marriages performed by or in the presence of a Marriage Registrar. Section 44 stipulates that the provisions of section 19 apply to any marriage under Part V in which either party is a minor. Anyone whose consent is required for such a marriage can enter a protest in the prescribed manner. When such a protest is filed, no certificate will be issued until the Marriage Registrar has examined the case and determined that it should be given. Part VI relates to the marriage of Native Christians, an expression, which as per section 3, includes the Christian descendants of the natives of Indo-Pakistan sub-continent converted to Christianity as well as such converts. Part VII prescribes penalties for various violations and offences under the CMA.
In view of the above, the minimum age for a Native Christian man to enter into a marriage is 16 years and for a woman 13 years in terms of section 60 of the CMA. The consent requirement under section 19 is within the age bracket of 16 to 18 and 13 to 18 years respectively. The marriage can be solemnized in the presence of a person licensed under section 9 in the presence of at least two credible witnesses without the preliminary notice required under Part III. I agree with Mr. Saad Rasool that the CMA does not expressly prohibit the marriage of a minor if it is compliant with section 5 (Persons by whom marriage is solemnized) and does not violate section 88 (Non-validation of marriages within prohibited degrees).
Section 2 of the Majority Act expressly excludes marriage and divorce from its application. A combined reading of this provision and section 11 of the Contract Act would show that they have no bearing on the capacity of a person to act in some matters, including marriage, which are left to be governed by the individual’s personal law – unless the Parliament has enacted a special law in that regard. As a result, the CMA and the Divorce Act of 1869 govern Christian marriage and divorce in Pakistan. The Child Marriage Restraint Act, 1929, does not override them. It is a separate law that punishes those who are responsible for an under-age marriage but does not nulify the marriage.
“Consanguinity” is a relationship by blood while “affinity” is a relationship by marriage. The attitudes of different major world religions towards consanguineous and affinity marriages are diverse. Even in the same religion the practices and beliefs of one community and sect may differ from those of the others. Section 88 of the CMA recognizes that Christians have similar divisions and prohibits validation of any marriage “which the personal law applicable to either of the parties forbids him or her to enter into,” which includes a marriage within the prohibited degree of consanguinity and affinity.
Writ Petition No. 63301/2021 Nasreen Bibi Vs. Station House Officer etc.
-Constitutional petition---Guardianship petition--- Territorial jurisdiction of court---Scope---Plaintiff filed an application for the custody of minor---Defendant in reply.........
2010 YLR 196
Ss. 9 & 25---Civil Procedure Code (V of 1908), S.151 & O. VII, R.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Guardianship petition--- Territorial jurisdiction of court---Scope---Plaintiff filed an application for the custody of minor---Defendant in reply filed an application under O. VII, R.10 read with S.151, C.P.C. by challenging the Territorial jurisdiction of the Guardian Court at "L "---Guardian Judge accepted application of the defendant and returned the petition for its presentation before the competent forum---Plaintiff filed appeal which was allowed and the case was remanded to the Guardian Judge with direction to decide the issue of Territorial jurisdiction along with other issues after recording evidence---Contention of the plaintiff was that since desertion the defendant had not been residing permanently at any place, therefore, the last place of her residence i.e. "L" would be deemed as ordinary residence of the minor---Validity---Stance of the plaintiff was against the record---Plaintiff had admitted in his suit for restitution of conjugal rights and in the constitutional petition that since 19-12-2007, defendant had been residing at "R "---Plaintiff could not take any stance over and above the pleadings---Appellate Court had erred in law while remanding the case with a direction to the defendant to prove the admitted fact with evidence---Impugned remanding order was illegal and without lawful authority---High Court accepted constitutional petition with observation that only the Guardian Judge at "R" possessed Territorial jurisdiction in terms of S.9 of Guardians and Wards Act, 1890 to decide matter of custody of the minor.
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