The Welfare of Minors outweighs Procedural Technicalities, and the Mother’s Relocation to Karachi should dictate Jurisdiction --- Supreme Court of Pakistan Allows Transfer of both cases to Karachi 

Islamabad 01-02-2025: In a landmark decision, the Supreme Court of Pakistan has ruled in favor of transferring a guardianship case and a related family appeal from Islamabad to Karachi, reinforcing its jurisdiction over family matters under the Family Courts Act, 1964 (FCA) and Article 187 of the Constitution. The case (C.M.A. No. 100 of 2024), clarifies the exclusive authority of Family Courts in guardianship and custody disputes and establishes that such cases are transferable under Section 25-A(2B) of the FCA.   

The applicant, had initially obtained Khula (dissolution of marriage) from the Family Court, Karachi (East) in 2014. She was also granted interim maintenance allowance for her minors, which the Respondent-Father, failed to deposit. As a result, his right to defense was struck off, and maintenance was decreed in favor of the applicant.  

In 2020, the respondent filed a guardianship petition in Islamabad, seeking permanent custody of the minors, which was dismissed in 2023. The Respondent subsequently appealed the dismissal in the District Court, Islamabad (East), while the applicant also filed a separate guardianship petition. Due to her relocation plans to Karachi, the applicant sought a transfer of both cases to Karachi Courts on grounds of hardship and the welfare of the minors.  

The Respondent-Father, represented by Dr. Babar Awan (Sr. ASC), opposed the transfer, arguing that:  

1. The application was filed under Section 25-A(2B) of the FCA, which does not cover guardianship matters.  
2. Section 4A of the Guardians and Wards Act, 1890 (GWA) limits the transfer of guardianship cases to district-to-district transfers by High Courts only.  
3. The Supreme Court of Pakistan lacked jurisdiction under Article 175(2) of the Constitution to transfer the case.  
4. The applicant had not provided proof of residence in Karachi or school enrollment for the minors.  

Conversely, Mr. Muhammad Habib Ullah Khan (ASC), counsel for the applicant, emphasized that:  

1. The minors’ welfare is paramount, and their well-being would be best served by transferring the case to Karachi.  
2. The father permanently resides in Karachi, making it feasible for him to pursue proceedings there.  
3. The Supreme Court of Pakistan has the power under Section 25-A(2B) of the FCA to transfer family matters, including guardianship cases, across provinces.  
4. Article 187 of the Constitution grants the Supreme Court of Pakistan authority to ensure “complete Justice” in cases not explicitly covered by statutory provisions.  

In its judgment, authored by Mr. Justice Irfan Saadat Khan, the Supreme Court of Pakistan rejected the Respondent’s jurisdictional objections and ruled in favor of the applicant, establishing the following legal principles:  

Family Courts Have Exclusive Jurisdiction Over Guardianship & Custody Cases. The Guardianship and custody matters fall under the Family Courts Act, 1964 (FCA), not the Guardians and Wards Act, 1890 (GWA). Family Courts are deemed District Courts under Section 25 of the FCA, making them the competent forum for such cases. 

The Section 25-A(2B) of the FCA does not explicitly provide for transfers between Islamabad Capital Territory (ICT) and other provinces.  However, Article 187 of the Constitution empowers the Supreme Court of Pakistan to ensure “complete Justice”, allowing such transfers where necessary.   

The welfare of minors is the primary factor in transfer applications.   Since the mother has legal custody, the case should be heard in her place of residence. The Respondent’s objection regarding lack of proof of residence or school enrollment was dismissed. 

The Supreme Court of Pakistan allowed the transfer of both cases (1) Guardianship Petition from Family Court, Islamabad (East) to Family Court, Karachi (East) and (2) Family Appeal from District Court, Islamabad (East) to District Court, Karachi (East). The Court emphasized that the welfare of minors outweighs procedural technicalities, and the mother’s relocation to Karachi should dictate jurisdiction.

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