P L D 1952 Lahore 227 (PLP)

S. A. RAHMAN, J.‑This is a second appeal from as order of the learned District Judge, Shahpur at Sargodha, reversing the decision of the learned Senior Sub‑Judge, Sargodha, by which he granted a decree for dissolution of marriage to Mst. Fazlan Bibi against her husband Muhammad Azam. The facts involved in the case may shortly be stated. The parties were married some 14 or 15 years ago at village Dhariala Julap in the Jhelum District. The parents of the wife subsequently shifted to Bhalwal in the Sargodha District while the husband took up his residence in Chelianwala, District Gujrat. The plaintiffs allegations were that in March 1947 her husband turned her out from his house in Chelian wala and en route to Bhalwal she broke her journey at Mandi Baha‑ud‑Din, where some other relatives of her's resided. There the husband was also called as well as her brother. The talks between the parties remained inconclusive and then all of them shifted to Bhalwal for further negotiations. There a panchayat took place in which some respectable persons of Bhalwal participated and an oral agreement was arrived at between the parties to the effect that the husband would not maltreat his wife in future and in case of breach of this agreement she would be entitled to live at Bhalwal and get maintenance from her husband at that place. In pursuance of that agreement, it was stated that she went back to her husband at Chelianwala but was turned 'out again in May 1947. She then took up residence with her brothers at Bhalwal. It was asserted inter alia that the husband had failed to pay his wife maintenance allowance for more than two years prior to the institution of the suit for dissolution of marriage. Other pleas were also taken as to cruelty and desertion for over three years. The trial Court found against the wife as regards allegations of cruelty and desertion for over three years prior to the institution of the suit. It believed the evidence about the oral agreement alleged to have been arrived at in Bhalwal, held that the wife had been turned out unjustly by her husband and that she had not been maintained by the husband for two years prior to the suit. On the basis of these findings it was held that the Sargodha Court had jurisdiction and the suit was decreed. In appeal, the learned District judge found against the wife as regards the factum of the oral agreement said to have been arrived at in Bhalwal. On this ground he came to the conclusion that the Sargodha Courts had no jurisdiction to entertain this case. He, therefore, allowed the appeal. Mr. Siraj‑ud‑Din Pal on behalf of the wife contended before me that the finding of the learned District Judge as regards the oral agreement said to have been concluded at Bhalwal was erroneous. The finding, however, cannot be assailed in second appeal as it concerns a pure question‑ of fact and nothing has been shown which might suggest that the finding was vitiated by any error of law or fact committed by the learned District Judge. The finding, therefore, must be accept ed as conclusive in this case. Mr. Siraj‑ud‑Din Pal appears to be on stronger ground when he urges that, even apart from the special agreement set up, the wife would be entitled to bring a suit for dissolution of marriage in the Sargodha Courts provided she could establish that she had been unjustly turned out from the house by her husband and was entitled to live apart and to be main tained by him where she resided. If it could be proved that her conduct in living apart from the husband was justified and further that the husband had failed to maintain her for over two years prior to the institution of the suit, she could legiti mately claim dissolution of marriage from the Sargodha Courts, as part of the cause of action would in that case be deemed to arise within the Sargodha District where she had taken up residence. He referred to the general principle of law that a debtor must seek his creditor and pay him the money due under the law provided that he was residing within the realm. If the wife was entitled to maintenance she could claim it wherever she resided within the realm, unless there was a specific contract between the parties providing to the contrary. No such contract is alleged much 'less proved in the present case. In support of his position, the learned counsel referred to Mst. Kanij Johra v. Raja Hussain, A I R 1937 Nag. 39 (S. B.) and Tusliman Bibi v. Abdul Latif Mia, A I R 1936 Cal. 97 (S B). These authorities undoubtedly lend support to his contention and my attention has not been drawn to any authority to the contrary. A perusal of the learned District judge's order shows that he did not apply his mind to this aspect of the case at all. He merely held that, as a specific agreement to pay mainten ance at Bhalwal was not, in his view', satisfactorily established, the jurisdiction of the Sargodha Courts would be ousted. He failed to notice that, even apart from the special agreement, if the wife was entitled to claim maintenance while living apart from the husband and the husband had failed to meet his obligations in this respect for over two years preceding the suit, she could invoke the aid of Sargodha Courts for obtain ing the relief of dissolution of marriage. In such a case she would have to establish that, while living in Bhalwal in the Sargodlha District, for which she had justification, she was not paid any maintenance by her husband which was due under the Muslim Law. This fact would be included in the whole bundle of facts which she would have to prove in order to succeed, and consequently a part of the cause of action would be deemed to arise within the Jurisdiction of the Sargodha Courts. Mr. Jamil Hussain Rizvi on behalf of the husband was unable to urge anything which could militate against this view of the law. I hold, therefore, that the learned District judge's order cannot stand. I hereby allow the appeal, set aside the order passed by the learned District judge and remand the appeal to him with the direction that he should now hear the parties in the light of the observations made above and then dispose of the appeal in accordance with law. Costs will abide the final event. The parties have been directed to appear before him on the 19th November, 1951. A. H. Appeal allowed.