2013 PLP 1808 (CLC)

GHULAM MUSTAFA MENGAL, J.

Through the instant petition the petitioner (defendant) has impugned the order dated 29th May, 2013, passed by learned Additional Family Judge, Quetta, whereby the application for return of the plaint to the respondent (plaintiff) was rejected.

2. Brief facts of the case are that the respondent filed a suit for dissolution of marriage on the basis of Khulla before the Family Judge, Quetta, praying therein that marriage tie between the parties may be dissolved on the basis of Khulla. During the pendency of the suit on or about 6th May, 2013 the petitioner moved an application for return of the suit to the plaintiff or to dismiss the suit, submitting therein that since both the parties and parents of the plaintiff/respondent are residing in Killi Boman, (Killi Ghunddi), which is falling in District Pishin; therefore, the learned Family Judge, Quetta has no jurisdiction to hear the suit. The said application of the petitioner was dismissed by the trial Court vide impugned order dated 29th May, 2013, hence this petition.

3. Learned counsel for the petitioner submitted that the learned trial Court has failed to appreciate the affidavits of the respondent, annexed with the plaint and that both the parties are residing in District Pishin; therefore, Family Court, Quetta has no jurisdiction to entertain the matter.

4. We have heard the learned counsel for the petitioner and have perused the record of the case as well as the impugned order.

5. Section 5 of the Family Courts Act, 1964, provides that in all matters mentioned in Schedule the Family Courts shall have exclusive jurisdiction to try matter enumerated in the First Schedule. A reference may also be made to Rule 6 of the West Pakistan Family Courts Rules, 1965, which provides that a suit for dissolution of marriage confers jurisdiction on the Family Court within whose local limits the wife ordinary resides, while a suit for maintenance can be filed in the Family Court within whose territorial jurisdiction the cause of action wholly or in part has arisen.

6. In the present case the respondent, as stated above, filed a suit for dissolution of marriage on the basis of Khulla in Court of Family Judge, Quetta. In the plaint, she had shown herself to be resident of Tareen House, Arbab Town, Quetta. In Para No.6 of the plaint, she further stated that the parties are residing within the jurisdiction of that Court. Petitioner in his application raised objection that both the parties are residing in District Pishin; therefore, the plaint is liable to be returned or to be dismissed for want of jurisdiction. While filing rejoinder to the application, the respondent/plaintiff stated that due to misbehavior of petitioner/defendant the respondent/plaintiff along with her parents shifted to Quetta since long and the address is given in the plaint. There is nothing on record so far to show that the respondent/plaintiff did not reside within the territorial jurisdiction of the Family Court, Quetta. The question as to whether the plaintiff/ respondent resides at Quetta or Pishin is question of fact, which can only be resolved after recording evidence of the parties. The trial Court has rightly held that in view of conflicting contentions of the parties, the issue is required to be resolved through evidence.

7. We are of the view that the impugned order passed by learned trial Court does not suffer from any illegality or jurisdictional defect, warranting interference by this Court in constitutional jurisdiction.

8. For the above reasons, the petition is dismissed in limine. MH/66/Bal. Petition dismissed.