2009 PLP 1021 (YLR)

KHAWAJA FAROOQ SAEED, J.

Brief facts leading to this writ petition are that the petitioner and respondent married on 25-12-1995. Through this wedlock two children were born. The marriage ended in dissolution under `Khula' vide order dated 20-9-2008. The petitioner statedly reserved the right of challenging the jurisdiction by stating that since she was living in Lahore with her father. The right was reserved by stating that if in future she moves back to Islamabad, the territorial jurisdiction of the Court shall be challenged. Later when she went back to Islamabad, the miscellaneous application was filed which was fixed for 4-4-2008 on which date the issues with reference to the territorial jurisdiction of the Family Court in Lahore were framed. Order, however, was passed on 19-4-2008 which is now being impugned.

2. It has inter alia been challenged that the said order is full of infirmities and is against the directions of section 24-A of General Clauses Act, 1956. It has further been argued that the same is without applying judicial mind and ignoring the facts that the minors were at Lahore only temporarily and are going to school in Islamabad and their ordinary place of residence is Islamabad.

3. It is an admitted fact that the petitioner is presently not at Islamabad, but the respondents are living there where she is running an institute under the name of "Tender Loving Care" which she obviously cannot leave as the same is a progressive institute and a big source of income for the respondent.

4. On the request of the respondent's counsel and in reply to the objection that the writ petition in this case is not maintainable, the petitioner referred (2005 SCMR 1595) re: "Mst. Bhagggay Bibi and others v. Mst. Razia Bibi and others". Before moving on the merit it will be appropriate to decide the issue of maintainability first.

5. In the present case, the application filed was to challenge as to whether Judge Family Court, Lahore, has jurisdiction to decide the case in respect of the present petitioner and respondent as none of the two is a resident of the city of Lahore. It is a settled issue that no writ petition lies against an interlocutory order unless the controversy between the parties affecting the rights is decided finally and it comes within the ambit of the case decided. Reference is made to (2004 MLD 278) re: "Muhammad Juman v. The State".

6. Since in the present case the issue of jurisdiction was challenged through the said application, order to this extent is final. The objection, therefore, is overruled.

7. Regarding the main arguments that whether the petitioner is residing at Lahore f or Islamabad is a factual controversy. Both the sides have produced in their favour documents. From the respondents' side it has been said that in the civil suit filed by Sultan Khan brother of the present petitioner before the Senior Civil Judge, Lahore, dated 8-10-2007, the address of the respondent has been mentioned as that of Lahore.

8. Even otherwise, the decision given by the Family Court vide its order dated 20-9-2007 in which "Khula" was announced was also by the same Judge and its jurisdiction was not challenged at the said time. This alone was enough to reject the application. This has been so argued by the learned counsel for the respondents to which this Court also agrees.

9. In order to avoid conflict of judgments, the suit for dissolution of marriage having been decided by one Judge all other ancillary issues should also be decided by the same. The respondents counsel seems to be justified in saying that it is the convenience of the lady litigant in family dispute which should be given priority while deciding the place of adjudication of causes.

10. Even otherwise, having not challenged earlier subsequent objection though there is no legal bar cannot be appreciated. Reference is placed on the case of Noor Ahmad Shahid v. Mst. Nasim Bibi" (KLR 1992 Civil Cases 408).

11. In the present case the `Khula' was announced by Judge Family Court, Lahore, which is not being objected to or challenged in respect of its jurisdictional aspect, hence, subsequent miscellaneous application is without any force. The fact that the application was rejected in the month of April and this Court was approached in October also cannot add credence to the claim of the petitioner.

12. The writ petition, therefore, is considered without any merit, hence, is dismissed accordingly. H.B.T./T-7/L Petition dismissed.