2012 PLP 1597 (CLC)

RAUF AHMAD SHAIKH, J.

The petitioner seeks transfer of the petition titled "Shehzad Masih versus Mst. Akhtar Bibi", petition for dissolution of marriage under Divorce Act, 1871 pending before Civil Judge/Judge Family Court, Sahiwal to the Court of learned Civil Judge/Judge Family Court, Rawalpindi, where suit for maintenance and recovery of gold/silver ornaments filed by her and Daud Shehzad minor son of the parties is already pending.

2. The learned counsel for the petitioner has contended that the petitioner is earning her livelihood and is maintaining the minor son through labour being rendered in different houses at Rawalpindi, where she is living with her real sister and as such feels it really hard to pursue the petition for dissolution of marriage pending before the learned Civil Judge/Judge Family Court, Sahiwal. In support of the contentions raised reliance is placed on 1990 MLD 2089 (Lahore) 1999 MLD 3401 (Lahore) and 1999 CLC 1863 (Lahore).

3. The learned counsel for the respondent has contended that the marriage between the parties took place in Tehsil Depalpur District Okara and they resided together in the territorial jurisdiction of civil court, Sahiwal so only the civil court, Sahiwal has jurisdiction to hear the petition for dissolution of marriage and the suit filed by the petitioner. In support of the contentions raised reliance is placed on PLD 1967 Lahore 731.

4. It is true that under section 3(2) of the Divorce Act, 1871 'Court of Civil Judge' means in case of any petition under the said Act, the Court of Civil Judge within territorial limits of which, the husband and wife reside or lastly resided together. However, under section 5 of the Family Courts Act, 1964, the Family Courts shall have jurisdiction to entertain, hear and adjudicate upon the matters specified in Part-I of the Schedule. The Act No.XXXV of 1964 is applicable to all citizens of Pakistan and no provision of the Act ibid provides that it would not be applicable to the family suits of non Muslims including Christians. This Act was enforced with a specific object of expeditious settlement and decision of the dispute relating to marriage and family affairs as is clear from its preamble. In view of section 5 of the Act, the petition filed by the respondent and the suit filed by the petitioner are to be heard by the Family Court established under the Act ibid. This being so, the question of the jurisdiction can be decided only by keeping in view Rule 6 of the Family Courts Rules, 1965. A suit for recovery of maintenance and dowry can be filed in the court in the territorial jurisdiction of which the cause of action wholly or partly has arisen or where the parties reside or lastly resided together. The original School Certificate of Shahzad Masih son of the parties has been shown in the Court and copy thereof has been placed on the record, which inter alia reveals that he is studying in Alma Mater la Rose, Rawalpindi so the contention of the petitioner that she is residing with the minor at Rawalpindi with her sister is not without force. The non-payment of maintenance gives rise to cause of action and from this angle the Family Court at Rawalpindi is vested with the jurisdiction to hear the suit. It is an established law that in the matrimonial disputes and family suits, the convenience of the female is to be kept in view as in our society they stand on weaker footings and it becomes very difficult for them to pursue the cases in other Districts while deciding an application under section 25-A of the Family Courts Act, these realities of life must be kept in view. It would also be necessary in order to avoid conflicting verdicts that these matters be heard and decided by one Court. For the reasons supra, the petition is accepted and petition for dissolution of marriage titled "Shahzad Masih versus Mst. Akhtar Bibi" pending before Mrs. Zahira Manzoor Malik, learned Civil Judge/Judge Family Court, Sahiwal is withdrawn from her Court and is transferred to Mr. Azhar Javed, learned Civil Judge/Judge Family Court, Rawalpindi. KMZ/N-86 Petition allowed.