2009 PLP 1700 (YLR)

SH. HAKIM ALI, J.

Mst. Naseem Akhtar, respondent No.2 had filed a suit for grant of decree of dissolution of marriage, regarding the contract of marriage performed by her on 8-12-2005 with Muhammad Ismail, the present petitioner. Muhammad Ismail appeared in that suit, filed written statement, but thereafter the suit was decreed on 1-11-2006 by the learned Judge Family Court Rahim Yar Khan, on the bare statement of respondent No.2. This writ petitioner has been filed to challenge that judgment and decree, granting dissolution of marriage to Mst. Naseem Akhtar, plaintiff against the defendant/the present writ petitioner.

2. Learned counsel for the writ petitioner submits that plaintiff had incorrectly displayed her residence in the plaint of Niazi Colony, Rahim Yar Khan although in F.I.R. No.371/2006 which she got registered under section 365 of the P.P.C. on 12-9-2006, had stated her residence of village Nabi Bakhsh Indhar, Mauza Kotla Hayat, Police Station Saddar, Sadiqabad, District Rahim Yar Khan. Therefore, the learned Judge Family Court at Rahim Yar Khan had no jurisdiction to pass decree in favour of the plaintiff. Further submits that during the pre-trial conciliation proceedings, statement of the petitioner/defendant was not recorded, and in the suit for restitution of conjugal rights, Mst. Naseem Akhtar was not directed to submit written statement. In the last, it has been submitted by the learned counsel that there was no plea of `khula' in the plaint but the learned Judge Family Court went on to decree the suit on the basis of `khula'. Therefore the judgment and decree passed by the learned Judge Family Court on 1-11-2006 may be declared illegal and unlawful.

3. After considering the arguments and from the perusal of the record, it has transpired that according to Proviso to Rule 6 of the West Pakistan Family Courts Rules, 1965 a suit for dissolution of marriage or dower can be filed where the wife ordinarily resides and the words "ordinarily resides" refer to a residence which has been taken up by the plaintiff with her own choice with an intention to live in. In para No.2 of the plaint, Mst. Naseera Akhtar had explained the circumstances which had compelled her to file the suit at Rahim Yar Khan. She had clearly mentioned in that para that as threat to abduct her was hurled by defendant Muhammad Ismail, so she had left the place of Mauza Kotla Hayat, Tehsil Sadiqabad and had taken up residence in Niazi Colony, Rahim Yar Khan City along with her own brother Safdar Ali. It was so that she had filed the suit on the basis of that residence. It has been noted that this residence plea was sufficient for filing of the suit as envisaged by Proviso to Rule 6 of the West Pakistan Family Courts Rules, 1965 because there is no hard and fast rule for that purpose to determine the ordinary residence. Each case has to be seen according to its own circumstances vide PLD 1983 Lah. 462 (Muhammad Ilyas v. Mst. Zarina) and PLD 1979 SC 864 (Fazal Khitab v. Mst. Naheed Akhtar and another). Moreover, the petitioner had got full opportunity to defend that suit on merit, and no prejudice was stated to have been caused to petitioner due to hearing of the case at Rahim Yar Khan.

4. As regard pre-trial reconciliation, I have not been Able to find out that recording of statement during the pre-trial conciliation proceedings was a mandatory requirement of any law. The learned counsel has also not been able to refer any law upon it. So far the plea that version of `khula' having not been entered into the plaint, the suit cannot be decreed, is a wrong assertion. As the contents of the plaint have shown conversely to the plea raised by the petitioner. According to Paras Nos. 2 and 3 of the plaint, it has categorically been stated by the plaintiff that she was a student of BA and defendant was illiterate, who had extended threats to her to leave the college and the education and get `rukhsati' performed with him. Moreover, in the plaint, I have found that plaintiff had clearly entered that she had got sever hatred against the defendant and could not live with him in any circum?stances. The learned Judge Family Court had also recorded the statement of Mst. Naseem Akhtar on 1-11-2006, in which she had reiterated this plea which she had raised in the plaint. Therefore, learned Judge Family Court on 1-11-2006 had passed the decree on the basis of `khula' by fixing consideration amounting to Rs.500 as was revealed from the copy of `Nikah Nama', It may be mentioned here that it is not necessary that here must be used word of `khula' in the plaint. The contents of the plaint can be examined and seen from t where it can be found as to whether sentences used are depicting strained relations between the parties to the extent that they cannot live within the limits prescribed by Allah Almighty. Therefore, where there is hatred, the suit can be decreed on the basis of this fact. As to non-filing of written statement, it may be taken note of that in the present circumstances, this objection has lost its efficacy because it has caused no prejudice and has got no impact upon the merit of the case, particularly when the suit for dissolution of marriage has been decreed in favour of the plaintiff.

5. So keeping in view all the above-noted facts and circumstances, decree passed by the learned Judge Family Court cannot be declared illegal and unlawful. Therefore, the writ petitioner is dismissed in limine. H.B.T./M-172/L????????????????????????????????????????????? ??????????????????????????????????? Petition dismissed.