P L D 2001 Lahore 188 (PLP)

The petitioner also denied -the claim of maintenance of the respondents on merits and sought dismissal of the suit.

4. Out of the pleadings of the parties the following issues were framed by the learned Judge Family Court: (1) Whether this Court has no territorial jurisdiction to entertain the suit? OPD (2) Whether the plaintiff No. l has been divorced and is residing alongwith the plaintiffs with her own wish? OPD (3) Whether the plaintiffs are entitled to claim maintenance from the defendant? If so, then of what period and of what rate? OPP (4) Relief.

5. Syed Bashir-ul-Hassan, special attorney of respondents and Mst. Anees Fatima respondent while appearing in the witness-box as P.Ws. have stated that the petitioner having contracted second marriage was living with his second wife and was not maintaining the minors. The witnesses were cross-examined at length but nothing material could be brought to dislodge their claim. The petitioner also did not produce any evidence in rebuttal. The learned Family Judge after a detailed discussion of evidence decreed the suit for maintenance in favour of respondents and granted maintenance allowance to respondent No.8 to the tune of Rs.1,000 per month for the period of her Iddat and a maintenance allowance of Rs.4,000 per month to three daughters namely Syeda Sameena Zia, Syeda Saadia Zia, and Syeda Sarnia Zia. However, the suit to the extent of Syeda Sadaf Zia and Syed Mohsan Zia was dismissed. The learned Additional District Judge, Mianwali further through a detailed scrutiny of evidence and attending the respective contentions raised on behalf of the petitioners while upholding the judgment and decree passed by the learned Family .Judge dismissed the appeal of the petitioner.

6. The learned counsel for the petitioner having questioned the maintainability of the suit in the Family Court at Isakhel has contended that the Family Court at Isakhel had no jurisdiction to entertain the suit and decide the same for want of territorial jurisdiction. He contended that undeniably respondent No.3 with their daughter was residing at Karachi before separation and after dissolution of marriage the said respondent with her daughters and son shifted in a separate house at Karachi belonging to the petitioner and thus the suit for the maintenance allowance on behalf of the minors who were permanently residing at Karachi was not maintainable at Isakhel. The learned counsel submitted that respondent No.3 in her statement before the Family Court has admitted that the minor daughters were studying at Karachi and she while living with her parents at Isakhel also used to visit Karachi occasionally. Learned counsel placing reliance on Rule 5 of the Family Court Rules, 1961 submitted that neither the respondents were permanently residing at Isakhel nor cause of action arose in their favour at Isakhel therefore the suit for maintenance being not maintainable at Isakhel the decree passed by the learned Judge Family Court and upheld by the learned Appellate Court was without jurisdiction. He next submitted that the petitioner being employed in P.I.A., Karachi was getting only a sum of Rs.6,000 per month as salary and was not in a position to separately maintain two families. The petitioner present in person states that he was always prepared to maintain his daughters but they refused to live with their step mother in joint family. He states that even now he is prepared to rehabilitate respondent No. 3 in the interest and welfare of his daughters. Learned counsel for the petitioner while taking various technical objections on merits submitted that the concurrent findings of the two Courts below being the result of misreading and non-reading of the evidence was not sustainable. Learned counsel representing the respondent conversely argued that' the minor daughters of petitioner being in custody of their mother (respondent No.3) who was residing with her parents at Isakhel could competently file suit for maintenance through her mother at Isakhel and notwithstanding the fact that her minor daughters while studying at Karachi were temporarily residing at Karachi would still be deemed to be living with their mother. He ;submitted that maintenance allowance of Rs.4,000 in toto per month has been granted to the three grown up girls and share of each girl would come to Rs.1,300 which is very meagre amount to maintain a school or college-going girl. The respondent No.3 in company of her young daughters present in Court states that they have no source of income to maintain themselves. Mohsan Zia son of the petitioner, the only male member in the family of respondent No.3 is also present in Court. He states that despite ailment he earns livelihood for his mother and sisters.

7. I have heard learned counsel for the parties at length and also gone through the evidence and the pleadings of the parties. This petition is still at motion stage as in the light of the contentions of the learned counsel for the petitioner relating to the jurisdiction of the Family Court at Isakhel to entertain the suit only a pre-admission notice was issued to the respondents. However, the same is disposed of as notice case. This is not denied that the girls were temporarily residing at Karachi in connection with their education and Mst. Anew Fatima after divorce shifted to the house of her parents at Isakhel but she while holding the custody of minor girls used to visit Karachi occasionally and stay with her daughters. The petitioner being employed in P.I.A. was also living at Karachi with his second wife. The territorial jurisdiction of Family Courts is governed by section 20, C.P.C. and in case the suit is filed in a wrong Court, the plaint shall be returned under Rule 5 of the Family Court Rules, 1965. The Rule in question provides as under:-- "Rule

5. Where a plaint is presented to a Court not having jurisdiction.--(a) The plaint shall be returned to be presented to the Court to which it should have been presented; (b) the Court returning the plaint shall endorse thereon the date of its presentation to it and its return, the name of the party presenting it, and a brief statement of the reasons therefore." Section 20, C.P.C. Other suits to be instituted where defendants reside or cause of action arises.--Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for (b) any of the defendants; where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation I.--Where a person has a permanent dwelling at one place and also at temporary residence at another place, he shall be deemed to reside at both places in respect of .any cause of action arising at the place where he has such temporary residence."

8. It is clear from section 20, C.P.C. that a plaintiff can file suit both at his/her permanent as well as temporary residence in respect of cause of action arising at his/her temporary residence. This is an admitted fact that respondent No.3 after divorce is permanently residing in the house of her parents at Isakhel and her daughters being in her custody despite living temporarily at Karachi in connection with their education would be deemed to be the permanent resident of the place of residence of her mother. The cause of action in the present case arose in favour of respondent No.3 as guardian of minor at Isakhel where she was residing permanently and thus the temporary residence of her daughters at Karachi would not affect the jurisdiction of Family Court at Isakhel to entertain the suit of maintenance on their behalf. The respondents would in the given situation invoke the jurisdiction either at Isakhel or at Karachi and both Courts having concurrent jurisdiction were competent to entertain the suit. Since respondent No.3 after dissolution of marriage was residing at Isakhel and the minors were in her custody therefore cause of action arose in their favour at Isakhel and their ordinary place of residence under the law would be at Isakhel therefore the suit filed at Isakhel did not suffer from the defect of territorial jurisdiction of the Family Court at Isakhel. Having gone through the evidence, I find that the petitioner has neither denied the right of maintenance of respondent nor claimed the payment of maintenance allowance to them. The petitioner has also not produced any evidence in rebuttal to the claim of respondents. The learned counsel for the petitioner has also not been able to point out any misreading or non-reading of evidence rendering the judgment and decree' illegal or to be interfered by this Court in its Constitutional jurisdiction. The petitioner being responsible to maintain her daughters cannot escape from his liability on technical objection of the territorial jurisdiction of Family Court. The petitioner also while taking the plea of poverty and weak financial position could not escape froth his liability and would not be, allowed to deprive them from their legitimate right of maintenance. The learned counsel for the petitioner has contended that presently only one daughter of the petitioner is minor whereas the remaining daughters having attained the age of majority were not entitled to any maintenance allowance. This is an admitted fact that respondent No.3 has not contracted second marriage and further she or her daughters have also no source of income and thus notwithstanding the attaining of majority by them unless the young girls are married, their maintenance in an Islamic society is the obligation and liability of the parents and therefore the petitioner cannot deny such liability. Section 370 of the Mohammadan Law provides as under:-- "

370. Maintenance of children and -grandchildren.--(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity of disease. The fact that the children are in the custody of their mother during their infancy (section 352) does not relieve the father from their obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property."

9. It may be observed that in case of male child on his attaining the age of majority, the father is not legally responsible for his maintenance but in case of a female, the parents despite attaining the age of majority by the female child are still responsible for her maintenance till she is not married. The young girl in Muslim society even after attaining majority cannot be deprived of their right of maintenance by their parents as they cannot lead an independent life and are always in need of protection of their parents. It may further be observed that generally it is possible for a young Muslim girl to enter into a marriage without the intervention of a ' Wali' .

10. For the foregoing reasons, this petition having no substance is accordingly dismissed. Q.M.H./M.A.K./Z-36/L Petition dismissed.