2008 PLP 850 (CLC)

SYED ASGHAR HAIDER, J.

This petition is directed against the order, dated 9-5-2006 passed by the Family Court, Sahiwal wherein an application made by the petitioner for the return of plaint was dismissed.

2. The facts giving rise to this petition are that the respondent No.2 filed suit for dissolution of marriage. The petitioner filed written statement and objected to jurisdiction and thereafter moved an application under sections 5 and 6 of the West Pakistan Family Courts Act, 1964, for the return of plaint pleading that the respondent is a resident of Lahore and therefore, the Family Court at Sahiwal has no territorial jurisdiction to entertain the suit.

3. Respondent No.2 contested this application; after hearing the arguments the learned Family Judge, dismissed the application, hence the present petition.

4. The learned counsel for the petitioner has contended that the impugned order suffers from material illegality as it has been passed against the provisions of sections 5 and 6 of the West Pakistan Family Courts Act, 1964 and he relied upon the following judgments 1985 CLC 759 titled Nusrat Bibi v. The District Judge, Lahore and another, 2002 CLC 1744 titled Hasham Sadaruddin Gangji v. 2nd Additional District Judge (South), Karachi and others PLD 2001 Lah. 188 titled Syed Zia -ul-Hassan Gilani v. Mian Khadim Hussain and 7 others, PLD 2000 Pesh. 70 titled Nazir Muhammad v. Mst. Shah Zarina and 3 others, 1982 CLC 7 titled Irfana Pal v. Javed Akhtar and 1996 CLC 632 titled Kaneez Bibi v. Sooba.

5. The learned counsel for the respondent vigorously defended the impugned order and submitted that the order is in consonance with law and the scheme of sections 5 and 6 of the West Pakistan Family Courts Act, 1964.

6. I have heard both the learned counsel and perused the record.

7. It is an admitted fact that Nikah was performed in Sahiwal and both petitioner and respondent are permanent residents of Sahiwal, according to Nikahnama (the address of the petitioner and respondent No.2 appears and clearly reflects this position). The address in the plaint filed also reflects this position. The Family Act, 1964 and rules framed therein under are a special law. According to the language used in West Pakistan Family Court Rules, 1965, Rule 6 of the said Rules, the Court normally having the jurisdiction would be where the cause of action wholly or in part has arisen or where the parties reside or last resided together. However, there is an exception to this rule and a proviso has been added, according to which in suits for dissolution of marriage or dower, the jurisdiction would also vest with a Court where the wife ordinarily resides, thus, these Courts have been given additional jurisdiction as the words used are "shall also have jurisdiction". So it is clear and explicit that the intention of the legislature is to facilitate things for the wife and off-set her handicap of travel etc. Therefore, the option of filing such suits vests with the wife and the Court is bound to take her convenience into account. Every case has its own features, territorial jurisdiction has to be determined in accordance with law, keeping the convenience of parties in mind. In the present case, there is ample material to substantiate and support the respondent's view point, unless condemning and inconvertible evidence is brought on record otherwise, it would be in fairness of things to permit the wife to choose the Court of her choice subject to the limitation imposed by law. The law cited by the learned counsel for the petitioner is distinguishable on facts, there is no illegality in the impugned order. Resultantly, this petition has no merits and is dismissed. H.B.T./Z-6/L petition dismissed.