P L D 1979 Supreme Court 864 (PLP)

‑‑ R. 6‑Suit‑Place of institution‑Wife subjected by husband to physical and mental torture, habitually treated with cruelty, turned out of house at S and consequently compelled to take refuge and shelter in her parent's house at‑M‑Wife living at M for over three years prior to institution of suit‑Ordinary place of residence of wife, in circumstances, held, M and not S and suit for dissolution of marriage and maintenance could be filed against husband at Muslim Family Laws Ordinance (VII of 1961), Ss. 7, 8 & 9. (Jurisdiction]. Ishtlaq Ahmad v. Second Additional District Judge, Sukkur P L D 1977 Kar. 733 ; Mahbub Ahmad v. First Additional District Judge and another P L D 1976 Kar. 978 and Muhammad Noor v. District Magistrate, Peshawar P L D 1970 S C 273 ref. M. Bilal, Advocate Supreme Court and Y. H. Zaidi, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing :‑25th April 1979. KARAM ELAHM CHAUBAN, J.‑Mst. Naheed Akhtar (hereinafter called the plaintiff) filed a suit for dissolution of marriage against the defendant/ petitioner inter alia on the grounds of habitual cruelty, non‑maintenance for a period of over three and a half years, and ill‑treatment. The suit was decreed by the learned civil Judge‑cum‑Judge, Family Court, Mansehra on 25 January 1979.

2. The defendant/petitioner filed a writ petition being Writ Peti tion No. 310 of 1979 but without any success as the same was dismissed by a learned Division Bench of the Peshawar‑.High Court on 8‑4‑1979.

3. The petitioner has come up in a petition for special leave against the same to this Court.

4. The first point argued by the learned counsel was that the Dissolution of Muslim Marriages Act VIII of 1939 was not applicable to Swat where marriage of the parties was solemnised and, therefore, neither that Act nor its principles will authorise dissolution of marriage on the grounds involved herein. The contention has no merit. Leaving aside the controvers of the strict applicability of Act VIII of 1939 open, it is a common ground, that the parties are Muslims and their marriage was solemnised undo Islamic laws. If this is so, then obviously the rules of Islamic Law will apply to this marriage irrespective of the fact as to where the marriage was solemnised. It is well settled, and is not disputed before us, that in such matters the Law applicable is the personal law of the parties, and, therefore, if the case is examined from that point of view, then under the Islamic Law, a wife is entitled to get her marriage dissolved if the husband was habitually cruel to her, or if he, without any fault on her part, deserts her, and fails to pay any maintenance to her. Though this is one of the grounds contained in the Dissolution of Muslim Marriages Act of 1939 also but as observed by S. A. Rahman, J., as his Lordship then was, in Muhammad Baksh v. The Crown Through Khuda Baksh and others (A I R 1950 Lab. 133). "Act VIII (8) of 1939 was passed merely to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under that law. This is expressly stated in the preamble to the Act . . . . . and does not profess to add to the provisions of Muslim Law . . . . ." Here, if we may add the "statement of objects and reasons of the Act as published in the Gazette of India, 1936, para. 5 page 154 also points to the same direction and similarly in Mst. Khurshid Bibi v. Muhammad Amin (P LM, 1967 S C 97) it was laid down that courts in Pakistan occupy position akin to Qazi and are competent to effect divorce on such grounds as are valid for dissolution of marriage under Muhammadan Law. In the instant case the reconciliation efforts of the Court failed to bring about any rapprochement between the parties, whereafter the Court proceeded to judicially determine the suit. The finding of the trial Court was that the husband has unjustifiably turned out the plaintiff from his house after beating her at a time when she was in a family way and that thereafter he paid no maintenance to her at all. It was further held that he never paid a single visit even just to see the son born from their wedlock and rather took up a second wife and completely ignored the plaintiff, and that he had been treating her throughout with habitual cruelty. In the evidence it was also brought on record' that the husband was of immoral character because earlier be was carrying on with the same woman whom he married immediately after turning the plaintiff out of his house. That the husband was really blameworthy is inter alia clear from the fact that in paragraph 4 of the plaint, the plaintiff pleaded of a son having been born out of their wedlock but the reply of the defendant in the corresponding paragraph of his written statement was that "it was incorrect." We asked the learned counsel as to what was the implication of this pleading. He submitted that it appears to be a mistake because the petitioner husband never disowned that child and according to his instructions, the grandfather and other relations etc. had been seeing that child off and on.

5. All this shows that the petitioner's attitude towards his wife ha rightly been found by the Court to be of habitual cruelty both physical and mental and that he was responsible for her desertion, and further, that he failed to provide a single penny for her maintenance and the maintenance of the newly born‑child for the long, period involved herein. This aspect of the matter is concluded by a finding of fact which is well supported b the evidence on record and thus called for no interference either by the High Court in its writ jurisdiction or by this Court in this petition for special leave to appeal. We hold accordingly.

6. The next point argued was that since the marriage was solemnised in Swat and the beating and turning out of the wife from the house of the husband defendant was also alleged to have taken place in Swat, therefore, the cause of action could be considered to have arisen only in Swat and from that point of view the institution of the suit in Mansehra was not justified especially when Manschra was not even otherwise the ordinary place of residence of the defendant husband. The contention has no merit. It was laid down in Mst. Fazlan Bibi v. Muhammad Azam (P L D 1952 Lab. 227) by S. A. Rehman, J., that a wife would be entitled to bring a suit for dissolution of marriage in the district of her residence if she established that she had been unjustifiably turned out of the house by her husband and was entitled to live apart and to be maintained by him where the resided. If it could be proved that conduct in living apart from the husband was justified and further that the husband bad failed to maintain her for two years prior to the institution of the suit, she could legitimately claim dissolution of marriage from the Courts in the District of her residence as the part of the cause of action would in that case be deemed to arise within the district where she bad taken up residence. The facts of the present case amply fulfil the requirements of the above principle and a it was due to the blameworthy conduct of the husband himself that his wife had to take shelter and refuge in the house of her parents at Mansehm, where again the husband failed to remit any maintenance to her, the cause of action in that respect did arise in Mansehra and as such a suit for the dissolution of marriage could rightly be instituted at that place. Even otherwise under rule 6 of the West Pakistan Family Courts Rules, 1965 framed under the West Family Courts Act, XXXV of 1964 which o was applicable in that area, a wife could file such a suit at her ordinary place of residence which in the instant case, according to the peculiar facts and circumstances highlighted above, was Mansehra where she had been living with her parents for over three years, prior to the institution of the suit, due to unwarranted and illegal desertion by her husband. See Ishtlaq Ahmad v. Second Additional District Judge, Sukkur (P L D 1977 Kar. 733) and Mahbub Ahmad v. First Additional District Judge and another (P L D 1976 Kar. 978) which correctly interpret the phrase "ordinarily resides" as occurring in, the "proviso" to the aforesaid Rule by referring to general principles on the subject as enunciated by this Court in Muhammad Noor v. District Magistrate, Peshawar (P L D 1970 S C 273).

7. The result is that this petition has no merit and is dismissed. S. A. H. Petition dismissed.