1985 PLP 2920 (CLC)

The petitioner has moved this Court under section 25-A of the West Pakistan Family Courts Act, 1964, for the transfer of a suit instituted by Ghulam Sarwar respondent against her in the Court of Sardar Farman All Khan, Judge Family Court, Bhakkar for a declaration that the petitioner is his legally wedded wife to the Court of Sheikh Muhammad Yousaf Judge Family Court, Faisalabad where her suit for jactitation of marriage filed against the respondent is pending. She has stated that it is necessary that both the suits be tried by one Court so that there may not be conflicting findings if the suits are decidedby the Courts separately. It is stated by the petitioner that she being a female, it would be difficult for her to go to Bhakkar to defend the suit instituted by the respondent and also fo pursue her suit if the same is transferred there. ?

2. The respondent has opposed the petitioner's prayer for transfer of the suit pending before the Family Court Judge at Bhakkar to Faisalabad. Learned counsel appearing on behalf of the respondent has contended that the suit for jactitation of marriage was instituted by the petitioner at Faisalabad after the respondent had instituted the declaratory suit against, her at Bhakkar. Petitioner's suit at Faisalabad cannot proceed in view of the provisions of section 10, C.P.C. as the matter in issue in the said suit is the same as in the suit instituted by him at Bhakkar. The respondent has already moved the Judge Family Court at Faisalabad to stay the proceedings in the suit instituted by the petitioner against him. Under these circumstances the question of transfer of the suit instituted by him at Bhakkar does not arise.

3. Learned counsel for the petitioner, on the other hand, has stated that the suit instituted by the petitioner at Faisalabad was in fact a suit for dissolution of marriage by exercising the right of option of puberty as even according to the respondent the alleged marriage with the petitioner had taken place at a time when she was minor. It is, therefore, necessary that the proceedings in the two suits should be consolidated to avoid conflicting decision in case of trial of the suits by two Courts. It has been further contended that the provisions of section 10, C.P.C. are not applicable as the matter. in issue in the two suits is not identical.

4. A perusal of the copy of the plaint in the suit instituted by the petitioner at Faisalabad, which has been filed alongwith the petition, reveals that she has sought a declaration to the effect that she is not the wife of the respondent and that no marriage.had taken place between her and the respondent. There is nothing in the plaint to show that she has sought an alternative relief in the form of dissolution of marriage by exercising the right of option of puberty. As in both the suits the matter in issue is whether the petitioner is the legally wedded wife of the respondent, the provisions of section 10, C.P.C. are attracted with the result that the Judge Court at Bhakkar can proceed with the suit instituted by the respondent before the filing of the suit by the petitioner at Faisalabad. Learned counsel for the respondent has also contended that the Judge Family Court, Faisalabad, has no jurisdiction to try the petitioner's suit as it is not a suit for dissolution of marriage or recovery of dower so as to bring it within the purview of the proviso to rule 6 of the Muslim Family Court Rules, 1965, under which the wife can institute a suit within the legal limits of Court where she ordinarily resides. According to the learned counsel the petitioner should have instituted the suit at Bhakkar within whose jurisdiction the parties reside and the cause of action has arisen. It is not necessary to determine the question of territorial jurisdiction of the Judge Family Court, Faisalabad, before whom the petitioner's suit for jactitation of marriage is pending, for the purpose of the disposal of the present petition. As the two suits instituted by the parties at different places p deal with the common question as to whether there exists any marital relationship between the parties and the provisions of section 10, C.P.C. are attracted, there is hardly any justification for the transfer of suits from one Court to another.

5. In view of trte facts and considerations noticed above, petition for transfer of the suit instituted by the respondent at Bhakkar to Faisalabad filed by the petitioner is dismissed with costs. H.B.T.????????????????????????????????????????????????????????????????????????? Transfer aplication dismissed.