P L D 2000 Peshawar 70 (PLP)

S. Abdul Bar Sherazi for Respondents. Date of hearing: 10th March, 2000. This application under section 25‑A of the West Pakistan Family Court Act, 1964 for transfer of family suit filed by Mst. Shah Zarina respondent and which is pending in the Court of Family Judge, Batagram to the Court of learned Judge Family Court, Mansehra. District Mansehra where his suit bearing No.29/FC filed by him for the restitution of conjugal right is pending. Notices were issued to the respondents, who attended the Court duly represented by the counsel. 2. The main contention of the learned counsel for the petitioner is that the Nikah has been performed in Kotli Bala, District Mansehra and where both the patties also reside and which is within the jurisdiction of Judge Family Court at Mansehra. The petitioner's forefathers originally belonged to District Batagram but due to some enmity in the village his forefathers left abode al Batagram and settled at Kotli Bala, District Manshera since long. The respondent has instituted the suit in the Court of District Batagram only with the object to obtain an ex parte decree as the petitioner would not be able to attend that Court to view of his enmity in the Illaqa. 3. The submission was controverted by the learned counsel for the respondents by 'contending that the respondent‑wife is residing with her maternal uncle Qabal Khan resident of Tarang Tingi, Police Station Kooza Banda, District Batagram. 4. Since the case involved a dispute over the residence of respondent Mst. Shah Zarina as to whether at present she is living in her parents' house with her brothers and mother at Kotli Bala District Mansehra. where the petitioner also resides or she resides in Tarang. District Batagram with said Qabal Khan, stated to be her maternal uncle. Both the parties have filed affidavits alleging their view‑points on the question of residence of Mst Shah Zaritia. In the plaint filed by Mst. Shah Zarina, her permanent address has been shown as Kotli Bala (District Mansehra) and her present address at Tarang, District Batagram. In para.3 of the plaint she has mentioned that she is residing with her real maternal uncle Qabal Khan at Tarang but in the affidavit filed by Qabal Khan he described himself as cousin of mother of Mst. Zarina, which is a wide term susceptible to various interpretations. The main plea of her living with Qabal Khan was that she was not allowed to institute the instant suit against the petitioner by her brother and parents but today her two brothers have attended the Court and eldest one has categorically stated that it is up to the respondent Mst. Shah Zarina if she wishes she can decide for herself to allow her Rukhsati, as the same has not taken place, or not and it is up to her to institute a suit or not. Hence her this plea that her parents/brothers are reluctant to allow her to prosecute such type of suit(s) i.e. for the dissolution of marriage, has been negated by her brother present in the Court and has come with her. Qabal Khan is also not her real maternal uncle unlike stated by her in the plaint. The summon/notice issued by this Court in pursuance of the instant transfer applications were served upon her on her address at Koth Bala, District Mansehra. 5. All the abovementioned facts indicate that the suit filed by the respondent at Batagram was with the object to harass the petitioner as he would not be able to prosecute the suit filed by her at Batagram due to his ill will with some other inhabitants of the Illaqa due to certain litigation which took place between his elders and the people of the Illaqa and thus the respondent would be able to get an ex parte decree. Reliance is placed on a case "Kaneez Bibi v. Sooba" 1996 CLC 632. 'It was also stated at the bar by the learned counsel for the petitioner that the distance of the Court at Batagram from Kotli Bala is more than 40 k.m. while the distance to the Courts at Mansehra is 26 kilometres which fact except with a little variation ' was not contested. Qabal Khan who was present today. in Court has continuously intervened, when some questions were put to the brother of the respondent, in order to avoid the true answer to be given by him and seems more interested in the instant litigation who is not close relative of the respondent as alleged by her. 6. In the light of the above discussion I feel satisfied that the apprehensions of the petitioner with regard to the obtaining of ex parte decree by the respondent are genuine and the pretext excavated by the respondent for the institution of the suit in a Court other than the one within whose jurisdiction she resides i.e. District Mensehra is a baseless one. 7. Resultantly the application is accepted and it is directed that the suit filed by the respondent and pending before the Judge Family Court at Batagram be transferred to the Court at District Mansehra, where the already instituted suit of the petitioner is pending. The parties present in Court are directed to appear before the Judge Family Court at Mansehra on 16‑3‑2000, the date already fixed in the suit, as stated. Q.M.H./M.A.K./54/P Application allowed.