P L D 1977 Lahore 458 (PLP)

Date of hearing : 3rd June 1976. A husband has through this Writ Petition called in question order passed under section 9 of the Muslim Family Laws Ordinance, 1961; whereby the respondent (wife) was granted maintenance allowance. I had admitted the Writ Petition to consider the question whether the Union Council, Jand Mehlu had territorial jurisdiction notwithstanding the fact that the respondent had, when filing the application, mentioned her residence at Wah Cant-falling within territorial limits of another local council.

3. Rule 3(c) of the West Pakistan Rules under Muslim Family Laws Ordinance, 1961 reads as follows :- "(3) The Union Council which shall have jurisdiction in the matter for purpose of clause (d) of section 2, shall be as follows, namely :- (a) (b) (c) in the case of an application for maintenance under section 9, it shall be the Union Council of the Union or Town in which the wife is residing at the time of her making the application, and where application under that section is made by more than one wife, it shall be the Union Council of the Union or Town in which the wife who makes the application first, is residing at the time of her making the application."

4. Learned counsel for the petitioner relying on the above-quoted rule has raised the contention that the respondent when filing the application (copy Annexure 'B') specifically mentioned her residence at Wah Cantt; therefore, the Chairman, Union Council, land Mehlu could not entertain it. He also relied on the address of the respondent given by the petitioner in a suit filed by him for restitution of conjugal rights-at Wah Cantt. Moreover, he produced the Nikahnama, wherefrom it appears that at the time of marriage the parents of the respondent were residing at Wah Cantt. Learned counsel for the respondent relied on the statement made by the petitioner before the Union Council wherein he specifically stated that the respondent was resident of Jand Mehlu, though he had also stated that her family was residing at Wah Cantt. for the last 15 years. He also relied on the contents of the impugned order wherein it is mentioned that the respondent was resident of Jand Mehlu (Annexure 'C'~. Not only this, he also relied on the address given by the petitioner of the respondent when filing a revision petition in this very cast before the Controlling Authority. He had specifically mentioned that the respondent was resident of village Jand Mehlu, though he gave her address as "at present Quarter No. 6-SV/3 Wah Cantt". He further contended that neither before the Union Council nor during the revisional stage the petitioner raised the question of territorial jurisdiction. Relying on this aspect of the petitioner's conduct, it was argued by him that there was no basis in the contention now being raised and thus, it was an afterthought.

5. No doubt the above-quoted rule confers jurisdiction on that local council where the wife resided at the time of making the application. Residence has not been defined in the rules. However, keeping in view the A context, it would mean permanent and/or ordinary and not casual residence. In this case the members of the Arbitration Council, who belong to the locality and would be presumed to have known both the parties, mentioned in the impugned order that the respondent was resident of Jand Mehlu. This is so mentioned in the formal particulars of the parties as also in the body of the order. They further noted that the petitioner was also s resident of Jand Mehlu. The question being that of fact, the above-noted observation/statement of the Arbitration Council in the impugned order cannot be lightly brushed aside.

6. If the above circumstance is kept in view, all the points raised from the petitioner's side, get explained. The respondent when at the time of making the application, gave her residence at Jand Mehlu but in all probability for purpose of address mentioned her casual residence at Wah Cantt. This assumption is fully supported by the position taken by the petitioner himself in his revision (Annexure 'E'), wherein he gave Jand Mehlu as residence of the respondent and for purpose of her address mentioned Wah Cantt. with the pre-fix "at present". The address given by the petitioner of the respondent in his suit for restitution of conjugal rights probably was not correct. That is why, as argued by the learned counsel for the respondent, she was not served and consequently an ex pane decree was passed against her. The residence of the parents of the respondent at Wah Cantt. during 1972, at the time of the Nikah of the parties or the averments made in the petitioners own deposition that they used to reside at Wah Cantt., does not mean that after the marriage, the ordinary residence of the respondent remained the same as that of her brother, who, it is stated, is residing at Wah Cantt. The parties originally, it is further stated, come from land Mehlu. In the light of the above discussion, it is clear that the residence of the respondent at the time when she made the application for maintenance was Jand Mehlu, though she was then at Wah Cantt. on casual visit and that is why she gave her address with reference to that visit/casual, residence at Wah Cantt. The scribe used the word "REHAISH " for this purpose as distinguished from SKONAT conveying ordinary residence. .

7. Even if it was not possible to give the above finding, the petitioner would not have been entitled to any relief in discretionary jurisdiction of this Court. He did not raise this point (which needed factual enquiry) before the Arbitration Council, nor did he take and urge the same during revisional proceedings before the Controlling Authority. It is an after thought. Be that as it may, the petitioner on account of his own conduct, is not entitled to any relief in writ jurisdiction of this Court. This petition accordingly is dismissed. There shall be no order as to costs.

8. It may be noted that through an interim order passed on 19-4-1976, the recovery proceedings were stayed, subject. to the petitioner furnishing bonds and sureties to pay the amount of maintenance ordered by the Arbitration Council, within ten days of the final disposal of the writ petition, in case it ultimately failed. The petition has failed. The stay order consequently, in view of the above reason, is recalled. S. A. H. Petition dismissed.