1987 PLP 1389 (CLC)

Muhammad Afzal Bhatti for Respondent. Date of hearing: 24th March, 1987. Mst. Shahnaz Bibi is wife of the respondent, Muhammad Zaheer Kamal. She has made this petition for transfer of a suit for restitution of conjugal rights brought against her by the respondent. That suit is pending before a Family Court of Sargodha. On the other hand, the petitioner has filed a suit for dissolution of marriage, against the respondent, which is being heard by Kh. M. Zafar Iqbal, Judge, Family Court, Multan. The petitioner has prayed that the respondent's suit may be transferred to the said Court at Multan.

2. In view of the nature of the two suits, common questions of law and fact are likely to arise therein. Conflicting findings on such questions can be avoided if both the suits are heard and decided by one and the same Court. Further, if the two suits are allowed to be heard by the Courts now seized of them, the petitioner will have to go to Sargodha to defend the suit brought by the respondent and the latter will have to visit Multan to resist the suit instituted by the former. It is, therefore, my desire that one of the parties should be saved of the bother and expense to which she/he would be put for going to a place other than the place of her/his residence to contest the suit against her/him. Which of the two parties should be helped in this regard is the question which now falls for consideration.

3. The petitioner is a female but the respondent is a male. Petitioner also apprehends trouble at the hands of the respondent in the event of her going to Sargodha to defend the suit brought against her. Her affidavit in this regard has not been rebutted by the respondent by filing a counter‑affidavit. In view of all this, it was submitted by learned counsel for the petitioner that she deserved to be accommodated in preference to the respondent.

4. On the other hand, it was contended by learned counsel for the respondent that the respondent was living abroad and his suit at Sargodha was being prosecuted by his sick and aged father as his attorney, the same may not be transferred from Sargodha. In this connection, he invited my attention to Shahamad Baig v. Munawar Sultan 1980 C L C 351.

5. In the cited case, I had declined to transfer the husband's suit because he suffered from a physical disability, namely, lack of vision. It is not the case of the respondent that he is a disabled person. If his absence from the country is treated as a disability, it is as much there in the case of Sargodha, where his suit is pending, as in the case of Multan, where he has been sued by the petitioner. As for the advanced age and infirmity of his father, it can hardly be treated as physical disability of the respondent. If the respondent has initiated litigation by filing suit against the petitioner it is his headache to make appropriate arrangement for pursuing the same at Sargodha or elsewhere. If a party is allowed to have an edge over the other, in the matter of the transfer of a suit, by appointing a disabled person as his attorney, it will, in my humble opinion, amount to laying down a bad precedent. Needless to say that it will not be difficult for a party to get hold of an old and infirm person, whether related to him or not, and appoint him as an attorney for causing harassment to the opposite party by seeking transfer of suit appropriately brought bi the latter at a place which is not of the liking of the former. Keeping all this in view I would not allow the respondent to make capital out of the advanced age and indisposition of his father.

6. In result, I find no good reason for making departure from the normal rule for transfer of cases involving matrimonial disputes, namely, that more weight should be given to convenience of the female party than to the convenience of the male party. I, therefore, accept this petition and transfer the respondent's suit from the Court of Family Judge, Sargodha, to the Court of Family Judge, Multan, which is trying the petitioner's suit for dissolution of marriage. There shall be no order as to costs. M . B . A . /S‑40/ L???????????????????????????????????????? Petition accepted.