SH. HAKIM ALI, J.--- Facts as narrated by the learned counsel for the petitioner, stated in the writ petition and found from the record, are that Mst. Kausar Jabeen, the writ petitioner had filed a suit for recovery of dower against Muhammad Akmal, respondent No.2 on 20-8-2002. A second suit was filed by her for recovery of maintenance allowance on 7-1-2003 and third suit was filed by her for recovery of dowry articles on 19-7-2003. All these suits were consolidated and were being proceeded against Muhammad Akmal, respondent No.2, when a suit for restitution of conjugal rights was filed on 26-3-2005 by Muhammad Akmal, respondent No.2 before the learned Judge Family Court, Ahmadpur East. An objection was raised by the petitioner qua the maintainability of that suit for restitution of conjugal rights before the learned Judge Family Court by filing an application that the suit could not be instituted in the presence of barring provision of section 9 subsection (1)(a) of the West Pakistan Family Courts Act, 1964. Learned Judge Family Court accepted the application and rejected the plaint for restitution of conjugal rights on 29-4-2005.
Aggrieved from that rejection of plaint order, an appeal was filed before the learned Additional District Judge, Ahmadpur East, which was accepted on 25-10-2005. Hence, this writ petition.
2. Learned counsel for the writ petitioner submits that in the presence of suit for recovery of maintenance allowance, filed on 7-1-2003, separate suit for restitution of conjugal rights could not be filed by respondent No.2, Muhammad Akmal due to bar created by subsection (1)(a) of section 9 of the West Pakistan Family Courts Act, 1964. It has also been argued by the learned counsel that present suit for restitution of conjugal rights was a move to make ineffective the orders passed in the earlier suits, by which the writ petitioner was not allowed 10 produce additional evidence. The suit for restitution of conjugal rights was filed separately to make ineffective that order. It has further been stated by the learned counsel that in all 'the consolidated-suits, the plea for restitution of conjugal rights was already raised by respondent No.2 and an issue for that purpose was also framed by the aforesaid learned Judge Family Court. Therefore, the suit for restitution of conjugal rights filed by respondent No.2 on 24-3-2005 was not competent.
3. Refuting the arguments, learned counsel appearing on behalf of respondent No.2 submits that the writ petitioner, during the pendency of the above noted suits had come to reside in the house of respondent No.2. Therefore, there was no occasion or opportunity to file a suit for restitution of conjugal rights. The suit for restitution of conjugal rights was, hence, competent.
4. After considering the arguments of both the learned counsel and from the perusal of the record, I have noted that subsection (1a) of section 9 of the West Pakistan Family Courts Act, 1964 has clearly and in unequivocal terms barred the filing of a suit for restitution of conjugal rights when a suit for dissolution of marriage or for recovery of maintenance allowance was pending. To appreciate it, section 9 subsection (]a) of the West Pakistan Family Courts Act, 1964 is reproduced as follows: "(la) A defendant husband may, where no earlier suit for restitution of conjugal rights is pending, claim for a decree of restitution of conjugal rights in his written statement to a suit for dissolution of marriage or maintenance, which shall be deemed as a plaint and no separate suit shall lie for it."
4-A. The aforesaid subsection has granted right to the defendant/ husband to raise the plea of restitution of conjugal rights in his written statement and no separate suit can be filed by him.
Therefore, this provision which had barred the institution of suit for restitution of conjugal rights was very much applicable, to the facts and circumstances of this case and the separate suit could not be filed by respondent No.2. Learned Judge Family Court had rightly rejected the plaint. It is wroth mentioning that plea for restitution of conjugal rights was already raised by respondent No.2 in the written statement of consolidated suits and an issue was also framed by the learned Judge Family Court in those consolidated suits. On this count even, the suit for restitution of conjugal rights was not maintainable. It can clearly be held as abuse of process of law. Therefore, by accepting this writ petition, the impugned order/ judgment passed by the learned Additional District Judge is declared to be illegal, unlawful and without lawful authority, so is set aside while that of learned Judge Family Court is restored and maintained. Consequently, the plaint of the suit for restitution, of conjugal rights shall be deemed to have been rejected. Parties to hear their own costs.