MIAN SHAHID IQBAL, J.---Learned counsel for the petitioner submits that petitioner filed a suit for restitution of conjugal rights on 11-1-2010, thereafter respondent No,2 filed a suit for dissolution of marriage, recovery of dowry articles along with maintenance on 10-2-2010, petitioner appeared on 22-3-2010 and during the course of proceedings he made an application before the trial Court that plaint of respondent No,2 to the extent of dissolution of marriage be rejected.
2. After reply to the said application the learned trial Court on 2-7-2010 dismissed the application which order has now been impugned in the writ petition.
3. Learned counsel submits that the learned trial Court while dismissing application of the petitioner had wrongly held that respondent No,2 could file a separate suit for dissolution of marriage, recovery of dowry articles and maintenance. The submission of the learned counsel was that as the suit for restitution of conjugal rights was filed prior in time, notice was affected on respondent No,2, as such it was incumbent upon her to have raised all claims if any through the written statement and especially on the basis of Khula. In absence of that she could not B agitate her claim through separate suit in view of provisions of section 9(1)(b) of the West Pakistan Family Courts Act, 1964. In support of his submissions learned counsel relied upon Ahmad Hassan v. Judge Family Court and another (2006 CLC 1178) and Mst. Kausar Jabeen v. Additional District Judge and another (2006 CLC 1185).
4. Learned counsel for respondent No,2 while interpreting the provisions of section 9(1)(b) of the West Pakistan Family Courts Act, 1964 submits that the intention of law was, that in case a suit for restitution of conjugal rights is filed earlier and the respondent lady opts to raise claim in the written statement she could do so, but the same does not bar the respondent No,2 from filing a separate suit as in the opening part of the said subsection the word "may" has been used which gives an option to lady to either raise objections in the suit for restitution of conjugal rights or file a separate suit. The learned counsel for the respondent No,2 while arguing the case has fully defended order of trial Court thereby justifying the said order by submitting that as respondent No,2 did not opt to raise claim in the suit for restitution of conjugal rights while filing written statement regarding dissolution of marriage, does not bar her to file a separate suit, as such she was fully justified under the law to have filed a suit as provided under the schedule of the West Pakistan Family Courts Act, 1964.
5. Learned counsel further submits that the judgments relied upon by the learned counsel for petitioner do not bar of filing a separate suit, it only provides the respondent No,2 with an option while filing the written statement either to raise her claim for dissolution of marriage in the said written statement or in the alternate respondent No,2 can institute a separate suit, in which the respondent No,2 can make claim of her right of dissolution of marriage through written statement filed in the suit for restitution of conjugal rights, then she would be barred to re-agitate the same through the institution of a separate suit and her claim of dissolution of marriage would be considered in the said written statement as if she has filed a suit on the said basis.
6. I have considered arguments of learned counsel for the parties and have gone through the judgments referred by learned counsel for petitioner.
7. In one of the judgments the facts of case were that during trial in the suit for restitution of conjugal rights when things were to conclude the petitioner who happened to be husband of respondent moved an application to the effect that he would like to withdraw suit in order to injure the respondent as well as to delay the proceedings so that things may not be concluded in the said suit where in the written statement lady had claimed for dissolution of marriage and recovery of maintenance. The learned court while allowing the application passed an order thereby holding that written statement should be considered as a plaint which was basic intention behind the said law. As such, instant case on its facts would not apply for the reason that in the present case petitioner moved an application that plaint of respondent No,2 to extent of dissolution of marriage in the suit separately filed by her may be rejected, as the respondent No,2 did not opt to agitate or to make claim of dissolution of marriage in the suit for restitution of conjugal rights where she appeared earlier. This interpretation of the learned counsel for petitioner may not be successful in the given circumstances.
8. The opening part of section 9(1)(b) of West Pakistan Family Courts Act, 1964 is reproduced as under:-- "(lb) A defendant wife may, in the written statement to a suit for restitution of conjugal rights, make a claim for dissolution of marriage including khula which shall be deemed as a plaint and no separate suit shall lie for it."
' Uses the word "may" thereby giving option to person to do or not to do thing. Moreover, closing part of the said section narrates as "which shall be deemed as a plaint and no separate suit shall lie for it". A bare reading of law would explain and convey meanings that in case respondent No,2 makes a claim in an earlier suit filed by husband then subsequently she would be stopped from raising her claim in a separate suit, whereas in the instant suit it is not so. This interpretation of section can also be viewed from another angle where under Order VIII, Rule 6 C.P.C. Parties are allowed to raise their claim of setoff in the said suit, so that firstly they are not subjected to multiple litigation. Moreover, on the basis of said setoff they can easily lessen their expenses so the only intention which can be drawn out from section 9(1)(b) of the West Pakistan Family Courts Act, 1964 is that the said section has been introduced in order to enable the respondent No,2 to raise her claim in written statement in order to enable her to shoulder off her expenses but also to shorten her agony which a party has to undergo during all the process of litigation.
9. So in my view the only interpretation which the section 9(1)(b) can give is that once a party opts to file her claim through written statement she would be debarred from subsequently agitating the same through another suit and if they do not claim through, then the said party has every right to file an independent suit as provided to the schedule of the West Pakistan Family Courts Act, 1964.
With this observation this writ petition is dismissed without orders as to costs.