A. R. SHEIKH, J.--This judgment will dispose of two writ petitions (being Writ Petitions Nos, 325 of 1970 and 232 of 1971) arising out of a suit for recovery of Rs, 7,000.00 filed by Mst. Tahira Begum against her husband, Ch. Mati Ullah, on account o dower money (Rs, 4,000.00) and maintenance for fifteen months at the rate of Rs, 200.00 per mensem (Rs, 3,000.00).
2. Briefly stated the facts are that the spouses were married at Lahore on the 9th of December 1962 and according to the Nikahnama, Exh. P. 1, the dower money wasfixed at Rs, 4,000.00. It may be mentioned that although the claim is for deferred dower money, the two columns, namely, moijjal and ghair moijjal, have been left blank in Exh. P.
1. Chaudhri Mati Ullah belongs to Narowal, while Mst.
Tahira Begum hails from Lahore, and after marriage the spouses lived at Narowal, where Ch. Mati Ullah is practising as a lawyer. Differences having arisen between the parties, the wife was divorced in June 1964, which divorce became effective in September 1964. It may incidentally be mentioned that the notice of divorce was sent by the husband to the wife at Lahore through the Union Council of the area, where Mst. Tahira Begum lives. The suit was resisted on the grounds that the Family Court at Lahore had no jurisdiction to entertain the suit, the suit was time-barred, the suit was bad for misjoinder of causes of action and the dower amount had been paid, with the further plea that arrears of maintenance were not legally recoverable. The learned Family Court while rejecting the plea of payment has decreed the suit for dower. However, as regards maintenance, the Family Court Judge held that jurisdiction of the Family Court at Lahore was barred, as no cause of action had accrued to the wife at Lahore. Feeling aggrieved both the parties filed separate appeals which have been dismissed by the learned Additional District Judge, which judgments are impugned in these two writ petitions.
3. On behalf of the wife (petitioner in Writ Petition No, 325 of 1970) it has been contended that because the spouses were married at Lahore and on her being turned out of the house of the husband at Narowal, she had to take refuge at Lahore in the house of her parents till the time she was divorced at Lahore and during the period of her Iddat she also remained at Lahore, the finding of the Courts below as to absence of territorial jurisdiction is legally incorrect and it is a case of refusal of exercise of jurisdiction. In support of his contention learned counsel has referred to rule 6 of the West Pakistan Family Courts Rules, 1965 (hereinafter called the Rules), which Rule reads as under :-- "The Court which shall have jurisdiction to try a suit will be that within the local limits of which -- (a)the cause of action wholly or in part has arisen, or (b)where the parties reside or last resided together : Provided that in suit for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction."
It is maintained that under Muhammadan Law, a husband is bound to maintain the wife during Iddat and as admittedly she has been living at Lahore after divorce a part of cause of action accrued to her at Lahore for her claim for maintenance and for that reason alone the suit for maintenance was entertain-able at Lahore under clause (a) of rule 6. It is argued on behalf of the husband that while keeping intact the principle of bringing a suit where the cause of action wholly or in part has arisen in clause (a) unlike the general principle of bringing the suit where the defendant resides, clause (b) has restricted it to the place where the parties reside or last resided.
The proviso to the Rule, according to him, makes exemption only to the extent indicated therein and no more, i,e,, permitting the wife to bring the suit for dissolution of marriage and dower in a Court within the local limits of which she ordinarily resides. The suit for maintenance, it is contended, does not fall within the proviso. The spouses do not reside at Lahore, nor have they last resided at Lahore and, therefore, clause (b) is also not attracted. As for clause (a), it is argued, that the same is not applicable because the wife having refused to live with the husband was not entitled to any maintenance and her living at Lahore for that period would not clothe her with the right of bringing a suit at Lahore. For maintenance during the period of Iddat, counsel argues that the suit for three months at best could be entertained at Lahore but not for the entire period of fifteen months.
4. In Muslim Law it is the duty of the husband to maintain his wife. She is not entitled to maintenance when she refuses to go to her husband's house without sufficient cause or is otherwise disobedient. However, if the refusal or disobedience is justified by non-payment of prompt dower or she leaves the husband's house on account of his cruelty, the husband is not absolved of the duty to maintain the wife because separate maintenance can be claimed by the wife when the husband has turned her out or the treatment or misunderstanding between them is such that it is irremediable and her return to the husband's house is likely to give rise to fresh troubles and disputes. The question that falls for determination is that if the husband refuses to maintain, where does the suit lie ? Ordinarily the wife can bring an action at a place where the parties reside or last resided under clause (b) of Rule 6 or where the cause of action wholly or in part has arisen under clause (a) of said Rule. Now what is the cause of action that gives rise to that action ? The expression "cause of action" means the bundle of facts which is necessary to be proved to entitle the plaintiff to a decree. Again, the bundle of facts which constitute the cause of action does not and is not intended to comprise every fact which may be proved in evidence. It is only material facts which must be proved by the plaintiff before he can obtain a decree that constitute the cause of action. Facts which the plaintiff may allege incidentally and facts which may be brought in evidence as res gestae would not primarily constitute a part of cause of action.
Further, the cause of action refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion. In a suit for maintenance, the primary allegation that is required to be made in the plaint is that the parties were married. The maintenance is asked on the basis of the relationship of husband and wife, and marriage is therefore, a fact which requires to be proved before the other facts, that may be alleged in the plaint as to how and under what circumstances and in which event the wife had become entitled to be separately maintained. It is, therefore, the primary fact that has to be alleged and proved. The fact of marriage would, therefore, form part of the cause of action and the place of marriage where part of the cause of action arises would also be a place where the suit could be instituted. On parity of reasoning, their Lordships of the Calcutta High Court held in Zamiran v. Fateh Ali that a suit for dower at a place where the marriage as well as the divorce took place irrespective of the fact that the defendant-husband worked and resided at another place had been properly filed. Similarly, in a suit for restitution of conjugal rights, the mere fact that the plaintiff has his home within jurisdiction is sufficient to give the Court jurisdiction as the husband is entitled to require the wife to live in his house and the breach without lawful cause of the duty of the wife to reside with her husband is the cause of action in such a case. In the instant case not only the marriage was solemnized at Lahore, but also the wife when deserted came to live at Lahore and continued to live at Lahore during the Iddat period and since a deserted wife could claim maintenance anywhere in the realm where she lives (Mst. Fazlan Bibi v.
Muhammad Azam , the suit as filed at Lahore for the entire period, i,e, before divorce and Iddat period, was entertainable by the Lahore Court as per provisions of rule 6(a).
5. It may, however, be further observed that if the Judge Family Court had found that he had no jurisdiction in respect of the claim for maintenance, he should not have dismissed that part of the claim and instead the proper course was to return the plaint for presentation to the proper Court, as provided by rule 5.
6. For the reasons above, Writ Petition No, 325 of 1970 is allowed with costs and the case will now go back to the Family Court at Lahore for decision of the claim for maintenance on merits.
7. The writ petition (No, 232 of 1971) of the husband can be disposed of by saying that the argument raised therein, that the Courts below have erred in holding that the dower money had not been paid by the husband to the wife is incorrect, cannot be successfully canvassed in writ jurisdiction.
The contention that certain cheques, which had been got produced by the husband through a clerk of the Bank, on which Bank the same had been drawn by the husband, and on the reverse of which cheques the signatures of the wife Mst. Tahira Begum appeared, have been disregarded is without substance because if the husband wanted to establish the plea of payment of the dower money, the cheques could have been summoned at an earlier stage and the wife confronted with her signatures, when she was in the witness-box. This was admittedly not done. Even at the time when the cheques were got produced through a bank clerk, the husband could have asked the Court to have the same retained on the record and then confront Mst. Tahira Begum with her alleged signatures on the reverse of those documents and in case of denial to have the same compared with the admitted signatures through a Handwriting Expert. This has not been done.
Further, although the cheques are shown to have been issued in the name of Mst. Tahira Begum and the said payee is also stated to have signed the cheques on reverse, the very fact that the cheque amounts were collected from the Bank by Murad Ali (a domestic servant of the husband), whose thumb-impressions on the reverse of these cheques have not been denied, is indicative of the correctness of the plea taken by Mst. Tahira Begum that the cheques were never encashed by her and she did not receive the cheque amounts and all this was merely a camouflage. Be that as it may, as this Court is chary of entering into reappraisal of evidence and going into disputed questions of fact, we are not persuaded to interfere in writ jurisdiction. In the result, Writ Petition No, 232 of 1971 fails and is dismissed with costs.1 2