' Ex Parte proceedings are taken against Mansab Dar respondent, who as per process-server's report has refused service, and service upon him has been effected through affixation.
2. Marriage between the parties, Mst. Bakhat Shada petitioner No, 1 and Mansabdar respondent, was performed at a place in District Charsadda, N.-W.F.P. Nazia petitioner No,2 was born out of the wedlock and is in her mother's custody, presently putting up in Afghan Colony, Peshawar, as is pleaded. Differences between the spouses developed, with the result that the wife left her husband's house, whose residence has been stated as Nikka Pind, Tehsil Kharian, District Gujrat.
2. The petitioner has filed a suit against the respondent in a Family Court at Peshawar, seeking relief in the shape of (i) dissolution of marriage, (ii) recovery of dower and (iii) recovery of maintenance for the minor as also her mother. Subsequently, Mansab Dar respondent is said to have sued his wife for the relief of restitution of conjugal rights, and the case is pending before Mr. Iqbal Ahmad, Family Judge, Jhelum. The petitioners seek transfer of the suit pending in the Court at Jhelum to the Family Court at Peshawar. The request has not been resisted, owing to absence of the respondent.
3. As pronounced in Rohail Akhtar v. Gulistan Khan PLD 1981 Lahore 215, provisions of section 25(a) of the Family Courts Act, 1964 cannot be pressed into service, for securing transfer of a case from a Court subordinate to one High Court to a Court subordinate to a High Court of another Province, particularly as it is a provincial law, and especially when the afoiesaid Act does not contain any such provision. It is also so reflected by the plaint of the suit filed by Mst. Bakhat Shada against Mansab Dar (Annex. `A'). All the reliefs have been couched in one suit (aforesaid), although three or four suits were required to be instituted in a Family Court in Punjab for seeking these different reliefs.
4. There is an Article (186-A) in the Constitution of Islamic Republic of Pakistan, 1973, empowering the Supreme Court to transfer a case appeal, or proceedings of any other nature, pending in a High Court to any other High Court. On the same analogy, a suit pending in a Court subordinate to one High Court may be transferred to a Court subordinate to another High Court by the Supreme Court of Pakistan. Section 23(3), Civil Procedure Code, which is applicable to all the territories of Pakistan, however, envisages that for transfer of a case, an application shall be made to the High Court, within the local limits of jurisdiction of which the Court in which the suit is pending is situated. This provision, it seems, enables this Courts to order transfer of the suit for restitution of conjugal rights, pending in a Court subordinate to this High Court to a High Court of another Province. It will not be disputed that conflicting decisions in suits between the same parties (estranged spouses here) have to be avoided and consistency ensured. There is also no cavil with the proposition that in family matters convenience of the female litigant has to be kept in view, as the husband being a male may undergo certain amount of hardship. In Muhammad Ramzan v. Mst. Naseem Akhtar (PLD 1985 Lahore 404), it was laid down, in conformity with the statutory provisions of section 23(3), C.P.C., that transfer application would lie to the High Court, exercising superintendence over the Court, in which the suit sought to be transferred is pending. Following this principle, I would accept the prayer made by the petitioners, mother and her minor daughter, domiciled in N.-W.F.P. And presently putting up at Peshawar, for transfer of the suit for restitution of conjugal rights, with title Mansab Dar v. Mst. Bakhat Shada, pending before Mr. Iqbal Ahmad, Judge Family Court, Jhelum.
The case shall go to the learned District Judge, Peshawar, who shall pass it on to the Family Court concerned, seized of the family case brought against Mansab Dar by Mst. Bakhat Shada and Nazia.
A copy of this order shall be conveyed to the Family Court, Jhelum, as also to the learned District Judge, Peshawar for information and compliance. Record of the suit for restitution of conjugal rights shall immediately be remitted to the Court of D&SJ, Peshawar.