' MUHAMMAD HALEEM, J.-This petition calls in question the entertainment - of Family Suit No, 115 of 1973 for dissolution of marriage filed on 11th January 1973 in the Family Court (XXII Civil Judge), Karachi.
2. The undisputed facts necessary for the decision of the petition, are that the marriage of the petitioner and Mst. Rafia Bano, respondent No, 2, was solemnised at Kasur on 6th July 1968, whereafter they lived as husband and wife till 30th September 1968, in which month the petitioner, who is a C. S. P. Officer, proceeded to England for undergoing training. During his absence respondent No, 2 mostly resided with his parents at Lahore and also corresponded with him. She also stayed for some time with her parents at Karachi. The petitioner returned from England on 30th June 1969, on which date she gave birth to a son, named Nadeem Mahboob, who is now about six and a half years old. Thereafter respondent No, 2 continued to live with the petitioner at Lahore, Sargodha and Gujrat, at which stations he was posted till September 1972, in which month he was transferred to Lahore, where he held different posts. His son was admitted in Toddler's Academy, Lahore in 1972. Respondent No, 2 lived with him uptil 30th December 1972 when she left for Kasur along with the child and was expected to return by about 8th January 1973 when the school was to reopen after winter vacation, but instead of returning to Lahore, respondent No, 2 came to Karachi and three days thereafter, that is on 11th January 1973, she filed a suit seeking dissolution of her marriage in the Family Court, whereafter she returned to Kasur. It is not necessary to state the grounds on which the dissolution of marriage was sought, but on the summons being served on the petitioner he filed his written statement, in which he denied the allegations and also objected to the maintainability of the suit on the ground of lack of jurisdiction as no cause of action had arisen at Karachi.
3. The Family Court thereupon framed a preliminary issue as to whether it had jurisdiction to entertain the suit in terms of rule 6 of the Family Courts Rules, 1965. After recording evidence on this preliminary issue, the Family Court upheld the objection by order dated 5th November 1973 and returned the plaint for being filed in the Family Court at Lahore, where they had last resided.
Respondent No, 2 went in appeal against the above order, and the learned Additional District Judge, Karachi, by judgment dated 29th July 1974 allowed the appeal and set aside the order of the Family ,Court. It is this judgment which is impugned in this petition.
4. Since the territorial jurisdiction turns on the interpretation of rule 6 of the West Pakistan Family Courts Rules, it will be relevant to reproduce the rule in extenso "Rule 6.-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 suits for dissolution of marriage or dower the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction."
' Clauses (a) and (b) of the Rule admittedly do not apply to the facts of the instant case, but it is the proviso which is pressed into service by respondent No,
2. The proviso is limited to suits for dissolution of marriage or dower and enables the estranged wife to file a family suit in a Court within the local limits, of which she ordinarily resides. The proviso, therefore, excepts the case from the field provided by clauses (a) and (b) of rule 6.
5. In paragraph 23 of the plaint in Suit No, 115/73 respondent No, 2 relied for the purpose of territorial jurisdiction on the cause of action which is said to have accrued finally on or about the 30th December 1972 when she was turned out of the house by the petitioner. However, in the, written statement it was averred that respondent No, 2 having filed the suit within three days after her arrival at Karachi cannot bring her case within the meaning of the words "ordinarily resides" so as to give territorial jurisdiction to the Family Court. This is in short the controversy between the parties.
6. In the evidence of the parties, it is admitted that the parental house of respondent No, 2 bearing No, 147-A is situate in Sindhi Muslim Housing Society, Karachi. It is also admitted that before her marriage with the petitioner, she lived at Karachi and that she had her own business in the name and style of Shaheen Impex which is being managed by her brother, Ashraf. She is also an income- tax assessee and owns two houses at Haroonabad, District Bahawalpur. Lastly, she has testified that after leaving her husband's house she had come to live with her brother at Karachi who lives in the parental house.
7. According to the learned counsel for the petitioner the interval of three days is not sufficient to constitute what the words "ordinarily resides" connote. In construing these words, regard must be had not to her determination to stay at a particular place but it must be her residence in praesenti, which means usual abode and consequently a longer stay at a place. In support of his contention he relied on the language of subsection (8) of section 488, Cr. P. C., in which the words used are "resides or is or where last resided with his wife", to impress the distinction between the actual residence and residence for the time being. He also referred to the dictionary meaning of the words "ordinarily resides", to convey the meaning of usual abode in contradistinction to the stay at a place for the time being. He next relied on the cases of Mst. Khairunnisa v. Syed Abdur Rahim (0, Su'at Koran and others v. Sitaram and others (2) and Muhammad Noor v. The District Magistrate, Peshawar (3) and referred to rules 6 and 16 in "The Conflict of Law" by Dicey, 9th Edition, at pages 89 and 122, to impress that a person cannot have at the same time for the same purpose more than one domicile and that the domicile of a married woman is the same as that of her husband and changes with his domicile. Lastly, he referred to pages 196, 204 and 205 in "The Conflict of Laws" by R. R. Graveson, 6th Edition, to indicate the difference between an ordinary residence and habitual residence, habitual presence within the country in some kind of accommodation which could be described as that person's home and lastly that residence must answer a qualitative as well as a quantitative test.
8. The proviso by the very nature of its language is an enabling provision and is for the benefit of wife. The words "ordinarily resides" must, therefore, be construed in the context of an estranged wife who has left her husband's abode and has sought residence at any other place of he own choice. It will be that place which should answer to the 'concept an the interval of time' therefore has no relevancy, for it will be an anomaly if three days residence would not be sufficient but a three months stay would enable her to maintain her suit. Therefore, in such an event it is the intention of the wife to stay at a particular place, which is material, and if time factor is the sole criterion, then it would amount to putting a premium on the suit which she could legitimately file after her relations became strained for the dissolution of marriage or dower and that could not be the legislative intent. The very language of the proviso, therefore, would enable her to file a suit for dissolution of marriage at any place where she has come to reside and in this view of the matter the distinction sought be brought out by the use of the word 'is' in subsection (8) of section 488, Cr. P. C. Is of no efficacy. It may also by pointed out that unless the provision is in 'pari materia', it is not correct to construe a provision with reference to another provision in a different Act, for it is the language o the provision which is the determinative factor. Considering the implication of her intention, if then she should decide to live at a place where she files the suit, it must be taken to be her usual abode.
Hence the dictionary meaning of the words 'ordinarily resides' would not also advance the case of the petitioner. In the case of Mst. Khairunnisa the petitioner filed a suit in the Family Court at Shandadpur for the custody of the minor who was at that time living with his father at Karachi ; and soon thereafter the father filed a suit against the petitioner for restitution of conjugal rights at Karachi. Subsequently an application was filed in the High Court by {{FOOT NOTE}}
(1) PLD 1973 Kar. 237 (2) AIR 1952 Raj. 31
(3) PLD 1970 SC 273 {{FOOT NOTE}} ' the petitioner for the transfer of the latter case to Shandadpur. In this background, clauses (a) and
(b) of rule 6 were held to be against the petitioner in so far as the filing of the suit for custody of the minor in the Family Court at Shandadpur was concerned, and as for the word 'ordinarily' used in the proviso, it was held that her mere shifting to Shandadpur would not make her "ordinary resident" of that place. In holding so, it was observed that it could not be the purpose of the Legislature to make the jurisdiction of the Court dependent on the movement of the petitioner, wherever she wished to shift. With respect we may point out that the proviso is in no way attracted to the suit for the custody of the minor which in terms thereof relates to suits for dissolution of marriage or dower and, therefore, the construction placed on the word 'ordinarily', we might respectfully say so, is per incurlam.
9. In Suroj Karan and others the word 'resides' in section 29(a), C. P. C. Came to be construed and it was held that it meant ordinary and general residence in contradistinction to casual or occasional visits. This connotation will not be of any help, for in the case of an estranged wife the residence of her husband would not be her ordinary and general residence, but the place where she has taken up residence. Ibis is the connotation of the words 'ordinarily resides' in the proviso which excepts the case from the rule, namely where the parties reside or last resided together. It is again inapt to construe the words in the proviso by reference to the meaining of the word 'resides' in section 20(a), C. P. C. In Muhammad Noor the words 'ordinarily resident' used in the proviso to subsection
(4) of section 5 of the West Pakistan Maintenance of Public Order Ordinance, 1960, were construed by their Lordships of the Supreme Court and it was held that these words should be given their ordinary and usual meaning connoting some habit of life and in contrast with the extraordinary, occasional and temporary residence. In that case Moulvi Muhammad Idris was ordered to be externed from village Chamkani, where he had lived for some twenty years and during that period be was engaged in "teaching and preaching" in a private religious institution. As such his residence was not held to be extraordinary, occasional or temporary residence. Again, the principle of habit of life cannot be pressed into service in the case of an estranged wife who has left her house and sought a place of her own choice to live at, and such residence cannot be regarded as extraordinary, occasional or temporary residence but must be construed as ordinary residence in the context of the language of the proviso. In determining as to what is the meaning of the words "ordinarily resident", the duration of residence does not determine the question (see page 394, page 719, Halsbury's Laws of England, Volume 20, III Edition).
10. As for the rules in the "Conflict of Laws' by Dicey, the learned counsel for the petitioner conceded that they were not strictly relevant and we, therefore, do not see how they can be pressed into service to impress a longer stay at a place within the concept of the words "ordinarily resides". In this connection, we would like to refer to a passage at page 96 of the same book :- "It is not, as a matter of law, necessary that the residence should be long in point of time ; residence for a few days or even for part of a day is enough. Indeed, an immigrant can acquire a domicile immediately upon his arrival in the country in which he intends to settle. The length of the residence is not important in itself ; it is only important as evidence of animus manendi. A person may be resident in a country although he lives in hotels there or in the house of a friend, and although he is staying there for some particular purpose such as conducting business or taking part in legal proceedings."
' Indeed, from the above the length of residence is hardly a factor which can be regarded as determinative.
11. Lastly, the concept referred to at pages 91, 96, 204 and 205 in the Conflict of Laws by Graveson, 6th Edition, can hardly be invoked in the face of the following passage at page 196 :- "Where residence is made the basis of jurisdiction for any purpose, such as taxation, voting rights and certain types of matrimonial causes, it may have acquired a special legal or statutory definition and it is necessary in such cases to examine the fact of residence in the light of the relevant branch of law."
' Therefore, it is the proviso which has to be construed and a meaning given to the words 'ordinarily resides'.
12. Concluding, therefore, it is not the length of residence which is material but the intention to stay at a place which will be the test for determining the ordinary residence of the wife. The Family Court has construed the words 'ordinarily resides' to mean that a wife should settle down at a place for a reasonably long period and it is thereupon that residence passes the stage of casual residence.
The interval of time was recorded as a determinative factor which, in or view, is not justified. As such, the plaint was wrongly returned, which decision on appeal was rightly reversed by the First Additional District Judge, Karachi. There is, therefore, no substance in this petition which is dismissed but with no order as to costs.
' JAMALUDDIN H. AHMAD, J.-I agree. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.