The facts of the case are that Mst. Naziran Bibi respondent' No. 3 filed two suits one for dissolution of marriage on 9-4-1994 and the other for maintenance on 2-4-1994 in the Court of Judge, Family Court, Samundari. Likewise the petitioner filed a suit for restitution of conjugal rights in the same Court. All the three suits were pending when respondent No.3 withdrew her suit for dissolution of marriage as well as for maintenance on 23-2-1995 and filed a second suit for dissolution of marriage in the Court of Judge, Family Court Kamalia on the ground that she was feeling in secured at Samundari, therefore, she had shifted to Kamalia. Learned Judge, Family Court, Kamalia after framing the issues on the basis of the pleadings of the parties returned the plaint for presentation of the Court of competent jurisdiction vide judgment and decree dated 24-1-1996. On appeal the learned District Judge, Toba Tek Singh vide judgment and decree dated 10-3-1996 set aside the aforesaid judgment and remanded the case to the learned trial Court with the direction that he should decide afresh issue No. 4-A as well as the other issues after hearing the counsel for the parties. After remand the learned Judge, Family Court, Kamalia decreed the suit for dissolution of marriage vide judgment and decree dated 18-4-1996.
2. Learned counsel for the petitioner has submitted that both the Courts below have illegally assumed the jurisdiction, the respondent was resident of Chak No 138/GB, Samundari District Faisalabad where she had filed her suit for maintenance as well as for disolution of marriage, the cause of action arose at Samundari where she herself was residing. In her pleadings she admitted to be resident of Chak No. 138/G.B., therefore, the Family Court at Kamalia had no territorial jurisdiction to try the suit. Both the judgments of the Courts below are coram non judice and are nullity in law.
3. I have heard learned counsel for-the petitioner and gone through the judgment passed by the lower Appellate Court. At the appellate stage learned counsel for the petitioner frankly conceded that if the Appellate Court reaches to the conclusion that the finding of the learned Judge, Family Court under issue No.4-A as regards jurisdiction is concerned is incorrect and that the learned Judge, Family Court has not given the finding under the remaining issues and if those issues are decided by the Appellate Court the right of appeal of one party will be defeated and as such this case should be remanded for fresh decision. Moreover, the learned Appellate Court examined the legality of the impugned judgment and decree passed by the learned Judge, Family Court while deciding that the respondent/plaintiff was not permanent resident of Tehsil Kamalia and why the respondent opted to file the instant suit in a Court which lacked territorial jurisdiction, the learned Judge Family Court had held that the intention of the wife to stay at a particular place should also be taken into consideration for determining her residence and a wife can file, a suit for dissolution of marriage at the place where she had come to reside. The onus of this issue was upon the petitioner who stated that the Court at Kamalia had no jurisdiction and that as there was no evidence on record from which the learned Judge, Family Court could gather that the parents of the respondent/plaintiff were residing at Samundari. The respondent/plaintiff was shown to be resident of Chak No. 138/GB. In this view of the matter the learned Appellate Court remanded the case back to the trial Court to decide the same afresh. Learned counsel has placed reliance on Mst. Khairun Nisa v. Sayed Abdur Rahim PLD 1973 Kar. 237. His submissions are that the jurisdiction of the Court is not dependent upon movements of plaintiff or where she happens to reside for the time being. I am afraid this judgment is in respect of the custody of the minor and the provisions of the Guardians and Wards Act are very clear as to the jurisdiction of the custody of the minor is concerned. Rule 6 of the rules framed under the West Pakistan Family Courts Rules, 1965 provides:- -- "(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."
The superior Court have interpreted the ordinary jurisdiction as a jurisdiction where the wife lives and shifts to reside for the time being. In the present case the respondent had filed a suit within the jurisdiction of samundari and she withdrew the same and filed at the same at Kamalia. The reasons for filing this suit at Kamalia have been stated in para. 4 of the plaint that she filed the suit in the Family Court, Samundari and was detered by the petitioner/defendant on each date to pursue the same and constantly was threatened with dire consequences by him and many a times the respondent/plaintiff hardly saved her life and that out of fear she has changed her residence and now she is residing for the last six months at Mohallah Darbar Roshan Shah, Kamalia in her uncle's house as it has become risk to the life to the respondent to pursue her case at Samundari. In compulsion the suits were withdrawn from the Court of Judge, Family Court, Samundari and were filed within the jurisdiction of Family Court at Kamalia. It is argued that the question of jurisdiction of the Court under the law does not travel with the wife. If the respondent was under a fear from the petitioner, she could have filed an application under section 25-A of the Family Courts Act and get her case transferred to other Court. The learned Judge, Family Court vide judgment and decree returned the plaint only on issue No.4-A although the evidence on the rest of the issues was also recorded. No preliminary issue was framed by the learned Judge, Family Court on the point of jurisdiction, he framed other issues regarding cruelty, non-maintenance, bad character, jurisdiction, Khula' as well as dower and full evidence was present on record as Mst.
Naziran Bibi respondent appeared as her own witness as P.W. 1, and Muhammad Ismail appeared as P.W.
2. Likewise Nazir Ahmad petitioner appeared as his own witness as D.W. 1 and Kamal Din appeared as D.W. 2 in support of his case. A careful perusal of the evidence shows that the parties gave full evidence on all the issues framed by the learned Judge, Family Court. The case was remanded by the Appellate Court vide judgment and decree dated 10-3-1996 and the same was decreed by the learned Judge, Family Court vide judgment and decree dated 18-4-1996. While deciding issue No. 4-A, it was held that after examination of the evidence it is not proved that the plaintiff is residing with Amanat Ali her brother-in-law, either in Chak No. 58 or 258/GB, Tehsil Samundari, therefore, the Family Court at Kamalia has got the jurisdiction to try the suit in hand and the issue was decided against the defendant. The appellate judgment merged in the judgment passed by the Judge, Family Court, Kamalia. The petitioner could not challenge the remand order passed by the Appellate Court. The Family Courts are special Courts and these Courts can regulate themselves through procedure given in the Family Courts Act which deviates from the strict procedure regulated by the Code of Civil Procedure and Qanun-e-Shahadat.
Therefore, the Legislature has made the procedure of Family Court more flexible so that the family matters can be settled by way of administration of justice in the right path and by no means the legal A technicalities and the hard and fast rules governing the C.P.C. Could deter the path of justice to the marital spouses. The words "ordinarily resides" connote a meaning that it is a benefit given to the wife who shifts from the place of her husband to the other place and proves that she has been ordinarily residing at the place where she is invoking jurisdiction of the Family Court. In a male dominated society if a woman under fear of her death shifts her residence for invoking the jurisdiction of Family Court other than at the place of her husband and proves to the Court that she is ordinarily residing within its jurisdiction for shifted period the Family Court being a Special Court under the special law may accept the same after examining the evidence on record. This matter has been discussed in Mahbub Ahmad v. First Additional District Judge PLD 1976 Kar. 978 (DB).
4. Moreover, Rule 6 of the Rules framed under the Family Courts Act provides the procedure in suits for dissolution of marriage or dower and it suddenly deviates from the normal procedure by giving a provision to the Family Court to adjudicate upon the family suits within the local limits of which the wife "ordinarily resides". From a cursory glance it is an enabling provision and is for the benefit of wife and it can be read in that context when an estranged wife who had left her husband's abode and has sought residence at any other place of her own choice and proves that she had been ordinarily residing over there then the Family Court cannot refuse jurisdiction to hear the suit, when she invokes jurisdiction by filing a family suit. I have carefully read the evidence on E record issues Nos. 1, 2, 3 and issue No. 4-B. It is proved in evidence that prior to respondent's marriage, petitioner married twice. Respondent appearing as P.W. 1 has deposed that the petitioner maltreated her and compelled her for commission of unnatural offence. She had developed extreme hatred. She offered to forego her dower. The evidence of D. W. 1 and D. W. 2 mainly depended on the point of jurisdiction. Therefore, the learned Judge, Family Court has rightly dissolved the marriage on the point of Khula'. No interference can be made at this stage. Same is dismissed in limine.
5. This also disposes of C.M. No. 1/96 and C.M.No. 2/96.