' This is an application under section 25-A of the West Pakistan Family Courts Act, 1964 for transfer of the suit for restitution of conjugal rights filed by the respondent against the petitioner herein titled "Muhammad Jameel v. Mst. Zubaida Bibi" from the Court of Mr. Abdul Majid, Judge, Family Court, Vehari where her suit for dissolution of marriage titled "Mst. Zubaida Bibi v. Muhammad Jameel" is pending adjudication.
2. The petitioner filed a suit for dissolution of marriage before the Judge, Family Court, Vehari on 12- 1-1995 against respondent Muhammad Jameel, her husband who claims to be a soldier. In consequence, the respondent appeared in the Court to contest the suit and admittedly has been appearing before the Judge, Family Court at Vehari on various dates of hearing without objection.
However, by way of counterblast, the respondent also filed a suit for restitution of conjugal rights on 22-1-1995 against the petitioner before the Judge, Family Court, Lahore. This suit is sought to be transferred by the petitioner on the ground of being a female who apprehends danger to her life and modesty at his hands if she pursues the case at Lahore and to avoid conflicting judgments.
The application is supported by an affidavit. No counter-affidavit has been filed by the respondent.
Additionally, the marriage was also solemnised at Vehari where the petitioner herein is residing.
3. Respondent has contested the application on the ground that he was a soldier on duty in the Airport Security Force and being presently posted at Lahore, it would be difficult for him to pursue his suit for restitution of conjugal rights at Vehari. The respondent has also heavily relied on section 3(b)(iv) of The Soldiers (Litigation) Act No,IV of 1925 (herein called the Act), to contend that he is precluded from obtaining leave of absence to attend the Court at Vehari being serving under special conditions as contemplated by clause (a) of section 3 of the Act.
4. The contention is devoid of any force. In terms of clause (iv) of subsection (b) of section 3 of the Act, it is for the prescribed authority to form an opinion whether a person serving under conditions preclude him from obtaining leave, of absence to enable him to attend a Court as a party to any proceedings. Further under section 5 of the Act, it is for the Collector alone to certify if he has any reason to believe that a soldier who ordinarily resides or has property in his district and who is a party to any proceedings pending before any Court, is unable to appear therein. And where the Collector has so certified under section 5 of the Act or if the Court has reason to believe that such a soldier is unable to appear therein and is not represented by any person duly authorised to appear, plead and act on his behalf, the Court shall suspend the proceedings after giving notice thereof in the prescribed manner to the prescribed authority. Proviso to subsection (1) of section 6 refrains the Court from suspending the proceedings and issuing notice thereof if-- "(a) the proceedings in a suit, appeal or application instituted or made by the soldier, alone or conjointly with others with the object of enforcing a right of pre-emption, or
(b) the interests of the soldier in the proceeding are, in the opinion of the Court, either identical with those of any other party to the proceeding and adequately represented by such other party or merely of a formal nature."
Here the suit for restitution of conjugal rights is interlinked with the suit for dissolution of marriage and in order to avoid conflicting judgments, the interest of justice demands that both the suits should be heard and disposed of together by one Court. The respondent has not prayed for transferring the suit for dissolution of marriage to Lahore to be heard alongwith the suit for restitution of conjugal rights. The respondent has been pursuing the case for dissolution of marriage at Vehari. He is represented by a counsel in those proceedings. The respondent is also represented by a counsel in his suit for restitution of conjugal rights. The mere fact that, the respondent is a soldier is not a sufficient ground in declining to transfer the suit from Lahore to Vehari in the facts and circumstances of the present case. Apart from that the petitioner's suit for dissolution of marriage is prior in time than that of the restitution of conjugal rights filed by the respondent and the law also leans in favour of females in such cases.
5. It is true that the soldiers serving in the national cause are entitled to statutory safeguards in respect of civil and revenue litigation serving under special conditions, including those relating to matrimonial. If at any stage, the learned trial Judge has good reason to believe that a. Soldier is unable to appear where his presence is necessary, the proceedings could be postponed in accordance with the procedure laid down in section 7 ibid. No step has been taken by the respondent in this behalf nor it is his case that the mandatory provisions of the Act have been contravened by the Court seized of the suits. It is, therefore, not, correct to say that transfer of the suit for restitution of conjugal rights from Lahore to Vehari is hit by the provisions of the Act. Looked at from whatever angle, both the suits should be heard and disposed of together. The interests of the respondent are adequately represented by his counsel in both the suits, therefore, the mere fact that the respondent claims to be a soldier is not a sufficient ground to transfer the suit from Lahore to Vehari.
6. In view of the above, the suit for restitution of conjugal rights titled 'Muhammad Jameel v. Mst.
Zubaida Bibi" is withdrawn from the Court of Mr. Abdul Majid, Judge, Family Court, Lahore and transferred to the Court of Senior Civil Judge/Judge, Family Court, Vehari. Both the suits shall be heard and disposed of together.
7. The application is accepted with no order as to costs.