The grievance of the petitioner/husband against the judgment given by the VIIIth Civil and Family Judge Karachi, East, dated 8th January, 1992 is that the Civil Judge, who had passed the judgment had no jurisdiction because the wife who filed the suit for dissolution of marriage as well as for the maintenance of the minor child was ordinarily not the resident of Karachi and she was resident of Tando Adam while the parties after the marriage resided at Hyderabad. He has relied upon the Rule 6 of the Family Court Rules which reads as follows:- "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 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.
2. As against this contention urged by the learned counsel for the petitioner, learned counsel for the respondent/wife contended that section 5 of the Civil Courts Act, 1964 read with the Schedule governs the situation. According to her the contention urged by the learned counsel for the petitioner could be valid consideration provided that the legislature would have used "permanent" instead of ordinary residence. There is different in permanent and ordinary residence and she opposed the grant of petition.
3. The above contention urged by the parties arose because Mst. Naseem Bano was married to the petitioner. They resided together and the dower amount was fixed at Rs.7,101. She applied for the dissolution of marriage on the ground of cruelty of conduct, non-maintenance and other pleas, in the Court of VIIIth Civil and Family Judge Karachi East in which she claimed that she is residing at Korangi No. 1, Karachi. The petitioner contested the case filed written statement and inter alia maintained that the Court at Karachi had no jurisdiction. On the basis of pleadings of the parties the Court framed the following issues:
(1) Whether this Court has got no jurisdiction to entertain the present case?
(2) Whether the plaintiff was maltreated by the defendant?
(3) Whether the plaintiff was not maintained by the defendant?
(4) Whether the plaintiff is entitled to dissolution of her marriage with the defendant on the ground of Khula?
(5) Whether the plaintiff is entitled for her maintenance? If so, to Which period and under what rate?
(6) What should the decree be?
4. The respondent/wife examined herself and Muhammad Nazir as her witness while the petitioner examined himself and two witnesses, namely, Abdul Aziz and Atta Muhammad. The Family Court came to the conclusion that it had the jurisdiction. Court granted the dissolution of marriage and did order that the wife will not be entitled to the dower amount. The Court granted maintenance to the minor child. Against the maintenance order an appeal was filed which was dismissed.
5. Coming to Rule 6 which is the backbone of the contention of the learned counsel for the petitioner, it will be seen that there is proviso. It is well settled that the proviso is to be strictly construed because a proviso is an exception to the main rule. It is also an exception to the general rule that the suit ordinarily is to be filed where the defendant resides. The legislature has done so specifically to provide protection to the wife which is disadvantaged or lesser advantaged in the society. Where the legislature has specifically provided that the suit can be filed where the wife ordinarily resides because of disadvantages attached to the women in the society, therefore, technicalities if any, unless they pose insurmountable difficulties are not to be looked into. This is the law which has been laid down by the Hon'ble Supreme Court of Pakistan in the case of Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678).
6. Coming to the definition of word "ordinary" in the Blacks Law Dictionary VIth Edition, word "ordinary" has been defined in column one at page 1097, inter alia, mean usual, normal, common, settled, customary and reasonable.
7. Before the word can be made applicable it will be advantageous to refer to the evidence which was laid by the parties in this case. The respondent wife examined herself and she stated in her deposition as follows:- "It was the habit of the defendant to turn out me from his house lastly in the year of 1985 the defendant had turned out me from his house after giving severe beating in 3 clothes and then I got shelter to my parent's house at Tando Adam and then I came to Karachi due to the nuisance created by the defendant for me at Tando Adam and here at Karachi. When I was being turned out by my cousin at Korangi. When I was being turned out by the defendant from Hyderabad I was pregnant of 3 months. I gave birth to a female child at Tando Adam. Since I had been turned out by the defendant, the defendant never maintained me nor has sent any maintenance to me as well for minor child. The defendant has also not made any effort to take me back due to the cruel attitude of the defendant non-maintenance I hate him I do not want to live with the defendant at any cost I want Khula for which- I am ready to forego my dower amount. The defendant had also not paid any maintenance for the child. The defendant even neither has come to see the minor child nor has paid the delivery expenses. The defendant earns Rs.1,500 p.m.
Cross to Advocate for defendant.
My marriage was held at Tando Adam. My parents used to reside/and reside at Tando Adam. It is correct that my N.I.C. And domicile pertains to Tando Adam. It is incorrect that I am permanent resident of Tando Adam. I am living in Karachi for the last two years. I am not in service I being maintained by my parents, at Karachi. It is incorrect that I only come to Karachi only to attend this case. It is correct that female child was born at Tando Adam."
8. The reason which has given for shifting to Karachi is that the petitioner made her life miserable and caused nuisance to her at Tando Adam. In his own deposition he had admitted that she does have relative at Karachi but specifically 'denied that she does not live in Korangi. No question was asked in the cross---examination from the respondent that she is not residing at Korangi or that she is not ordinarily residing at Korangi.
9. Mr. Muhammad A.I Jan, learned Advocate for the petitioner stated that in order to be a resident it is necessary that she may have the electric or gas bill in her name or some document which may reflect her abode. Those contentions would have been valid if the legislature would have used permanently instead of ordinarily. The legislature has used the word ordinarily which has a different meaning than that of permanent residence.
10. Once the respondent steps in the witness-box and says that she resides in Karachi and that too she resides in Karachi because there was nuisance created while she was living with their parents at Tando Adam, Karachi, in the ordinary course would be the normal residence and normal residence would mean ordinary residence as defined in the dictionary itself. The learned counsel for the petitioner relied upon the judgment of this Court in the case of Mst. Khairunissa v. Abdur Rehman (PLD 1973 Karachi 237). Wherein the issue before the Court was pertaining to the transfer of other case which is regulated under section 24. The issue before the court was pertaining the section 20 of the Code of Civil Procedure. I have already held in this judgment that the proviso to Rule 6 is an exception to section 20 of the Code of Civil Procedure, therefore, the said judgment will have no impact on the views that I have taken.
11. Jurisdiction given, no other point was urged, therefore, this petition is dismissed with no order as to costs.