1. This petition calls in question the judgment and decree dated 4-10-1995 of learned District Judge, Jacobabad and judgment and decree of learned 1st Senior Civil Judge /Family Court, Jacobabad dated 20-4-1995 and 23-4-1995 respectively, with the prayer to declare the same as void, illegal, ultra vires, mala fide and without lawful authority.
2. The background of this petition starts from filing suit for maintenance by respondent Mst. Gul Rashida against petitioner Dr. Aijaz A.I her husband in the Court of learned 1st Senior Civil Judge/Family Judge, Jacobabad, wherein she mentions that she was married with petitioner on 22-11-1991 and after marriage she resided with him in his house at Shikarpur and soon after marriage an ill-will started between them on the behaviour of family members of petitioner and they started misbehaving with her. About five months after marriage respondent was driven out by the petitioner from the house and thereafter started residing with her parents at Jacobabad, where her father was employed as Dental Surgeon at Civil Hospital. Respondent gave birth to a son namely Waseem Aijaz from the wedlock. She states in her suit that her valuables consisting of golden ornaments, silver ornaments, Television, Tape-recorder, V.C.R, Dish Antena, Refrigerator, Iron safe sewing machine, Fan, Bed-set, show-case, washing machine, Dinner set, tea-set, clothes and other household articles valuing at Rs.2,34,475 given in dowry were retained by the petitioner and was driven out from his house and after that petitioner had never turned up to see her or her/his child although he was approached by her father. She being constrained, sent legal notice to pay maintenance to her as well as to her child which was replied in vague manner, falsely contending that respondent Gul Rashida is not willing to return to the home of petitioner and such has no right to claim any maintenance. However, he agreed to pay Rs.300 per month as allowance for maintenance of his child provided he should be allowed to see his child fortnightly, but in fact it was false excuse also as he never appeared to see his child or the respondent nor he ever paid any maintenance. In suit she has shown petitioner as Medical Officer of Chandika Medical College Hospital earning salary of Rs.5,000, excepting agricultural land at Shikarpur and having sufficient income of Rs.2,00,000 per year. She claims a maintenance of Rs.2,000 per month for herself and Rs.500 per month for her son and prayed for such decree in her favour.
3. Summons of the suit was directed against petitioner (defendant) for 28-8-1994 and Mr. Aijaz A.I Shah, Advocate sent power on his behalf alongwith adjournment application through his clerk which was granted, however he failed to file written statement on 27-9-1994 and suit was ordered to proceed ex parte and respondent/plaintiff was directed to adduce her evidence and she filed affidavit on 10-10-1994 and the matter was postponed on 17-10-1994 and on this date arguments were heard and the case was postponed to 19-10-1994 for judgment. On 18-10-1994 an application was moved on behalf of petitioner for setting aside ex parte order which was dismissed on 12-12- 1994 and against this order appeal was filed as Misc. Family Appeal No. 1 /95 which too was dismissed by the learned District Judge on 30-3-1995 maintaining that appeal does not lie against an order passed on inter locutary application. Thereafter petitioner filed written arguments and learned trial Court after perusing the written arguments and hearing of respondent's counsel decreed the suit on 20-4-1995 and granted Rs.1,000 per month maintenance for respondent w.e.f.
4. 1-6-1992 and Rs.500 per month for her son since the date of his birth.
5. Against this judgment petitioner filed appeal before the learned District Judge, Jacobabad which was dismissed on 4-10-1995.
6. Petitioner in this petition has controverted the pleadings of respondent Mst. Gul Rashida and has stated that respondent is a woman of hot temperament and irritable nature and frequently indulged in constant quarrels with the inmates of the house and after all efforts to persuade properly she became adamant and after about 8 months of marriage she left the petitioner's house without his consent while taking golden ornaments and other valuable things which petitioner has given to her on the eve of marriage, and since then she is continuously residing with her parents at Shikarpur. Petitioner further states in the petition that after the birth of his son Waseem Aijaz he approached her as well as her parents through respectable persons of the community for return to his house and to restore valuable articles but all in vain.
7. Mr. Lal Muhammad counsel for the petitioner assailed the judgments of the two Courts below contending that the same are opposed to law, fact and equity and are not maintainable.
8. According to him the trial Court has ignored most important fact of not holding of pre-trial and post trial proceedings which is imperative requirement of law and is a very serious legal infirmity rendering the impugned judgments as corum non judice. Not only this the learned counsel stated that petitioner's appeal preferred against the dismissal of his application for setting aside ex parte order passed by learned Family Judge has been dismissed erroneously on unfounded assumption that no appeal lay against the interlocutory orders. Notwithstanding the fact that section 14 of Family Courts Act definitely permits appeal against interlocutory orders. He lastly submitted that learned Family Judge has seriously erred in holding the ordinary place of residence of respondent No. 1 at Jacobabad and according to her own averment in the plaint her permanent place of residence is at Shikarpur as such the Family Court at Jacobabad had jurisdiction to entertain the suit.
9. Admittedly ex parte order was passed on 27-9-1994 maintaining that in spite of chances given to the petitioner/defendant to file written statement, he could not do so. It was on 18-10-1994 a day before announcement of judgment an application was moved on behalf of petitioner to set aside the ex parte order which was dismissed on 12-12-1994 and against that order a Miscellaneous Family Appeal was filed on 30-1-1995. Admittedly no petition or any legal remedy was availed by the petitioner against this order. In this petition he has challenged this order for the first time to be without lawful authority. The petition is filed on 3-6-1996 wherein this order as well as judgment and decree dated 4-10-1995 of Appellate Court have been called in question. This has been done apparently after a lapse of about six months and no plausible explanation bas been furnished for filing this petition after lapse of six months nothing has been mentioned in the memo. Of petition by the petitioner. Taking into consideration the date of dismissal and Family Miscellaneous A.No.1/95 the petition will be barred by one year and two months.
10. Learned counsel's contention that pre-trial and post trial were not arranged therefore the judgments are nullity in the eye of law has absolutely no force as these proceedings are held under sections 10 and 12 of West Pakistan Family Courts Act, 1964 and their stage starts after filing of written statement and when written statement is not filed then the question of these proceedings does not arise and moreover appellant had also remained absent all along. It was within the knowledge of petitioner that he is required to appear before the Family Court in pursuance and notice served on him on 10-8-1994 but he remained absent and simply filed power through his counsel. Under the provisions of section 9 of West Pakistan Family Courts Act, 1964 it is mandatory provision of law that he shall appear before the Family Court for filing written statement and in case if he fails to appear on the date fixed by the Family Court the Court may proceed in the matter ex parte. Record borne out the fact that petitioner filed written arguments after receipt of the R & P on 30-3-1995. From this attitude it can be presumed as to how petitioner was vigilant in conducting his case. He apparently was sleeping over his rights by not contesting the suit at the initial stage and then filed petition after waiting for about six months of the announcement of the judgment of Appellate Court. The contention that the respondent is not entitled to the benefit of maintenance as she is not prepared to go and live with petitioner is controverted by the fact that during the pendency of appeal she preferred an application in writing to the Appellate Court that she is ready to accompany the petitioner and prepared to live with him by petitioner never bother to do so. According to Holy Qur'an and Sunnah Muslim wife is bound to perform all her obligations as ordained upon her and then she can claim her maintenance if her husband still chooses to neglect her. In case wife refuses to live with husband only then the husband has right to deny maintenance to her but where wife is prepared to live with her husband and still then he refuses to allow her to live with him, then he is under legal obligation to provide maintenance to the wife. In this case it is an admitted position that wife is ready to join his husband as stated above hence petitioner is under the legal obligation to maintain her as well as her son. It is admitted that by this time petitioner has failed to provide maintenance to both of them and has no care of them also.
11. Petitioner relaxed his attitude towards his son by saying that he is prepared to give Rs.300 for his maintenance alone. A reasonable amount of maintenance of Rs.1,000 for the respondent and Rs.500 for their son has been held in the judgment of the two lower Courts below. Keeping in view the sky high prices of the commodities it is even insufficient during these hard days. The learned counsel has failed to point out even a single instance of misreading or non-appraisal of evidence by the Courts below and so also any illegality making the judgments without being lawful authority and of no legal effect. Both the Courts have applied their conscious mind to the evidence on record and have given sound and cogent reasons in support of the conclusion arrived at by them. The Constitutional relief being extraordinary and discretionary one, the writ petition to the extent of order of maintenance of respondent Mst. Gul Rashida and child namely Waseem Aijaz, confirmed by the learned District Judge is liable to be rejected on this score alone. The same view has been held by the Lahore High Court in the case of Ghulam Sarwar v. District Judge and others 1985 CLC 2478. This Court in case of Mahboob Ahmed v. 1st Additional District Judge and another reported in PLD 1976 Karachi .978 has elaborately defined words ordinarily resides" in proviso to rule 6 of Family Courts Rules and a Division Bench of this Court has concluded that it is not the length of residence which is material but the intention of stay at a place which will be the test for determining ordinary residence of the wife. Here in this case the parents of respondent reside at Jacobabad therefore she is justified to have abode there and file suit for maintenance. As argued that interlocutory order as well as the judgments and decrees of the lower Courts are void, learned counsel has not been able to refer to a single instance of being the same as void. On the contrary the same have been passed on merits and there seems to be no justification to interfere with the concurrent findings of the two Courts below and the writ petition is itself liable to be dismissed. Excepting this the same is hit by laches as being filed after lapse of sufficient time. It cannot be left at the choice of the petitioner to approach this Court whenever it suits him. In case of S. Sharif Ahmed Hashmi v.
12. Chairman, Screening Committee, Lahore and another 1978 SCM R 367 Hon'ble Supreme Court has held that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if he has been guilty of laches. It is also maintained in the decision that line to be drawn somewhere between delay which can be condoned and which cannot be condoned. In the case in hand the delay in approaching the Court is so gross which cannot be condoned.
13. For what has been stated above no case of interference in the exercise of Constitutional jurisdiction is made out, Consequently Petition No. S.569/96 is dismissed in limine alongwith pending applications.