Mst. Irshad Maee petitioner filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and challenged the legality of judgment passed by Civil Judge/Judge Family Court, Multan dated 22-6-1994 whereby suit of the petitioner/plaintiff was dismissed for want of jurisdiction and the judgment of learned Additional District Judge, Multan dated 19-10-1994 by which, judgment of the learned Judge Family Court was upheld.
2. The facts necessary for the decision of the petition are that Mst. Irshad Maee petitioner was married to Muhammad Asiam respondent No.3 on 15-4-1994 and Nikah was registered at Union Council Paddah, Tehsil Mailsi, District Vehari. They both lived happily for some time in Mailsi and thereafter the relations between the spouses became strained and consequently Mst. Irshad Maee petitioner on 28-2-1993 brought suit for dissolution of her marriage. She pleaded that defendant- respondent No.3 did not provide her maintenance and that respondent No.3 was addict and committed unnatural offence with her and persuaded her to lead an immoral life. Muhammad Aslam, defendant-respondent No.3 contested the suit not only on factual grounds but also took an objection that the Family Court at Multan had no territorial jurisdiction to entertain and decide the suit, He pleaded that Mst. Irshad Maee was not the resident of Multan.
3. On the basis of pleading of the parties, following issues were framed by the Judge Family Court: Issues
(1) Whether the Judge Family Court at Multan has no territorial jurisdiction to try this suit? OPD
(2) Whether the defendant treated the plaintiff with habitual cruelty? OPP
(3) Whether the defendant did not pay maintenance allowance to the plaintiff? OPP
(4) Whether the defendant forced the plaintiff to lead an immoral life? OPP
(5) Whether the defendant had been committing unnatural offence with the plaintiff? OPP
(6) Whether the defendant is a person of bad character and he sold away the dowry of the plaintiff? OPP
(7) Whether the plaintiff has developed so much hatred against the defendant that the spouses cannot live together as husband and wife within the prescribed limits of Almighty Allah, as such, she is entitled to a decree for dissolution of marriage on the basis of Khula', if so, on what terms and conditions? OPP
(8) Relief.
4. Mst. Irshad Maee-petitioner appeared as P. W.1 to support her case. She stated that she was serving as maid servant in the house of Malik Farooq for the last two years. She stated that after her estrangement from the house of her husband Muhammad Aslam-respondent No.3, she did not go to the house of her parents and she admitted that her parents and brothers were living in Tehsil Mailsi and they had not accompanied her to the Court. Iqbal Hussain P.W.2 stated that the petitioner was residing in the house of Malik Farooq Khar situated 'in Waqas Town, Multan and further stated that he resides at a distance of about one kilometre from the house of Malik Farooq Khar. He also used to visit the house of Malik Farooq Khar and petitioner resides day and night at the residence of Malik Farooq Khar as a maid servant. He also stated that the plaintiff straightaway came to the house of Malik Farooq Khar from Mailsi. Petitioner has stated during the cross- examination that she did not go to the house of her parents as they refused to look after her because they are frightened from respondent Muhammad Aslam. She also stated that she has not met her parents for the last two years. It was suggested to her by learned counsel for respondent that her parents are not on visiting terms with her because she eloped with Khuda Bakhsh and Imam Din. This suggestion clearly indicates that it was admitted by the respondent that parents of the plaintiff were not on visiting terms with her. Contrary to this Muhammad Aslam respondent/defendant stated that the plaintiff left her house on 15-1-1992 in his absence. He stated that Mst. Irshad Maee is resident of Tehsil Mailsi. He has not categorically stated that the petitioner was not residing in the house of Malik Farooq Khar situated in Waqas Colony, Multan. Ghulam Qamar D.W.2 stated that Irshad Maee petitioner was resident of Ameer Pur and none of the relatives of the petitioner lives in Multan and the petitioner never resided at Multan to earn her livelihood.
5. Both the learned lower Courts decided the case on the question of territorial jurisdiction and did not give any verdict upon the facts. Issue No. l (whether Judge of Family Court at Multan has no territorial jurisdiction to try the suit) was decided in the affirmative as against the petitioner/plaintiff and the suit was consequently dismissed. The Judge Family Court in para.7 of the judgment categorically held that "the plaintiff is living with strangers at Multan and it is quite possible that she is still in the clutches of the abductors". Learned Judge Family Court was not justified in the eyes of law to hold that Family Court at Multan had no jurisdiction to try the suit when he clearly observed that the petitioner/plaintiff was residing at Multan.
6. Learned Additional District Judge upheld the judgment of learned Judge Family Court for the reasons that as Malik Farooq Khar did not appear in the Court to support the case of the petitioner and the parents of the lady also did not appear in the Court to support her case. He observed that it appeared to him that plaintiff lady was of such temperament that she could not live with her husband, parents or other relatives. The learned District Judge further observed that the Courts cannot be idle spectators of lady being get astray". In my opinion these observations of the learned Additional District Judge were uncalled for. He did not examine the question of the territorial jurisdiction in its true perspective.
7. 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 dower the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction. "
8. Clauses (a) and (b) of the rule admittedly do not apply to the facts of I c the instant case, but it is the provision which is pressed into service by I' petitioner. The proviso limited to suits for dissolution of marriage or dower and l enables the estranged wife to file a family suit in a Court within the local limits, of which she ordinarily resides.
9. In the evidence of the parties, it is admitted that the parental house off the petitioner is situated in Mailsi and the petitioner and respondent Muhammad Aslam lived together in Mailsi. It was averred in the petition that after the estrangement, petitioner started living in Waqas Town, Multan.
Her statement is corroborated by Muhammad Iqbal P.W.2. It would not be material if the petitioner resides alone in someone's house or she resides with her family members. Neither respondent Muhammad Aslam nor D.W.2 stated that petitioner is not living in Waqas Town, rather it was suggested by learned counsel for the defendant that parents of petitioner did not visit her because she eloped with Khuda Bakhsh and Imam Din.
10. The provisio by the very nature of its language is an enabling the 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 abode and has sought residence at any other place of her own choice, it will be that place which should answer to the concept. Therefore, in such an event, it is the intention of the wife to stay at a particular place, which is material for the determination of territorial jurisdiction of the Court. 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. In case of estranged wife, the residence of her husband or of her parents would not be ordinarily and general residence, but the place where she has taken up residence. This is the connotation of the words "ordinarily reside" in the proviso, which excepts the case from the rule, namely where the parties resided or last resided together.
11. Dicey in his book "Conflict of Laws" at page 96 explains "ordinarily resides" as:-- "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."
12. Further, at page 196 of "Conflict of Laws" by Graveson, 6th Edition, it is mentioned:-- "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 proviso which has to be construed and a meaning given to the words 'ordinarily resides'.
12. Ordinarily a question of fact would not be gone into by High Court in exercise of its Constitutional jurisdiction. However, where finding of the Court on the face of the record appears to be perverse or based on no evidence, High Court even in the Constitutional jurisdiction could take different view.
Reliance placed upon "PLD 1988 Kar. 602, PLD 1976 Karachi 978 and PLD 1979 SC 864".
13. In my view both the Courts below have unlawfully refused to exercise their jurisdiction on a wrong assumption that they did not have which, in fact they had by virtue of rule 6 of West Pakistan Family Courts Rules, 1965 as the suit being for dissolution of marriage could be filed in the Court of Family Judge, Multan where the petitioner was ordinarily residing for the last one year. The respondent No.3 stated that the plaintiff Mst. Irshad Maee (petitioner) left his house on 15-1-1992 and the suit for dissolution of marriage was filed on 22-2-1993 which clearly shows that the petitioner was not residing in Mailsi for the last more than one year.
14. For what has been stated above, this writ petition is accepted and the judgment of both the lower Courts dated 22-6-1994 and 19-10-1994 are hereby set aside. The record be sent back to the Court of learned Senior Civil Judge/Judge Family Court, Multan who shall decide the suit on merits within 6 months of the receipt of this order. The office shall immediately transmit the record of the lower Courts and a copy of this order to the Senior Civil Judge/Judge Family Court, Multan.