' Z. A. CLIANNA , J.-This constitutional petition, by a husband, is directed against the rejection of his application by the Family Court under rule 5 of the Sind Family Courts Act, 101 (hereinafter referred to as the said Act), praying for return of the plaint filed by his wife, respondent No, 3, for maintenance and payment of prompt dower, and the rejection of the petitioner's appeal by the learned Additional District Judge against the said order of the Family Court.
2. The relevant facts, shortly stated, for the purposes of this petition are that the petitioner married Mst. Tahira Khatoon, respondent No, 3, at Mandi Bahauddin on 8-10-1969. It is alleged in the petition that the parents of respondent No, 3 took her away from the house of the petitioner, some 15 days after the marriage, and all efforts made by the petitioner to bring back respondent No, 3 to his house proved to be unsuccessful. Subsequently, on 24-1-1972, respondent No, 3 filed a family suit, being Suit No, 9/72, in the Family Court at Sukkur, for recovery of her prompt dower amounting to Rs, 15,000, as also maintenance at the rate of R s. 250 per month. The petitioner put in a written statement, resisting the suit on many grounds, including the ground that the Courts at Sukkur had no jurisdiction in the matter. Subsequently, he submitted an application under rule 5 of the Rules framed under the said Act praying for the return to respondent No, 3 of her plaint. This application was rejected by the learned Family Court, Sukkur, on the ground that there was evidence to show that the said respondent was ordinarily residing at Sukkur. The petitioner went up in appeal to the District Court, but the learned Additional District Judge, Sukkur, upheld the decision given by the learned Family Court and dismissed the appeal. It is against the order of the Family Court and the order passed in appeal by the learned Additional District Judge that the petitioner has filed the present petition.
3. We have heard Mr. Shibli, the learned counsel for the petitioner, and also Mr. Khalilur Rehman.
Who represented respondent No,
3. The sole ground on which Mr. Shibli assailed the two impugned orders is that the marriaae of the petitioner with respondent No, 3 took place at Mandi Bahauddin where the parties lived together as husband and wife, and as respondent No, 3 had only gone on a casual visit to Sukkur, where her mother was under treatment, she cannot he said to be 'ordinarily residing at Sukkur', so as to give the Courts at Sukkur jurisdiction in the matter. In support of his contention the learned counsel referred us to paragraph 4 of the plaint filed by respondent No, 3, wherein she has stated that from September 1970 or nearabout it, the plaintiff is residing in Sukkur with her parents, because mother of the plaintiff is under treatment of doctors of Sukkur. The learned counsel contended that the visit of respondent No, 3 to Sukkur in connection with the treatment of her mother cannot be construed to imply that she was ordinarily residing at Sukkur.
4. Before we consider the submissions made by Mr. Shibli, we may state that no evidence has been recorded so far in the case and the bases of the application made by the petitioner, in regard to which the two impugned orders were passed, is the plaint by respondent No,
3. Since the petitioner has sought reliance on rule 6 of the Sind Family Court Rules, it would be appropriate to set forth the said rule in extenso. It 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 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."
5. It is an admitted position that the family suit filed by respondent No, 3 is both in respect of reeovery of her dower as well as for maintenance. It was on this account that Mr. Shibli attempted to show us that the residence of respondent No, 3 at Sukkur was a mere casual residence and she cannot be said to be ordinarily residing there. As to the proper connotation of the expression 'ordinarily resident', Mr. Shibli relied upon two reported decisions, namely Mohammad Noor v.
District Magistrate, Peshawar (1) and Mahbub Ahmed v. First Additional District Judge (2). The case before the Supreme Court was in respect of externment under the West Pakistan Maintenance of Public Order Ordinance, 1960, and their Lordships of the Supreme Court considered the connotation of the expression 'ordinarily resident' as appearing in section 5 of the said Ordinance. Allowing the appeal of the petitioner in that case on the ground that he was ordinarily resident of the piece from where he was sought to be externed, Yaqub Ali, J. (as he then was) observed as follows:- "The words 'ordinarily resident' occurring in the proviso to subsection (4) of section 5 of the West Pakistan Maintenance of Public Order Ordinance XXXI of 1960 must, therefore, be given their ordinary and usual meaning connoting some habit of life and in contrast with extraordinary, occasional and temporary residence. The fact that Maulvi Muhammad Idris was domicile of village Toru, district Mardan, was, therefore, irrelevant in determining "whether he was ordinarily resident of village Chamkani, district Peshawar or not. As seen the District Magistrate admitted in his parawise report to the High Court that Maulvi Muhammad Idris has been living in village Chamkani for some years and was engaged in "teaching and preaching in a private religious institution there". It could not, therefore, be said that his residence in that village was extraordinary, occasional or temporary residence."
6. The Karachi case is more appropriate, as it deals with the interpretation of rules 6 and 7 of the rules fra ned under the said Act, That case in fact supports the contention of the learned counsel for respondent No, 3, as it takes the view that it is not the length of residence of a party at a place but her intention which determines whether she 'ordinarily resides' at that place. That was a suit where a wife filed a suit for dissolution of marriage. The suit was sought to be resisted on the score of want of territorial jurisdiction of the Family Court. In that case the wife lived with the husband at different places in the Punjab, but ultimately she left the husband and went to Kasur, from where she came to Karachi and where she was delivered of a chili. At Karachi, she filed a suit in the Family Court seeking dissolution of hee marriage and thereafter returned to Kasur. As already stated, the suit was resisted on the ground that the Court at Karachi had no territorial jurisdiction, as the wife was not ordinarily residing at Karachi. Repelling this contention, Muhammad Haleem, J., sitting in the Karachi High Court, observed as follows:- "The proviso by the very nature of its language is an enabling 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's abode and has sought residence at any other place of her own choice. It will be that place which should answer to the concept and the 'interval of time' therefore has no relevancy, for it will PLD 1970 SC 273 (2) PLD 197o Kan 978 ' be an anomaly if three days residence would not be sufficient but a three months stay would enable her to maintain her suit. Therefore, in such an event it is the intention of the wife to stay at a particular place, which is material, and if the time factor is the sole criterion, then it would amount to putting a premium on the suit which she could legitimately file after her relations became strained for the dissolution of marriage or dower and that could not be the legislative intent. The very language of the proviso, therefore, would enable her to filo a suit for dissolution of marriage at any place where she has come to reside and in this view of the matter the distinction sought to be brought out by the use of the word 'is' in subsection (8) of section 488, Cr. P. C., is of no efficacy."
7. Mr. Khalilur Rehman, on the other hand, has pointed out that the suit filed by respondent No, 3 was not only for recovery of her prompt dower but also for maintenance, and he submitted that a suit for maintenance could be filed anywhere where the wife was for the time being resididing, as the cause of action for maintenance would arise at that place. In support of his contention he relied upon the decisions in Fazian Bibi v. Mihammad Azam (1) and Tahira Begum v. Matiallah (2). In the case first mentioned, S. A. Rehman, J. (as he then was), held that the wife could bring a suit for maintenance at the place where she was residing, as part of the cause of action arose at that place. Similar view was expressed in the other Lahore case relied upon by Mr. Khalilur Rehman.
8. We are in respectful agreement with the view taken in the two Lahore cases and the Karachi case, and in view of the fact that respondent No, 3 had been residing at Sukkur from September 1970, till 17-3-1975, when the present petition was filed, hold that she can be considered to be 'ordinarily resident of Sukkur' for the purposes of Rule 6 of the Rules framed under the said Act. This view of ours is further fortified by the fact that the petitioner in his written statement has conceded that the said respondent left for Sukkur along with her parents and that it was at Sukkur where he had been trying for reconciliation. A wife, who has been abandoned or turned out by her husband 15 days after her marriage, assuming that the allegations made by the wife against the petitioner are correct, would normally be expected to reside with her parents, wherever the parents happen to be for the time being. The residence of the parents would thus be her ordinary residence, so long as she is putting up with them. In the present case the parents were admittedly residing at Sukkur.
We, therefore, take the view that she was ordinarily residing at Sukkur.
9. For the reasons stated above, we find no merit in this petition, which is accordingly dismissed with costs.
(1) PLD 1952 Lah. 227 (2) PLD 1971 Lab< 886