It is a settled principle of law that in family matters, Court within local limits of which wife ordinarily resides, has jurisdiction to entertain dispute regarding same-- ~ Pakistan Family Law Case Laws

PLJ 2021 Lahore 130

Constitution of Pakistan, 1973--

----Art. 199--Family Court Act, (XXXV of 1964), S. 10(5)--Suit for dissolution of marriage--Ex-parte decreed--Jurisdiction-Challenge to--It is a settled principle of law that in family matters, Court within local limits of which wife ordinarily resides, has jurisdiction to entertain dispute regarding same--So far as other objection of petitioner that he was not properly served before proceeding against ex-parte is concerned, suffice it to say that proper address of petitioner was provided where notices were sent by Court before proceeding ex-parte against him and decreeing suit after his non-appearance--Court had satisfied itself that despite notices petitioner had not appeared and thereafter proceeded further in matter and decided same--Such findings are based on sound judicial principles--Non-availability of petitioner at his residence when notice was delivered is not sufficient to hold that his service had not been effected in given circumstances of case, especially when it is not denied that his address was correct--Court rightly recorded ex-parte evidence of respondent and on statement of respondent that she had developed hatred and could not live as wife of petitioner decreed suit--Impugned judgment passed by trial Court is based on proper appreciation of record and said findings are well founded warranting no interference and no exception can be taken to same--Petition was dismissed. [Pp. 131 & 132] A, B & C

PLD 2016 SC 613 ref.

Sh. Mushtaq Ali, Advocate for Petitioner.

Date of hearing: 2.5.2019.

PLJ 2021 Lahore 130

Present: Muzamil Akhtar Shabir, J.

Syed ABDUL HALEEM--Petitioner

versus

FAMILY JUDGE, FAISALABAD etc.--Respondents

W.P. No. 26284 of 2019, decided on 02.05.2019.

Order

Through this constitutional petition, the petitioner has called in question ex-parte judgment and decree dated 26.02.2019 passed by Judge Family Court. Faisalabad, whereby suit for dissolution of marriage filed by Respondent No. 2 (“respondent”) against the petitioner has been ex-parte decreed on the ground of khula under Section 10(5) of the Muslim Family Act, 1964 and the respondent has been directed to surrender 25% of her dower.

2. The learned counsel for the petitioner has argued that the Courts at Lahore and not at Faisalabad have the jurisdiction to try the matter and the petitioner had not been properly served before proceeding ex-parte, therefore, the decree for dissolution of marriage be set- aside.

3. Perusal of record shows that the petitioner had mentioned in the plaint her address of Faisalabad i.e. 29- X-29, Madina Town, Faisalabad and in paragraph No. 9 states that she is residing in Faisalabad. It is a settled principle of law that in family matters, the Court within the local limits of which the wife ordinarily resides, has the jurisdiction to entertain dispute regarding the same. Reliance in this regard has been placed on the judgment reported as Mst. Yasmeen Bibi vs. Muhammad Ghazanfar Khan and others (PLD 2016 S.C. 613). In the present case although the petitioner claims that respondent resides in Lahore but the respondent has claimed that she now resides in Faisalabad. Law does not provide for a wife to reside at a particular place for a particular period of time before it could be concluded that the wife ordinarily resides at that particular place before she could file a suit for dissolution of marriage and only the intention of the wife to reside there is important which is evident from her address given in the memorandum of plaint and Para No. 9 of the same. In view of the afore referred contents of the plaint, this Court has no reason to hold that the Court at Faisalabad lacked jurisdiction to entertain the suit

and decide the same, therefore, the said objection of the petitioner is turned down being baseless.

4. So far as the other objection of the petitioner that he was not properly served before proceeding against ex-parte is concerned, suffice it to say that proper address of the petitioner was provided where the notices were sent by the Court before proceeding ex-parte against him and decreeing the suit after his non-appearance. The Court had satisfied itself that despite notices the petitioner had not appeared and thereafter proceeded further in the matter and decided the same. Such findings are based on sound judicial principles. Non-availability of the petitioner at his residence when notice was delivered is not sufficient to hold that his service had not been effected in the given circumstances of the case, especially when it is not denied that his address was correct. The contention of the petitioner that suit could only be decreed after reconciliation proceedings have failed and in his absence no decree could be passed is negated by the fact that the said position of law would be applicable where the petitioner had entered appearance in the Court and Court had not provided opportunity of reconciliation but as the petitioner was not available in Court, non-adherence to the same would not be fatal. The Court rightly recorded ex-parte evidence of the respondent and on statement of the respondent that she had developed hatred and could not live as wife of the petitioner decreed the suit. The impugned judgment passed by the trial Court is based on proper appreciation of the record and said findings are well founded warranting no interference and no exception can be taken to the same.