----R. 6--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Territorial jurisdiction of Family Court--Application for dismissal of suits on ground of lack of territorial jurisdiction--Challenge to--Validity--A wife can file a family suit at a place of her residence and there arises no question of residence of her ex-husband in such like suits--Even it does not appeal to prudent mind that a plaintiff's wife, who is a lady, will file a suit at a place which is far off from a suit at a of residence which might cause more hardships to herself rather than to her husband who can move in society freely and more easily as compared to counterpart--Trial Court had rightly dismissed applicants to dismiss the suits on account of lack of territorial jurisdiction--No interference was called for--Petition was dismissed. [Pp. 203 & 204] A & C
Family Court Act, 1964 (XXXV of 1964)--
----S. 17-B--No law for appointment of local commission for ascertainment of place of residence of a lady in a family suit--It is discretionary upon family Court to appoint a local commission to examine any person or to make a local investigation and inspect any property or document but at same time, it is obligation of a party who arrests some fact to prove same through production of evidence and local commission cannot be appointed to collect evidence or to prove or disprove assertion of a party--Petition was dismissed. [P. 203] B
Mr. Hameed-uz-Zaman, Advocate for Petitioner.
Mr. Zahid-ur-Rehman Tayyab, Advocate for Respondents.
Date of hearing: 17.9.2013
Syed ASIF HUSSAIN--PetitionerversusJUDGE FAMILY COURT etc.--Respondents W.P. No. 5524 of 2012, heard on 17.9.2013.
Judgment
Through this writ petition, the petitioner has assailed the order dated 20.09.2012 passed by learned Judge, Family Court, Bahawalpur whereby the applications of the petitioner for dismissal of the suits on account of lack of territorial jurisdiction and for appointment of a local commission for ascertainment of place of residence of the respondent-plaintiff was dismissed. The said applications were filed by the petitioner in suits filed by the respondents for recovery of dower, dowry articles and maintenance allowance.
2. Learned counsel for the petitioner inter alia contends that the learned Judge Family Court had no territorial jurisdiction to entertain the suits of the respondent-plaintiff as these were not filed for dissolution of marriage but for recovery of dower, dowry articles and maintenance allowance. He asserts that without prayer for dissolution of marriage, the suits for recovery of dower, dowry articles and maintenance allowance could not be filed at Bahawalpur because both the respondent and the petitioner were residing in Tehsil Ahmedpur Sharqia. He contends that the learned trial Court has wrongly dismissed the application of the petitioner for appointment of a local commission for determination of place of residence of the plaintiffs. He argues that in order to reach a just and proper conclusion, the trial Court should have appointed a local commission as the plaintiffs have shown their incorrect address in the plaint. He prays that the impugned order be set aside, the applications of the petitioner be allowed and the suit of the petitioner be dismissed on ground of lack of territorial jurisdiction. In support of his assertions, learned counsel for the petitioner has relied upon the law laid down in case titled "Shahzad Hussain vs. Judge Family Court, Lahore and two others (2011 CLC 820)."
3. On the other hand, learned counsel for the respondent-plaintiff submits that the respondent-plaintiff has shown her correct address and she is residing in Islamia Colony, Bahawalpur. He asserts that under the family laws, a wife can file a family suit at a place of her residence and it is not necessarily to be filed at the place of residence of her husband ex-husband. He further asserts that there is no law for appointment of a local commission for ascertainment of place of residence of a lady plaintiff in a family suit. Learned counsel for the respondent submits that the evidence of plaintiff has already been concluded whereas the evidence of petitioner-defendant is yet to be recorded. He avers that moving of applications at such a belated stage is nothing but a mere attempt to linger on the matter. He submits that the applications in question were without any merit and were rightly dismissed by the trial Court.
4. Arguments heard. Record perused.
5. Scanning of record shows that initially, three suits for recovery of dowry articles, haqul mehr and maintenance allowance were filed by the respondent and two minor children of the petitioner. All these suits were tried together through consolidation. Subsequently, a suit for restitution of conjugal rights was filed by the petitioner at Ahmerpur Sharqia. On application of the petitioner-defendant to transfer the suits of the respondent-plaintiff from Bahawalpur to Ahmedpur Sharqia, the learned District and Sessions Judge, Bahawalpur transferred the suit of the petitioner-defendant from Ahmedpur Sharqia to Bahawalpur vide order dated 18.01.2012 which order was not assailed by the petitioner before any competent forum. The suit of the petitioner was also consolidated with the suit of the respondent, consolidated issues were framed and consolidated evidence of the respondent-plaintiff was recorded till 21.07.2012. Afterwards, the petitioner moved application for dismissal of the suits on the ground of lack of territorial jurisdiction. He also filed an application for appointment of a local commission to determine the place of residence of the respondent-plaintiff. Both the applications were dismissed by the learned trial Court vide order dated 20.09.2012 which has been assailed by the petitioner before this Court.
6. As regards the contention of learned counsel for the petitioner that the Family Court at Bahawalpur had no territorial jurisdiction as the children of the respondent are statedly studying in Ahmedpur Sharqia is misconceived. The respondent has categorically asserted in the plaint and has submitted while appearing as her own witness that she is residing at Bahawalpur. Mere statement of one witness that the minors are studying at Ahmedpur Sharqia cannot oust the territorial jurisdiction of Family Court at Bahawalpur. Evidence of the petitioner/defendant is yet to be recorded who may produce his evidence to prove that the respondent is not residing at Bahawalpur which will be dealt with by the trial Court in accordance with law.
7. Under Rule 6 of West Pakistan Family Court Rules, 1965, the territorial jurisdiction of the Family Court has been specified as under:
"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." (underline is mine)
8. In view of the above, I am of the considered view that a wife can file a family suit at a place of her residence and there arises no question of residence of her husband/ex-husband in such like suits. Even it does not appeal to a prudent mind that a plaintiff wife, who is a lady, will file a suit at a place which is far off from her ordinary place of residence which might cause more hardships to herself rather than to her husband/defendant who can move in the society freely and more easily as compared to his counterpart.
9. As regards the question of appointment of a local commission, it is discretionary upon the family Court under Section 17-B of West Pakistan Family Court Act, 1964 to appoint a local commission to examine any person or to make a local investigation and inspect any property or document but at the same time, it is the obligation of a party who asserts some fact to prove the same through production of evidence and local commission cannot be appointed to collect the evidence or to prove or disprove the assertion of a party.
10. The learned trial Court has rightly dismissed the applications of the petitioner to dismiss the suits of the respondent-plaintiffs on account of lack of territorial jurisdiction. Learned counsel for the petitioner has not been able to point out any illegality, irregularity or infirmity in the order impugned which can be interfered with by this Court in its extraordinary constitutional jurisdiction. The law relied upon by learned counsel for the petitioner is also not applicable to the case in hand. No interference is called for.
11. In view of the above, this writ petition is without any substance. The same is dismissed.
(R.A.) Petition dismissed
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