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017 C L C Note 8

[Sindh (Hyderabad Bench)]

Before Mahmood A. Khan, J

Mst. BUSHRA SAEED and another—Petitioners

Versus

6th ADDITIONAL DISTRICT JUDGE HYDERABAD and 2 others—Respondents

C. P. No.S-696 of 2016, decided on 9th September, 2016.

 

Irfan Ahmed Qureshi for Petitioners.

Ghulam Haider Memon for Respondent No.3.

Ali Abbas Memon, State Counsel.

ORDER

MAHMOOD A. KHAN. J.—This constitutional petition is filed by Mst. Bushra Saeed for herself and on behalf of minor daughter Noorul Huda against learned VI-Additional District Judge Hyderabad, IV Senior Civil Judge Hyderabad and a private respondent Ali Raza son of Ghulam Hyder, challenging the appellate judgment dated 16.4.2016 as passed by respondent No.1 in Family Appeal No.18 of 2016 upholding the order dated 10.2.2016 as passed by the respondent No.2 in Family Suit No 1177/2015 returning the plaint of the petitioner under Rules 5 and 6 of West Pakistan Family Courts Rules 1965, the parties not objecting to its decision at this katacha peshe stage.

2. It is contended on behalf of petitioners that the family case was competently presented, whereon summonses were issued against respondent No.3 who filed written statement raising objection to the territorial jurisdiction along with an application under sections 5 and 6 of West Pakistan Family Courts Rules, 1965 (hereinafter referred to as the said application) praying therein for the return of the plaint on the ground that plaintiff was married at Karachi and lastly resided there and that she is still residing in Karachi, working in post office at Karachi. The petitioner filed her counter affidavit to said application denying the allegation and stated that she is permanently residing at Hyderabad with her family and her residence at Karachi was only for studies purpose. The trial Court as well as the Appellate Court however returned the plaint and upheld the decision violating the fundamental right of the petitioner.

3. It is further contended that the learned Courts have passed the impugned orders without considering that under the Family Laws it is for the female plaintiff to determine her ordinary residence. In furtherance of the arguments as to determination of the ordinary residence the learned counsel has relied upon the reported cases PLD 2016 SC page 613 Re: Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan, (2) PLD 1976 Karachi page 978 Re: Mahbub Ahmed v. First Additional District Judge and another (3) 2013 YLR page 400 Syed Nazim Hussain Zaidi v. IV Additional District Judge Karachi, (4) PLD 2001 Lahore page 188 Re: Syed Ziaul Hassan Gilani v. Mian Khadim Hussain and 7 others (5) 2010 CLC page 403 Re: Mst. Fozia v. Azizullah and 2 others, (6) 1997 CLC 742 Re: Mst. .Irshad Mai v. Additional District Judge and another (7) 1993 CLC page 1538 Re: Abdul Razak v. Mst. Rehana Akhtar and another and (8) 1991 CLC page 1078 Re: Rizwan Mahmood v. Collector and others along with Pakistan Citizenship Rule 4(1) and the meaning of the word residence in the Black Law Dictionary in order to establish distinction between residence and domicile.

4. On service respondent No.3 effected appearance and filed his objection to the petition, supported the concurrent findings and relied upon the contents of his pleadings before the learned trial Court along with Rules 5 and 6 of West Pakistan Family Courts Rules 1965. It is further contended that Family Suit was wrongly filed in order to cause monetory loss and harassment to the said respondent with unclean hands. It is also disclosed that the said respondent has filed Family Suit No.625 of 2016 for restitution of conjugal rights before the court of Family Judge-XX East at Karachi.

5. In the matter the learned trial court had passed the order dated. 10.2.2016 (hereinafter referred to as the said order) wherein contentions of the parties have been recorded and portion of the relevant law have been cited, as comprehended by the learned trial court and a distinction has been made in respect of suits for dissolution of marriage or dower, specially on account of 2nd proviso of section 7(2) of Family Courts Act, 1964. It is held therein, considering the contents of the counter affidavit to the said application said to not having denied working at the post office, CNIC old and new, including the presence of the minor (details of which otherwise had not come forward) that as the suit is for maintenance and recovery of dowry articles only, the plaint be returned referring to the following authorities;

i. PLD 2005 SC page 22-Mohammed Iqbal v. Perveen Iqbal, although the 2nd proviso is discussed therein.

ii. 2010 CLC page 403-Mst. Feroza v. Azizullah, a case discussing the Territorial Jurisdiction in dissolution of marriage being where wife resides.

iii. 2010 CLC page 405-Mureed Abbas v. Additional District Judge Tausa Sharif Dist. D.G. Khan, a case discussing rate of gold given in the nikahnama.

iv. 2012 MLD page 259-Mohammed Imran v. Family. Court Bhawalpur.

The learned appellate court also heard the parties and upholding the said order further quoted rules 5 and 6 of the Family Courts Rules, 1965 along with section 7(2) of Family Courts Act, 1964 and based its order to the understanding of legislation to be read in juxtaposition and to be interpreted in isolation.

6. As to the enactment under discussion the relevant portions of the same are quoted below;

Family Courts Act, 1964, section 7, second proviso to subsection (2) reads as under after amendment by the Ordinance of 2002 dated 01.10.2002;

Provided that a plaint for dissolution of marriage may contain all claims relating to dowry, maintenance, dower, personal property and belongings of wife, custody of children and visitation rights of parents to meet their children and

The jurisdiction of a Family Court is discussed in section 5 of the Family Courts Act, 1965 reads as;

5. (1), Subject to the provision of the Muslim Family Laws Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule.

The Schedule after the above referred amendment.

SCHEDULE

PART-I

[See SECTION 5]

1. Dissolution of marriage including Khula

2. Dower.

3. Maintenance.

4. Restitution of conjugal rights.

5. Custody of children and the visitation rights of parents to meet them

6. Guardianship.

7. Jactitation of marriage.

8. Dowry.

9. Personal property and belongings of a wife.

Whereas the relevant of The West Pakistan Family Courts Rules, 1965 are;

5. Where a plaint is presented to a Court not having jurisdiction-

(a) the plaint shall be returned to be presented to the Court to which it should have been presented;

(b) the Court returning the plaint shall endorse thereon the date of its presentation to it and its return, the name of the party presenting it, and a brief statement of the reasons therefor.

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.

(underlining made by me for emphasis)

7. The said amendment as such has brought in and made available to the Family Court, disputes earlier restricted to dissolution of marriage only without any classification and discrimination after the date of amendment to the wife where she ordinarily resides. The ordinarily resides in view of the authorities relied upon by the learned counsel of the petitioner is by her choice or circumstances as they may be. Reference in this regard can also be made to 2008 CLC page 850-Rana Zahid Saeed v. Judge, Family Court Sahiwal wherein the element of family laws being special laws is also discussed.

8. In the present matter following two elements have not been considered by the learned courts depriving the petitioner from obtaining justice in accordance with law being;

1. The relevant rule of interpretation simplified that the sections of a statute override the rules and not vice versa.

2. It is for the parties to present their cases as they deem fit and proper (of course within the limits as prescribed) and only after evidence it is open for a court of law to come to any definite conclusions/understandings.

9. As to the law it is not open to a court of law to restrict and create classification in the matter subsequent to the date of amendment. The substance of the matter being a controversy of place described as “ordinarily resides”, the petitioner being the wife is the best judge and where she claims to be the same as Hyderabad, the same can only be dislodged by her alone irrespective to the denials of anyone else, especially the respondent No.3 though he may have filed his own case for restitution of conjugal rights before another court (plaint of said suit for reasons best known to the said party has not been brought forward).

10. In my humble understanding there was never a lacking of jurisdiction to the family court at Hyderabad enabling return of the plaint and even if a dispute otherwise seemed present to the learned presiding officer the same could only have been decided after leading of evidence by the parties by taking the same as an issue only and findings available only after the parties have not gone through the said process on merits. In this regard I have put this question to the learned counsel to which the learned counsel reiterated their stand forgiven, however the learned state counsel conceded that the matters are liable to be decided on merits.

11. In the circumstances, this petition is allowed; the order of the VI-Additional District Judge Hyderabad dated 16.4.2016 in Family Appeal No.18 of 2016 and the Order of IV Senior Civil Judge Hyderabad dated 10.2.2016 in Family Suit No.1177/2015 of the petitioner are set aside. It is, however, upon the learned trial court to frame the issue in accordance with law based upon the pleadings of the parties, however, till the element is decided after evidence on the basis of the claims made by plaintiff the learned trial court is liable to be considered having jurisdiction. It is expected that learned trial court shall decide the matter in accordance with provisions and applicable law within time frame as required therein.

JK/B-15/Sindh Petition allowed.

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