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2019 M L D 720

[Sindh]

Before Salahuddin Panhwar, J

ZAHID HUSSAIN—Petitioner

Versus

Mst. FARHANA—Respondent

C. P. No. S-1470 and C.M.As. Nos.5941, 5942 of 2015, decided on 21st February, 2018.

Rafiq Ahmed v. Judge Family Court 1996 CLC 1820 ref.

Muhammad Ali Waris for Petitioner.

Date of hearing: 21st February, 2018.

ORDER

SALAHUDDIN PANHWAR, J.—Through instant petition; petitioner has challenged the Khulah granted by Family Judge-X, Karachi, Central, on 07.04.2015 in Family Suit No. 2118 of 2014 [Re: Mst. Farhana v. Zahid Hussain].

At the outset, learned counsel for the petitioner contends that trial Court was hot competent to pass such order as respondent No.1 (Mst. Farhana) was not residing within the jurisdiction of Civil and Family Judge-X, Karachi, Central therefore, judgment is coram non judice and so is liable to be declared so.

The deliberate use of the phrase ‘ordinarily resides’ in providing clause of Rule 6 of the West Pakistan Family Courts Rules, 1965 is an exception which has been confined to the ‘wife’ alone. An ‘ordinary residence’ must not require proof as would be for permanent residence. It is deliberate, keeping in view of agony of the woman who, on being ousted by husband, sometimes does not find shelter in house of parents. The right to claim ‘Khula’ as well ‘dower’ are absolute rights of ‘wife’ which legally cannot be resisted if the ‘wife’ persists to such claim. Such entitlement thus were not deliberately subject to a proof of permanent or long residence but a claim of stay of few days even would be enough for the wife to file a suit for dissolution of marriage or dower only. The phrase ‘ordinarily resides’ was defined in a case of Rafiq Ahmed v. Judge Family Court 1996 CLC 1820 as:

“The expression “ordinarily resides” does not necessary mean that the residence should be long in point of time, residence for a few days is enough. The Court has to see the place where the female has chosen to stay regardless of whether she is a permanent resident of the place, whether she has property over there or the length of time she has resided there.”

A claim of ‘ordinarily resides’ would not be required proof of the standard which normally is necessary for a disputed fact but a claim on Oath shouldered by independent support would be sufficient. However, the perusal of the available record shows that petitioner (husband), on being served with the notice; caused his appearance and had filed objections that his wife is not residing within the territorial jurisdiction of that Court. Such objection was properly attended and on such application with regard to site inspection, learned trial Judge appointed Mr. Nisar Ahmed as Commissioner to visit the site and submit report specifying that whether respondent No.1 (wife of petitioner) is residing on same address as shown in the family suit. He submits photocopy of commissioner’s report. Paragraph No.2 of that report being pertinent is reproduced herewith:

“It is pertinent to mention here that the undersigned commissioner collected the information from the neighborhood as well as witness i.e. Yasir Ali son of Irshad Ahmed Khokhar and Jan Muhammad Mastoi son of Mir Muhammad who has been disclosed that the plaintiff is residing at the address mentioned in the Plaint and also in the said house as shown in the plaint, now a days the plaintiff is residing when she come in Pakistan then reside in the said house.”

Though, counsel contends that he had filed objections over the report but it would suffice to say that the claim of wife regarding her ordinary residence since was backed by above inquiry (physical verification from neighbours) was rightly taken as sufficient proof to take cognizance into the matter. Further, it would be pertinent to mention that in suits of Khula it is held in many judgments that temporary even one day residence is sufficient to seek such relief and that proposition of law is now has taken status of stare decisis, hence, the counsel’s objections over this Khula with regard to jurisdiction is not maintainable.

Since, respondent No.1 filed suit seeking Khula and such suit was allowed by aforesaid order. Being relevant paragraph No.4 of that order is reproduced herewith:

“In view of above position, I do not find the probability of reunion of parties and in circumstances, it would not be in the interest of justice to deprive the plaintiff from right of Khula. Hence, I hereby dissolve the marriage of plaintiff with defendant by way of Khula in lieu of her dower Rs.50,000/- which according to record has not been paid to her. However, this Khula shall not be confirmed unless plaintiff shall serve the copy of this order under sections 7(1) and 8 of Muslims Family Laws Ordinance, 1961 upon Incharge of the Union Council within the limits of which she ordinarily resides and said Incharge within the thirty days of the receipt of such order shall constitute an Arbitration Council under sections 7(3) and 8 of the same Ordinance for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.”

It is not the claim of the petitioner that the conclusion of learned lower court to the effect that ‘there is no probability of reunion of parties’ hence in absence thereof the Khulla, granted by Family Court, on request of the wife cannot be said to be illegal which (khulla) otherwise has to be granted where reconciliation fails and Haq Mehar, if received is returned, or if not received is waived.

With regard to second plea that the compliance of sections 7 and 8 of Muslim Family Laws Ordinance, 1961, is yet to be made that is up to the trial Court and the same is formality. Petitioner (husband) cannot pursue her with regard to that procedure, since khula is already granted and there is no other option to deprive the respondent No.1 from her right, which is completely her choice under Islam as well land laws as opined by apex Court as well this Court. Petition is dismissed.

MQ/Z-1/Sindh Petition dismissed.