IN THE HIGH COURT OF
SINDH, KARACHI
Const. Petition No. 110 of 2017
Noman Butt
.
.
Petitioner
Versus
Mst. Aqsa &
others
..
...Respondents
Date of Hearing: - 06.08.2018
Mr. Manzoor Hamid Arain, Advocate for the petitioner
Mr. S. Kh. Muhammad Azeem, Advocate for the respondent No. 1 & 2
J U D G M E N T
FAHIM AHMED SIDDIQUI, J: The present petition impugns the
judgment/order dated 10-02-2015 and decree dated 06-03-2015 passed by learned Family
Judge, Karachi South in Family Suit No. 221/2014 so also the subsequent Orders
dated 14-11-2014, 01-08-2016 and 23-12-2016 by the same court.
2.
Factual matrix of the case is that the marriage
of petitioner and respondent No. 1 was solemnised on 11-11-2012 at Gujranwala.
Out of said wedlock, a child (respondent No. 2) was born. After passage of some
time, the relationship between the parties became strained and as alleged by
Respondent No. 1, she was turned out after snatching her minor child. The
respondent No. 1 filed a petition of habeas corpus before the Sessions Court,
Gujranwala and succeeded in getting back the custody of her minor child.
Meanwhile, respondent No. 1 along with her minor child shifted to Karachi and
filed the aforementioned family suit for maintenance of herself as well as her
minor son Shahan Butt (respondent No. 2). She prayed maintenance amount for
herself at the rate of Rs. 75,000/- per month and Rs. 50,000/- per month for
her minor son. During pendency of the said family suit, respondent No. 1, being
plaintiff of said suit, filed an application under Section 17/A of Family
Courts Act for interim maintenance and trial Court allowed interim maintenance
vide order dated 14-11-2014 for her son Shahan Butt (respondent No. 2) at the
rate of Rs. 25,000 per month with direction to deposit the same with the Nazir of trial Court. As the aforementioned order of
interim maintenance was not complied with; therefore, vide order dated
10-02-2015, the defence of the petitioner (defendant of Suit No. 221/2014) was
struck off and ultimately the suit was decreed with direction to the petitioner
to pay maintenance for his minor child Shahan Butt (respondent No. 2) at the
rate of Rs. 25,000/- per month from the date of filing of the suit with an
increment of 10% per annum till his legal entitlement.
3.
The petitioner firstly challenged the decree
in an appeal, which was dismissed being not maintainable. The petitioner then
filed the instant petition in which he questioned the legality and propriety of
impugned decree.
4.
While pressing the instant petition, the
learned counsel for the petitioner submits that the very proceedings before the
trial Court is illegal and the same are Coram non-Judice.
In this respect, his contention is that the respondent No. 1 along with her
minor child i.e. respondent No. 2 used to reside in Gujranwala and she never
ordinarily resided in Karachi. According to him, it has come on the record that
she did not reside at the address given by her in the plaint of her suit filed
before the lower forum. He further submits that as per the provision under
Section 9 of the Family Courts Act, a suit for maintenance cannot be filed at a
place of ordinary residence and for filing of such a suit, it is necessary for
the plaintiff to approach the concerned Family Court at her place of permanent
abode. He submits that the petitioner was condemned unheard and being a
permanent resident of Gujranwala, he was unaware of the order passed by the
trial Court for interim maintenance as well as subsequent final order. He also
submits that the petitioner is a sufferer of improper legal advice by his
previous lawyer appearing before the trial Court. He further submits that the
petitioner is abiding by the interim maintenance order passed by this Court and
regularly paying such interim maintenance amount. He further submits that after
getting custody of minor through court, the respondent No. 1 never allowed the
petitioner to see his minor child. He submits that the petitioner tried to see
his minor child by filing a G. & W. Application at Gujranwala but
responding No. 1 made his efforts futile by taking a plea that the minor
(respondent No. 2) is not residing at Gujranwala but he is in Karachi. The
learned counsel for the petitioner points out that such plea of respondent No.
1 is false, as she had obtained a decree of KHULA from Karachi and thereafter
she remarried and now residing in a town nearby Gujranwala with her second
husband. He further submits that there are no close relatives of the respondent
No. 1 in Karachi, as such it is totally false that the
minor child is or was residing at Karachi.
5.
Regarding the merits of the case, the learned
counsel for the petitioner submits that the petitioner was not allowed to put
his side of case without considering the real and factual grounds. He submits
that the trial Court could not appreciate that the jurisdiction does not lie in
a court situated in Karachi. According to him, the petitioner was not provided
proper opportunity to defend his case and the matter was decided merely on
technicalities instead of merit. He submits that the right of audience was
denied to the petitioner and the trial Court remained oblivion from the fact
that the petitioner is residing in Gujranwala and the interim order was passed
in a hasty manner and behind the back of the petitioner. According to him, the
petitioner is a salaried person and earning meagre salary as such the amount of
interim maintenance fixed by the trial Court could not be deposited by him. He
emphatically submits that the petitioner is ready to deposit a reasonable
amount as maintenance, as he did so in the instant petition. According to him,
this Court when realises the financial position of the petitioner, came to the conclusion
that the amount of interim maintenance should not be more than Rs. 15,000/-and
when this amount was fixed by this Court, the same is being regularly deposited
by the petitioner. According to him, the quantum of maintenance can only be
fixed after going through the evidence produced during trial; therefore, the
case may be remanded back for trial on merits. The learned counsel relies upon KLR 1996 Civil Cases 265, 2017 CLC 8, PLD
2002 SC 452, PLD 2012 SC 66.
6.
As against the above, the learned counsel for
the respondent No. 1 prefers his submissions at length. According to him, both
the parties are belonging to industrialist families of Gujranwala and the
petitioner is well-off to maintain his minor child and being a member of
well-to-do family, the quantum of maintenance prayed by the respondent No. 1 is
not excessive. He submits that when relations between the parties became
strained, the respondent No. 1 faced serious threats from the petitioner and
his family and in such a situation no other option left with the petitioner but
to shift to some other place like Karachi. According to him, the close
relatives of respondent No. 1 are permanent resident of Karachi, as such she
felt herself more safe and secure in this town. According to him, as the place
of ordinary residence of the respondent No. 1 became Karachi; therefore, a family suit was filed here at
Karachi as per the provision under the Section 9 of the Family Court Act. He
submits that the notices were properly served upon the petitioner and he
himself participated in the proceedings; therefore, it cannot be said that he
had condemned unheard. He submits that the petitioner himself has filed a
family suit before the concerned Family Court at Gujranwala, which was returned
to the petitioner with observation that the said suit ought to be filed at
Karachi and such order was not challenged before any
forum. According to him, in such a situation, it has been established that the Family
Suit for maintenance was rightly filed and proceeded
at Karachi. However, the learned counsel for the respondents frankly offered
that the respondent would be satisfied if the interim maintenance fixed by this
Court during pendency of instant petition may be treated as final order
regarding maintenance of the minor. However, he submits that the past
maintenance should also be given by the petitioner even in reasonable
instalment.
7.
I have heard the arguments advanced and
scanned the material placed on record from either side. I have also scrutinised
all the orders passed by the trial Court in the light of valued submissions
made before me. As far as the contention of the learned counsel for the
petitioner that the trial Court lacks territorial jurisdiction, I am of the
view that it is not the case. The petitioner himself has approached the Family
Court, Gujranwala with a plaint of family case but the learned Family Court,
Gujranwala directed the petitioner to approach a court having jurisdiction at
Karachi. The petitioner did not challenge the verdict of Family Court of Gujranwala
before any forum. In spite of that the petitioner, in compliance of the
directions given by the Family Court, Gujranwala, approached the Family Court
at Karachi and presented his plaint of family suit, which is still pending
adjudication. From this conduct of the petitioner, it is obvious that he is
satisfied regarding the question of jurisdiction as decided by the Family Court,
Faisalabad. In such a situation, the petitioner is not allowed to reopen an
already settled question of law at this belated stage. Besides, the plea
regarding the jurisdiction raised by the petitioner is also not considerable on
the ground that the respondent No. 1 was competent to file a family suit from a
place where she was ordinarily residing. The contention of the petitioner that
as per Rule 6 of Family Court Rules, the respondent cannot file a suit for
maintenance from her place of ordinary residence. The learned counsel for the
petitioner has given much emphasis upon the proviso of Rule 6. In this respect,
the learned counsel for the petitioner has relied upon a case of this court
reported as Mst. Taj Muhallah alias Taj Bibi v/s Faquir Shah and another
(KLR 1996 Civil Cases 265).
8.
The case of Taj Bibi (supra) does not deal
with the matter of maintenance but the same pertains to dissolution of marriage.
In Taj Bibis case (supra),
the Family Court dismissed the suit filed by the petitioner Taj
Muhallah alias Taj Bibi on the ground that as per Rule 6, the court has no
territorial jurisdiction. In constitution petition, the matter was decided in favour
of Taj Bibi by observing that as per proviso of Rule 6, the Family Court cannot
refuse to exercise jurisdiction in a case of dissolution of marriage, if the
wife is ordinarily residing within its territorial limits. The learned counsel
for the petitioner tries to make it a great point by quoting such observation
of this Court in the case of Taj Mullah alias Taj Bibi (supra) by submitting
that since in the aforesaid proviso word 'maintenance' is not mentioned;
therefore, a woman cannot file a suit for maintenance for herself and for her
minor child from a place of 'ordinary residence'. I am of the view that it is
not the correct and proper legal position. There will be no fun in allowing a
woman to file a suit for dissolution of marriage and dower from the place of
her ordinary residence but she is not allowed to file a suit regarding maintenance
for herself and her minor children from the same place. In my humble view it
will be a mockery to force her to go another place for filing such suit. The
very Rule 6 of Family Court Rule, itself describing that a suit for maintenance
is very much competent for filing from a place of ordinary residence by a woman
against her husband. I would like to reproduce Rule 6, which reads as:
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 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.
9.
From the above provision of law, it is clear
that a family suit can be filed where the cause of action wholly or in part has
arisen or where the parties are residing as well as from the proviso, it is
clear that the suit can be filed by the wife from her place of ordinary
residence. If a woman is residing at someplace ordinarily after leaving or
expelling from the marital abode, she is empowered to file a suit for
dissolution of marriage etc. from the place where she was ordinarily residing.
It is also worth to mention that it is the duty of husband to maintain his
wife/children even if they are residing somewhere else ordinarily, hence the
cause of action for non-maintaining the wife and her minor children arises when
they were obliged to go to live at some other place ordinarily. Hence, a family
suit for maintenance can be filed by a wife even from a place of her ordinary
residence.
10.
Another aspect of the case is considerable.
It is fathomable that rules framed under some statute may provide certain
mechanism but they do not have overriding effect upon the statutory provision. As
per proviso under Section 7 of the Family Courts Act, a plaint for dissolution
of marriage may contain all claims including maintenance. Meaning thereby that
if a wife files a suit for dissolution of marriage from the place of her
ordinary residence, she may combine the prayer of maintenance along with other
prayers. If the contention of learned counsel for the petitioner is admitted
that Rule 6 of the Family Courts Rules does not allow filing of a suit for
maintenance from the place of ordinary residence, then it will be a
contradictory view as to a clear-cut statutory provision as provided under first
proviso of Section 6 of the Family Courts Act. In fact, Rule 6 of the Family
Courts Rules is a beneficial rule framed with intention to provide convenience
to a wife separated from her husband as such the relief given to a wife under
this rule cannot be stretched in favour of husband by forcing her to file a
suit for maintenance at his place of residence.
11.
It is also a noticeable factor in our society
that in the case of matrimonial disputes, it becomes harder for a wife to live
at a place nearby her in-laws. In some cases, it is nearly impossible for her
to live even in her parents house. It has been observed that after leaving the
marital abode, her husband teases and chases her and makes her life miserable.
It is the reason that the legislature has provided a scope to file a family
suit from a venue other than her permanent premarital address. It is not the
intention of the legislature to facilitate her only for filing a suit for the
dissolution of marriage and dower from the place of her ordinary residence.
From the above discussion, it is clear that a wife can file not only a suit for
dissolution of marriage but also she can claim maintenance for herself and her
children from a place of her ordinary residence. Hence, the objection of the
petitioner regarding jurisdiction is not considerable and it is decided that
the suit for maintenance was competently filed by the respondents at Karachi,
which was the place of ordinary residence of the respondent No. 1 at the time
of filing family suit.
12.
Now I am switching towards the present
controversy in respect of amount of maintenance. The respondent No. 1 is not
desirous to get maintenance for herself and she is only
claiming the maintenance for her minor child i.e. respondent No. 2 (Shahan
Butt). The contention of the petitioner is that the amount of maintenance for
his minor son, as fixed by the Family Court, is maximum and unbearable for him.
The learned counsel for the petitioner contends that although the petitioners
father is a businessman but the petitioner is independent to his father and
doing some private job and it will be difficult for him to make both ends meet
if the maintenance for his minor son is demanded @ Rs. 25,000/- per month w.e.f November 2014. It is worth mentioning that vide order dated 10-05-2018, this Court has fixed interim
maintenance @ Rs. 15,000/- w.e.f. May 2018 and the
same is being deposited by the petitioner. During course of arguments, the
learned counsel for the respondents graciously offered that the respondents
will be satisfied if the amount of interim maintenance fixed by this Court may
be treated as final maintenance amount for the minor son of the petitioner.
However, his anxiety is towards the payment of arrears as the trial court has
awarded maintenance since November 2014, learned counsel for the petitioner,
after consulting his client, positively reciprocated this gesture with equal
amiably. The learned counsel for the petitioner submits that his client is
ready to pay maintenance @ Rs.15,000/- per month but
it will be difficult for him to pay the amount of arrears at once.
13.
In the existing position of affairs, the instant petition is
dismissed with the modification in the impugned order regarding maintenance
amount for minor respondent Shahan Butt, which is payable @ Rs. 15,000/- per
month instead of Rs. 25,000/- since November 2014. However, the petitioner may
pay arrears of maintenance in four instalments spreading over a period of one
year.
Karachi
Dated _____________ J U D G E