This matter concerns the procedural handling of a written statement filed by a defendant in a suit for restitution of conjugal rights, specifically regarding claims for maintenance. The core legal question was whether a Family Court can simply discard a defendant's written statement containing a claim for maintenance upon the husband's withdrawal of his suit. The Peshawar High Court held that under the amended Section 9 of the Family Courts Act, 1964, a written statement filed in a family suit possesses the status of a plaint. Consequently, when a plaintiff withdraws a suit, the Family Court must treat the written statement as a plaint and the original plaint as a written statement, ordering the transposition of parties rather than dismissing the defendant's claims. The Court further held that if a husband fears difficulty in recovering interim maintenance should the suit be dismissed, the Family Court may require the wife to provide indemnity or surety bonds for the refund of such amounts, which can be adjusted against any final decree.
ORDER DOST MUHAMMAD KHAN, J.---Petitioner was a defendant in the earlier suit for restitution of conjugal rights. She submitted written statement, claiming maintenance with an additional prayer for interim maintenance allowance under section 17-A of the Family Courts Act which was allowed by the Family Court and ultimately this Court endorsed the view of the Family Court in a writ petition vide judgment dated 24-2-2009.
2. When the parties went back to the Family Court, the respondent-husband Withdrew his suit for restitution of conjugal rights and on its dismissal the written statement, filed by the petitioner, was also discarded and held not triable.
3. The Family Court shall clearly understand that after the amendments, introduced in the relevant provisions of section 9 of the Family Courts Act, 1964 by now the written statements filed by one or the other party in a family suit shall have the status of a plaint, therefore, in case, the plaintiff withdraw such suit then, the proper course for the Family Court is to treat the written statements as a plaint and the plaint as written statements and also to order the transposition of the parties, converting the status of the defendant to that of plaintiff and vice versa, however, the learned Judge Family Court failed to apply its mind and did not take a proper step rather permitted the course which was suggested to it by the respondent-husband.
4. Under the directions of the Family Court, the petitioner filed a fresh suit and also prayed for interim maintenance allowance which has been refused albeit, in the earlier case it was finally concluded in favour of the petitioner even by this Court in writ jurisdiction.
5. If the respondent is apprehensive that tomorrow if the suit seeking maintenance allowance is dismissed/ rejected then, recovery of the paid amount would become difficult thus, in that situation, the Family Court may obtain indemnity/surety bonds from the petitioner-were to pay back the amount received as interim maintenance allowance pending trial, to the husband while in case of decree, the same can be adjusted in the decreed amount.
Accordingly, this petition is allowed and the Family Court is directed to act strictly according to the above guidelines and to conclude the trial of the case within three (03) or at the most within four
(04) months..