SHAHNAZ KAUSAR Versus MUHAMAMD BOOTA

This is an application for transfer of the suit for restitution of conjugal rights instituted by respondent Muhammad Boota on 18‑1‑1981, against Mst. Shahnaz Kausar in Family Court, Toba Tek Singh, to the Court of Judge, Family Court, Wazirabad, District Gujranwala, where a suit filed by Mst. Shahnaz Kausar for dissolution of her marriage with said Muhammad Boota in pending since 14‑9‑1980.

2. The learned counsel for the petitioner has submitted that the two suits involve common questions of law and facts and, therefore, they should be consolidated and decided by one and the same Court to avoid conflicting judgments, and that suit of respondent husband should be transferred from Judge. Family Court, Toba Tek Singh to Judge, Family Court, Wazirabad, where her suit for dissolution of marriage against him is already pending. He has submitted that petitioner is a lady and would experience great incon venience in going to Toba Tek Singh to defend the case against her there. He has further submitted that Toba Tek Singh is not situate on the main line and in reaching there petitioner‑lady would have to change trains or buses at least twice which would result in great inconvenience to her. He has also submitted that the petitioner‑lady apprehends foulplay at the hands of respondent at Toba Tek Singh as respondent is a desperate person.

3. The learned counsel for respondent accepts that the two suits should be tried by one and the same Court but he has submitted that the main consider ation in the matter should be convenience of both the parties which lies in hearing of the two cases in a third place. He has cited the case of Mst. Sat Bhari v. Muhammad 1qbal P L D 1978 Lah. 993(1), to support this plea. 1, however, do not find anything in the case in hand warranting the transfer of the two cases to a third place with which none of the two parties has anything to do. It would rather contribute to the difficulties of the parties, as they would have to bring their witnesses to that third place. The case of Mst. Sat Bhari v. Muhammad Iqbal is not .in point as cases of opposing parties mentioned therein were transferred to a third district on the basis of consent of the parties.

4. As for the contention of learned counsel for the petitioner, that husband's suit for restitution of conjugal rights should be transferred to a Court where wife's suit is pending, I think the deciding factor in such case should be the convenience of the female. The law relating to family dispute exhibits far greater solicitude and concern for the convenience of the female than for the convenience of the males. This is made clear by proviso to rule of Family Courts Rules which reads as below :‑

"Rule 6.‑The Court which shall have the 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 parties resided together

Provided, that in suits for dissolution of marriage or dower, the .Court within the local limits of which wife ordinarily resides shall also have jurisdiction."

By this proviso the rigour of normal rule providing for territorial juris diction for trial of cases in Family Courts has been relaxed in favour of female filing a suit for dissolution of marriage or recovery of doer. It is clear that this has been done for the convenience of female upon whom the law has bestowed greater care. It would not, therefore, be wrong to attach more weight to the convenience of the female than to the convenience of the male while making orders for transfer of cases as well. It would be rather in line with the' said subordinate legislation. I am fortified in this view of mine by the recent case‑law on the subject. In case of Mukhtar Sultana v. Tasassaduque Hussain (1), wherein husband had filed his restitution suit earlier and had moved the High Court for transfer of suit for dissolution of marriage filed by the wife, it was held by Aftab Hussain, J. of this Court (now a Judge of Federal Shariat Court) that balance of convenience lay in trans ferring the suit for restitution of conjugal rights to the Family Court where the suit of the wife was pending. In case of Naz Perveen Malik v. Tassaduque Hussain (2) any learned brother Gulbaz Khan, J., held that females are generally put to great inconvenience if ordered to pursue suits at a greater distance. In case of Shahamad Beg v. Munawar Sultana (3) principle was laid down by my learned brother Muhammad Ilyas J. that normally in deciding the question of transfer of suits in Family Courts, more care is taken of the convenience of the female party. Similarly in case of Muhammad Akram v. Batool Begum (4) the request of husband for transfer of suit for dissolution of marriage filed by wife at another place to the Court where his suit for restitution of conjugal rights was pending, was not acceded to by the same learned Judge and on the other hand in suo motn exercise of his powers under section 25‑A of West Pakistan Family Courts Act, 1964, husband's suit for restitution of conjugal rights was transferred by him to the Court where dissolution suit of wife was pending. This was done expressly on the ground that more weight should be attached to a female's convenience than to that of the male. Petitioner is a Pardahnashin lady residing with her parents at Wazirabad. Toba Tek Singh is a far‑off place situated out of the way and to reach there she will have to change trains or buses twice. It is, therefore, obvious that she would experience great inconvenience and difficulty in going to the said place on every date of hearing and in taking her witnesses to that place. The respondent, however, is a male person and does not suffer from disabilities from which normally a lady suffers and the difficulties to be experienced by and inconvenience to be caused to him in pursuing his case at Wazirabad will be insignificant as compared to the difficulties and inconvenience to be caused to' the petitioner‑lady if she is compelled to defend case against her at Toba Tek Singh. I may add that in the circumstances of the case, he will have no difficulty in pursuing his case at Wazirabad as already another suit against him viz. one of dissolution of marriage is pending at Wazirabad and under all circumstances he has to go to Wazirabad to contest the said suit and since witnesses in two cases are most likely to be the same; he would have no difficulty in producing them in the suit for restitution of conjugal rights also at Wazirabad.

(1) P L D 1979 Lab. 34(1) (2) P L D 1979 Note 63 at p. 42

(3) 1980 C L C 351 (4) 1981 C L C 816

5. This does not end here. There is another circumstance on the basis of which the case of respondent‑husband for restitution of conjugal rights is liable to be transferred to the Court where petitioner‑wife's case for dissolution of marriage is pending and that circumstance is the apprehension by petitioner wife of foulplay at the bands of respondent‑husband if she is compelled to go and defend case against her at Toba Tek Singh. In case of Mst. Nasreen Akhtar v. Ali Hussain Naik P L D 1981 Lab. 51, my learned brother Muhammad Ilyas J. found it impossible to overlook such an apprehension on the part of wife and transferred husband's suit for restitution of conjugal rights to the Court where wife's suit for dissolution of marriage was pending. Petitioner has stated in her transfer application that she is a Pardaheashin' lady and has got no relatives at Toba Tek Singh and she apprehends foulplay at the hands of respondent‑husband as the respondent‑husband is a desperate type of person who bad' previously been involved in a murder case. There is no rebuttal to this averment made in 'the transfer application which is duly sup ported by an affidavit. Respondent has not come forward to controvert the said allegation and has filed no counter affidavit. In view of this circum stance the suit for restitution of conjugal rights of respondent‑husband should be transferred to the Court where petitioner‑wife's suit for dissolution of marriage is pending.

7. In view of all the above, 1 transfer the suit for restitution of conjugal rights of respondent Muhammad Hoota from the Family Court, Toba Tek Singh to the Family Court Wazirabad, where the suit for dissolution of marriage filed by Mst. Shahnaz Kausar is pending. s‑ A. H. Petition accepted