ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

Civil Transfer Appln. No:  20 of 2009.

Date                          Order with signature of judge.

For Katcha Peshi.

26.1.2010.

                        Mrs. Leela @ Kalpana Devi, advocate for the applicant.

Mr.  Abdul Rehman Bhutto, advocate for the  respondent.

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                        The applicant and respondent contracted  free will marriage  on 28.1.2009.  Affidavit of free will marriage was executed in Larkana and in the affidavit of free will   address of the respondent/wife was  stated in the Taluka Ratodero Distt: Larkana.   Suit for  dissolution of marriage  i.e Family Suit No.34/2009 was filed  by the  present respondent  in the Court of learned 4^th Family Judge, Judicial Magistrate, Hyderabad.  That suit  is still pending.  This Civil Transfer Application has been filed with a prayer that  the suit  be transferred  from Hyderabad  to any Court in  Larkana.

                        Learned counsel for the applicant submitted that at the time of free will marriage  the respondent showed her address  as that of Ratodero and now she has been compelled  by the family members and has shown  address of Hyderabad.  She further states that the applicant apprehends danger to his life   if  he went to Hyderabad for defending  the suit.  

                        Mr.  Abdul Rehman Bhutto, learned counsel for the respondent  has placed on record  a  copy of order passed  by a Division Bench of this Court in C.P. No.D-888/2009  on 10.12.2009.  That petition  has been filed by the present respondent against her  husband and certain police officials.  Mr. Bhutto  further  submitted  that it is a settled provision of law that suit for dissolution of marriage   is to be filed in the Court  having territorial jurisdiction qua address of the wife  and not qua  the locale  of marriage or address of the husband.

                        I have considered  submissions   made by the learned counsel.  In the     Constitutional Petition filed before Circuit Court at Hyderabad on 10.12.2009 the following order has been passed:

                                    “The petitioner has appeared and states that she is living with her father out of her own free will.  It appears that the  Respondent No.1  who is the husband of Petitioner has lodged FIR No.113/2009 with Police Station Nau Dero, District  Larkana, against the father, brother and two other relatives of the Petitioner, inter alia on the ground that they have committed a theft.  The Petitioner further states that she has filed suit for dissolution of marriage and to pressurize her, a false Fir has been registered.

                                    We direct the office to issue notice to the  I.O  of Crime number referred to hereinabove, who should be in attendance on the next date with police papers as well as to the Additional A.G.  Notice may  also be issued to the Respondent No.1, who is the complainant of aforesaid crime.  No arrest shall be caused either by the I.O or by any other police officer in Crime No.113/2009 of P.S Nau Dero District Larkana.

                                    The D.P.O Larkana shall ensure that the Respondent No.1 and the I.O with police papers are present in Court on the next date.  Copy of this order be faxed to the D.P.O Larkana for compliance.

                                    To come up on 17.12.2009 when the petitioner shall be in attendance.” 

                        A perusal of the  order shows that there is FIR registered against the father, brother and two relatives of the present respondent No.1.  The constitutional petition has been filed by present respondent No.1  belying  such kidnapping.  The said Constitutional Petition is still pending at Hyderabad.  It is settled  law that in matters  relating to a dissolution of marriage  jurisdiction  lies with the Court having territorial jurisdiction in respect of residence for the time being of the wife.   As to where  nikah took place,  as to where girl was residing before or  after marriage, and as to where  husband and wife lived together,  has no bearing  whatsoever  in this regard.  In any case  the matter  before the D.B is pending at  Hyderabad  therefore, I do not see any reason   that  the matter  relating to the dissolution of marriage should be transferred out of Hyderabad.  This transfer application  is  therefore, dismissed.

                        Learned counsel for the applicant  states that the respondent has been forced by her family to abandon her husband and is being kept  at Hyderabad against her free will.  Learned counsel may direct her client to appear before  the D.B. at Hyderabad  and  make such submission there.

JUDGE