Heard. Perused the petition under section 16A of the 1985 Family Court Ordinance, the supporting affidavit in this regard, and the suit record. On such perusal, it appears to the court that this is a suit for restitution of conjugal rights. Through the present petition, the plaintiff prayed for relief in the name of ‘ad interim order’ against the defendants.
On perusal of the materials on record, it appears that a show-cause notice of 15 days has already been upon the defendants as to why the prayed relief is not to be granted against them under the provision of section 16A of the 1985 Family Court Ordinance. Nevertheless, the opposite party is found to be not making any response or reply to the show-cause notice to date. On the other hand, the petitioner again has placed a petition seeking an ad-interim order with a view to not allowing the opposite party to frustrate the purpose of the suit.
On consideration of the materials on record, it appears that there exists a valid marriage between plaintiff and defendant No. 01. Since the opposite party has neither present before the court nor places any written reply to date, the court does not find whether there is any existence of valid or lawful reasons, such as, cruelty, inability, or agreement for separate living, on the part of the opposite party. Hence, it is not possible for the court to assume that the opposite party is lawfully abstaining from living with the plaintiff.
In addition, the court is cognizant that the institution of marriage gives rise to the important right of ‘consortium’ which not only means living together but also implies a union of fortunes. A fundamental principle of matrimonial law is that one spouse is entitled to the society and comfort of each other. Thus where a wife or a husband, without lawful cause, refuses to live with her husband or his wife, they are reciprocally entitled to sue for restitution of conjugal rights and the fulfillment of his marital duties [vide Fyzee, 1974:121]. However, the right of either party is justiciable but not absolute; and the court has the discretion to pass an order in accordance with the established principles of law.
On perusal of the materials on record, it appears that the petition of the plaintiff has a good standing for demonstrating the existence of a valid marriage, and the absence of any disqualification on his part. In such a condition, it is thus the court’s view that unless the opposite party is given an ad-interim order, the purpose of the suit and the instant petition may be frustrated; and thus, the plaintiff appears to be prejudiced. In the background of such a condition and the nature of the instant case, the court is of the view that an ad-interim order may be issued against the defendants in the present context till the next fixed date.
Hence, it is ordered that an ad-interim order be issued against the defendants till the next fixed date. The defendants are hereby restrained from frustrating the purpose of the suit without lawful excuse.
Writs are to be put in at once.
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