1996 PLP 1963 (CLC)

From the statements of the petitioner and respondent No. 1, it appears that both belong to Ahmadia Community.

4. Learned counsel has referred to section 5 of the Family Courts Act, 1964 which reads as follows:‑‑ "

5. Jurisdiction.‑‑Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961 the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule."

5. On the basis of section 5 of the Family Courts Act, 1964, the learned counsel submits that the provisions of Family Courts Act, 1964 apply only to the Muslims, therefore, the Judge Family Court who passed the decree in the present case did not have jurisdiction to decide the case relating to the dissolution of marriage of the parties who admittedly are the Ahmadis. He has also referred, to section 2 of the Dissolution of Muslim Marriages Act, 1939 and contends that the divorce can be obtained by, a lady professing Muslim faith on the grounds enumerated therein. Respondent No. l was not a Muslim, therefore, the grounds mentioned in section 2 of the Dissolution of Muslim Marriages Act, 1939 are not available to her. When asked whether an Ahmadi wife has the right to get divorce on the basis of Khula' under the personal law of Ahmadis Community; the learned counsel was unable to answer this question. He has not shown me any law relating to the Ahmadis providing that the Ahmadi wife cannot get marriage dissolved on the basis of Khula' according to their own law.

6. Learned counsel for the petitioner referred to the judgment of the learned Federal Shariat Court in "Sultan Ahmad v. Mst. Mehr Bhari and another" (PLD 1982 FSC 48) to contend that the Family Courts Act, 1964 does not apply to the Ahmadis who are not Muslims. The contention of the learned counsel is fallacious as in this very judgment, it is observed as follows: "We agree with the learned counsel that generally the provision of the Family Courts Act may be applicable to non‑Muslims also but the whole question is whether clause (a) of subsection (2) which makes specific reference to Dissolution of Muslim Marriages Act is limited to Muslims also caters to the dissolution of marriges of any non‑Muslim community living in Pakistan."

7. In this judgment the learned Federal Shariat Court has referred to many special laws such as Divorce Act, 1869; Christian Marriages Act, 1872; Parsi Marriages and Divorce Act, 1936; Native Converts Marriage Dissolution Act, 1866 and Anand Marriage Act, 1909 and observed that in these special enactments the special for a are provided.

8. Since there is no special enactment in field to cover dissolution of marriages of Ahmadis and no special forum is provided, the Family Courts Act, 1964 shall be applicable to them as well. This is strengthened by the fact that in section 1(2) of the Muslims Family Laws Ordinance, 1961 it is provided that "it applies to all Muslim citizens of Pakistan, wherever they may be," and the Preamble and section 2 of the Dissolution of Muslim Marriages Act, 1939 clearly states that it applies to Muslims only. However, there is no such provision in the Family Courts Act, 1964, the Preamble whereof declares as under:‑‑ "Whereas it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage .and family affairs and for matters connected therewith. "

9. No provision of the Family Courts Act, 1964, has been brought to my notice which makes it applicable exclusively to Muslims. The reference to the Muslim Family Law Ordinance, 1961 in section 5 of the Family Courts Act, 1964 indicates that the matters covered by and determinable under the Muslim Family Laws Ordinance, 1961 shall be dealt with according to that Ordinance and would not be tried and decided under the Family Courts Act, 1964. It does not mean, as argued by learned counsel for the petitioner, that by virtue of reference of Muslim Family Laws Ordinance, 1961 in section 5 of the Family Courts Act, 1964, the application of the latter enactment is excluded for non‑Muslims.

10. Admittedly the question of jurisdiction on the basis that the parties are Ahmadis, was not taken in the written ‑statement by the present petitioner nor was any issue claimed to that effect. However, learned counsel for the petitioner relying on Rashid Ahmad v. The State (PLD 1972 SC 271) contends that the question of jurisdiction can be raised at any stage of the proceedings and in this connection the production of the following passage of the judgment shall be useful:‑‑ "It has‑ been held by this Court in the abovementioned case that if a mandatory condition for the exercise of a jurisdiction before a Court, Tribunal or Authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction."

11. The principle enunciated by the Hon'ble Supreme Court is also not attracted to the present case as the petitioner before me has filed writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which is not the continuation of the proceedings of the suit under the Family Courts Act, 1964.

12. Since the petitioner participated throughout the proceedings of the suit before the Family Court and did not raise this objection and there is no finding by the Family Court, this question would not be permitted to be raised for the first time in the writ petition, especially when the correctness of this objection is doubtful. The whole effort of the petitioner appears to be mala fide. The petitioner having failed before the Family Court, wants to have the judgment and decree passed against him set at naught on this plea. The petitioner has no case on merits and learned counsel has rightly chosen not to argue the case on merits. This writ petition is accordingly dismissed in limine. A.A./M‑131/L ` Petition dismissed.