2009 PLP 2341 (YLR)

M.A. ZAFAR, J.

Brief facts of the case are that petitioner and respondent No.2 were married on 1-4-1993 in United Kingdom under the Marriage Act, 1949. The above said marriage was duly solemnized at the Register office with its Registration District being Kensington and Chelsea. Subsequently, on 5-4-1993 the Nikah between the spouses as per Shariawas performed at the Islamic Culture Centre Central Mosque London U.K. Both the parties holding Pakistani Nationality also got their marriage registered in Pakistan in April, 1993.

2. The parties could not pull on their marital tie and respondent No.2 filed a suit for dissolution of marriage and maintenance before the Judge Family Court at Lahore in which the present petitioner moved an application on 20-5-2008 under rules 5 and 6 of West Pakistan Family Court Rules, 1965, Order VII rule 10 read with section 151, C.P.C. for return of the plaint in which reply was filed by respondent No.2/plaintiff. The learned Judge Family Court vide impugned order dated 9-10-2008 dismissed the said application holding that the Family Court at Lahore has the jurisdiction to entertain the suit.

3. Feeling aggrieved from the order dated 9-10-2008 passed by the learned Judge Family Court, Lahore, petitioner has filed this constitutional petition praying for setting aside the said order and for return of plaint to respondent No.2/plaintiff.

4. Learned counsel for the petitioner submits that petitioner presented a divorce petition in the Principal Registry of Family Division of High Court of Justice in U.K. seeking dissolution of marriage but subsequently respondent No.2 apprehending that the institution of the petitioner's suit in U.K. and with a view to avoid the necessary consequence of dissolution of marriage under the applicable British Law resorted to filling of a suit for dissolution of marriage and maintenance at Lahore. He further submits that present suit filed two days prior to filing of suit by petitioner in U.K. was not in his knowledge and petitioner being in England had no notice and it cannot be said that petitioner filed the suit in U.K. as a counter blast to present suit. He further submits that the marriage was solemnized in U.K. and second Nikah in Pakistan was an exercise in futility; second Nikah over and above existing Nikah is not recognized in Islam nor in judicial separation. He placed reliance on case of "Hasham Sadar-ud-Din Ganji v. 2nd Addl. District Judge (South) Karachi and others 2002 CLC 1744. He further submits that the Family Court, Lahore has no jurisdiction to entertain the suit as the parties are residing in U.K. and their marriage was also solemnized in U.K. and they are also holding British Nationality. To support his submissions learned counsel has placed reliance on a case of Maqsood Ahmad Malik v. Mst. Fouzia Farhana Quddus and others 1991 SCMR 681 and on a case of Syed Ali Nawaz Girdazi v. Lt. Col. Muhammad Yousaf PLD 1963 SC 51 and contends that capacity to enter into marriage bond to be determined according to law of domicile of party concerned.

4. On the other hand learned counsel for the respondent No.2 submits that parties are Muslims and their marriage was solemnized under Islamic Law, therefore, irrespective of the fact where marriage solemnized Dissolution of Muslim Marriages Act, 1939 and Muslim Family Laws Ordinance, 1961 would apply. He further submits that despite holding dual Nationality of British and Pakistan, they have not lost their Pakistani Citizenship. Learned counsel further submits that jurisdiction to try suits for dissolution of marriage had been conferred upon Family Court by West Pakistan Family Courts Act, 1964 and is to be exercised with reference to that Act, which does not restrict its applicability only to citizens of Pakistan. He also placed reliance on case of Masood Ahmad Malik v. Mst. Fouzia Quddus and others 1991 SCMR 681 and Anil Musarrat Hussain v. Muhammad Anwar Nasim and 2 others 1996 CLC 1406 in support of his submissions. The learned counsel has also drawn my attention towards another suit for declaration with consequential relief filed by the petitioner in the Court of Senior Civil Judge, Lahore against the present respondent and in para. 19 of the said plaint it has been stated that the parties are residing at Lahore.

5. It is admitted position between the parties that Nikah between them as per Sharia was contracted at Islamic Culture Centre London U.K. on 5-4-1993 and the same was also got entered in Pakistan on 20th April, 1993. Both the parties are Muslims and hold dual Nationality, they being Pakistani are governed by the Provisions of Dissolution of Muslim Marriages Act, 1939, Muslims Family Laws Ordinance, 1961 and West Pakistan Family Courts Act, 1964 irrespective of fact as to where marriage solemnized. As held by the apex Court in case of Fazal Khitab v. Mst. Nahid Akhtar and another PLD 1979 SC 864 that if the parties are Muslims and their marriage was solemnized under Islamic' Laws than the rules of Islamic Law will apply to said marriage irrespective of the fact where the marriage was solemnized. In a case of "Mrs. Marina Jatoi v. Nuruddin K. Jatoi and another PLD 1967 SC

580. It was held that Muslim Family Laws Ordinance, 1961, which is apparently designed to cover "every marriage solemnized under Muslims Laws" as is said in section 5 thereof.

6. In case of Hasam Sadaruddin Gangi v. 2nd Additional District Judge (South) Karachi and others v. Muhammad Anwar Nasim 2002 CLC 1744 it was held that though both the parties were Canadian National and had lost their Pakistani citizenship but institution of a 'suit at Karachi was upheld. Proviso of rule 6 of West Pakistan Family Courts Rules, 1965 gives an option to a women to file a suit for dissolution of marriage or dower in the Court within the local limits of which she ordinary resides and in para 18 of the plaint it has been asserted by respondent No.2 about her residence in Lahore and even her residence in Lahore was not denied by the petitioner side specifically, rather the same is admitted by petitioner himself in another suit filed by him, which is pending between the parties in Civil Court in the said suit in para 19 it has been stated by petitioner that both the parties are residing at Lahore.

6. For the foregoing reasons there is no force in this petition and the same is accordingly dismissed. Learned trial Court is directed to decide the suit within three months. Compliance report be submitted through D.R. (Judicial). S.A.K./S-87/L Petition dismissed.