1996 PLP 1406 (CLC)

The dispute in this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of a suit for dissolution of marriage brought by respondent No.3 who is admittedly a Muslim National of Pakistan against the petitioner who is stated to be a citizen of United Kingdom. The. suit was contested by the petitioner by filing written statement in which an objection as to the jurisdiction of the Family Court to try this suit was also raised. During the course of hearing an application under Order VII, rule I 1 of Code of Civil Procedure was moved by the petitioner objecting to the resumption of the jurisdiction by the Family Court on the ground that the petitioner being not a citizen of Pakistan, the Punjab Family Courts Act, 1964 had no applicability and as such suit filed by respondent No.3 could not be tried by the Family Court.

2. This application was turned down by Family Court which took the view that as the marriage was performed at Lahore and respondent No.3/plaintiff was also residing at Lahore, the Family Court had jurisdiction to try the suit. It was further observed that as an issue with regard to the jurisdiction of the Court already stood framed and as such the application under Order VII, rule 11, Code of Civil Procedure does not lie.

3. The order of the Family Court was challenged by the petitioner by filing a revision petition which was dismissed on 14‑1‑1996 both on merits as also on the ground that a revision does not lie against the order of a Family Court.

4. In support of this petition Mr. Muhammad Saeed Ansari, Advocate has reiterated that as the petitioner is not citizen of Pakistan the Family Courts Act has no applicability and the suit for dissolution of marriage filed under the aforesaid Act was not competent. In elaboration of this contention, learned counsel has referred to section 5 of the Punjab Family Courts Act, 1964 which provides that the provisions of Muslim Family Laws Ordinance, 1961 which applies only to the Muslim citizens of Pakistan and ‑as such the Family Court lacked jurisdiction to try this suit. He has relied upon‑the pronouncement of Supreme Court of Pakistan in Masood Ahmad Malik v. Mst. Fouzia Farhana Quddus and others (1991 SCMR 681).

5. Mr. Sher Nawaz Shah, Advocate who has appeared on behalf of the respondent has, on the other hand, pointed out that there is nothing in the Punjab Family Courts Act, 1964 which restricts its application only to the citizens of Pakistan. He maintained, to any case, as the respondent‑plaintiff was admittedly a citizen of this country the Family Courts could try the suit for dissolution of marriage brought by her. The learned counsel has also relied upon the same judgment of the Supreme Court of Pakistan which has been cited by the petitioner's learned counsel

6. It is to ‑be seen that the learned Family Court had rejected the application under Order VII, rule 11 of Code of Civil Procedure on two grounds. Firstly that contention that the Family Courts have no jurisdiction was not correct and secondly as an objection was taken in the written statement by the petitioner and an issue already stood framed the application is not maintainable. Both these grounds are unexceptionable.

7. There is nothing in the Punjab Family Courts Act, 1964 which confines its applicability only to Muslim citizens of Pakistan. The learned counsel for the petitioner, however, attempted to argue that in view of section 5 of the Punjab Family Courts Act, 1964, Muslim Family Laws Ordinance, 1961 becomes applicable to proceedings under the latter Act and as the Muslim Family Laws Ordinance, 1961 applies only to Muslim citizens of Pakistan the same position holds good in respect of proceedings under the Punjab Family Courts Act, 1964.

8. This contention of the learned counsel has no force. As observed by the Supreme Court of Pakistan in Masood Ahmad Malik's case (supra) the two enactments viz. Muslim Family Laws Ordinance, 1961 and the Punjab Family Courts Act, 1964 are not only independent of each other but they operate in different fields and have different scope. Section 5 of the Punjab Family Courts Act, 1964 on which reliance has been placed by the petitioner's learned counsel does not in any manner advance his case for it only provides that the provisions' of Punjab Family Courts Act, 1964 shall be subject to the provisions of Muslim Family Laws Ordinance, 1961, meaning thereby that in the event of any conflict the Muslim Family Laws Ordinance, 1961 would prevail but there is no basis for the assumption that all proceedings under the Punjab Family Courts Act, 1964 are governed by the Muslim Family Laws Ordinance, 1961. The jurisdiction to try the suit for dissolution of marriage is conferred upon the Family Courts by the Punjab Family Courts Act, 1964 and is as such to be decided with reference to that Act which does not restrict its applicability only to citizens of Pakistan.

9. The reliance of the learned counsel on the case of Masood Ahmad Malik (supra) is misconceived for in that case the question before the Supreme Court was as to whether the suit' can be filed for dissolution of marriage by the parties who were citizens of a foreign country where marriage itself had taken place. The answer to this question was rendered by the Hon'ble Supreme Court in negative. Be that as it may, the aforesaid case is clearly distinguishable as there both the parties were residents of United States of America where they had married. In the present case admittedly plaintiff‑respondent is citizen of Pakistan and the marriage was solemnized at Lahore.

10. The other ground on which the application was rejected is equally well founded. As the issue in respect of jurisdiction already stood framed in the suit there was no occasion to make an application under Order VII, rule 11, Code of Civil Procedure which was obviously not maintainable. In view of what has been stated above this petition is found to be without any force and is dismissed in limine. A.A./A‑17/L Petition dismissed.