2001 PLP 1072 (CLC)

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑ This appeal has been preferred against the judgment and decree of the Shariat Court, dated 13‑3‑2000, whereby the appeal filed by the appellant, herein, was dismissed and the judgment and decree of the Family Court dismissing the suit for the restitution of conjugal rights filed by the appellant was upheld.

2. The brief facts of the case are that the appellant and respondent No.l were married on 20‑11‑1992 in lieu of dower Rs.50,000 at Bankhurman; District Mirpur, Az4d Kashmir. The appellant filed a suit in the Family Court, Mirpur, alleging that the respondents Nos.2 and 3, the parents of respondent No.l, had promised, that they would arrange Rukhsati' of respondent No.1 within a period of three months but subsequently they took her to England and despite his efforts, Mst. Shazia Qayyum, respondent, refused to live with him as his wife and to perform marital obligations; her parents also refused to send her with him. Thug, the plaintiff‑appellant filed a suit for the restitution of conjugal rights against the respondents who filed a joint written statement in the Family Court stating that Mst. Shazia Qayyum had obtained a decree for dissolution of marriage from Middlesborough County Court, United Kingdom, and she was also making efforts for the dissolution of marriage on the basis of 'Khula', for which she had initiated proceedings before the Islamic Council functioning in the United Kingdom. The Family Court framed six issues in light of the pleadings of the parties and after trial held that the decree for dissolution of marriage obtained by the respondent was not conclusive and binding upon the plaintiff‑appellant but all the same dismissed the suit filed by the plaintiff‑appellant on the ground that it had no jurisdiction to hear the suit. An appeal was filed by the plaintiff‑appellant to the Shariat Court against the findings of the Family Court. The Shariat Court accepted the contention of the plaintiff‑appellant that the Family Court had the jurisdiction to hear the suit but despite that dismissed the appeal observing that in view of the circumstances of the case, it was not possible for the parties to live together as husband and wife and, thus, a decree in favour of the plaintiff‑appellant could not be passed. It is against the aforesaid judgment and decree of the Shariat Court that present appeal has been preferred to this Court.

3. In view of `the peculiar nature of important points involved in the case, in addition to the learned counsel for the parties we issued notices to Mr. Muhammad Sharif Tariq, Ch. Muhammad Azam Khan and Ch. Riaz Alam, Advocates, to assist the Court and have heard them in the matter.

4. It has been contended by Ch. Liaquat Ali Khan, Advocate; the learned counsel for the appellant, that the Shariat Court has committed an error by refusing to pass a decree for restitution of conjugal rights in. favour of the plaintiff‑appellant. He has argued that under the Muslim Law; the wife is bound to live with her husband and perform her marital obligations, provided it is not shown that she was prevented from doing so on the grounds recognised by the Muslim Law. The learned counsel has contended that in the instant case, no ground recognised by the Muslim Law has been pleaded barring the appellant from obtaining a decree for the restitution of conjugal rights against the respondent; rather the case of the respondent is that despite her efforts, the plaintiff‑appellant was not issued visa to reside in United Kingdom by the concerned authorities in United Kingdom and, thus, she was obliged to get decree of dissolution of marriage from the County Court in United Kingdom. The learned counsel has contended that the decree for dissolution, of marriage passed by the County Court is nullity in the eye, of law because the plaintiff‑appellant is neither a citizen of United Kingdom nor he ever lived there or submitted himself to the jurisdiction of the said Court. Thus, according to the learned counsel, the said decree has no legal value. The learned counsel has further submitted that even otherwise, the decree for dissolution of marriage passed by the County Court being violative of Private International Law and having not been passed according to the Muslim Law which governs the parties, is nullity in the eye of law and is not a valid ground for refusing a decree for the restitution of conjugal rights to the plaintiff‑appellant against the respondent.

5. In reply, Ch. Abdul Aziz, Advocate, the learned counsel for the respondents, controverted the arguments advanced by the learned counsel for the appellant and relied upon an unreported judgment of this Court entitled Tariq Mahmood v. Mst. Zarda Begum (Civil Appeal No.30 of 1995, decided on 26‑6‑1995), whereby the suit for restitution of conjugal rights filed by the husband was dismissed on the ground that a decree for the dissolution of marriage had been passed by a Court in United Kingdom in favour of the wife. He has contended that in view of the principle enunciated in the aforesaid case, the decree for dissolution of marriage passed in favour of respondent No.1 by the British County Court should be upheld and the order of dismissal of the suit for the restitution of conjugal rights filed by the plaintiff‑appellant should be maintained.

6. Mr. Muhammad Sharif Tariq, Advocate, who appeared as an amicus curiae, has submitted that the decree passed by the County Court in England cannot be recognised by this Court in view of the principles of Private International Law. He has further submitted that the decree having not been passed in pursuance of the personal law of the parties applicable to them, is not a valid decree and is not binding on the appellant.

7. Ch. Muhammad Azam Khan and Ch. Riaz Alam, Advocates, submitted that the view taken by this Court in the unreported case, relied upon. by the learned counsel for the respondents, referred to above, should be followed and , the judgments passed by the Courts below should be maintained.

8. We have given due consideration to the arguments raised at the Bar. It may be stated at the very outset that the defendant‑respondent led no evidence in rebuttal of the evidence adduced by the plaintiff‑appellant in the trial Court. She appeared in the Family Court through her counsel who placed or record Exh.D.A. in support of her contention that as a decree for the dissolution of marriage of the parties was passed by a British Court, the suit filed by the appellant might be dismissed: It is also evident from what has been stated above, that the defendant‑respondent has no complaint against the plaintiff‑appellant justifying the dismissal of his suit. According to her she tried hard to obtain the entry visa for the appellant from the concerned authorities in United Kingdom but she failed and, thus, was obliged to seek the decree for dissolution of marriage from the County Court in United Kingdom. It hardly needs any argument that under the Muslim Law as long as the marriage between the parties subsists and there is no allegation of maltreatment against the husband or any other ground recognised by the Muslim Law for living separately from her husband, the wife is bound to live with her husband and perform her marital obligations. Thus, a decree for the restitution of conjugal rights cannot be denied to the appellant on the ground that the defendant‑respondent did not wish to reside with him in Azad Kashmir or he was not issued; visa by the British Authorities.

9. The next question which needs resolution is as to whether the English County Court had the jurisdiction to pass a decree for dissolution of marriage in favour of the defendant‑respondent. It may be stated that the authority. of this Court entitled Tariq Mahmood v. Mst. Zarda Begum, referred to above, is distinguishable; in that case both the husband and wife were citizens of United Kingdom and the decree for dissolution for marriage was challenged on the ground that it was violative of recognised principles of Private International Law and the personal law of the parties. It was held by this Court that the plaintiff who sought the decree for the restitution of conjugal rights could not show that the decree for dissolution of marriage passed in favour of the wife by the English Court was either passed in violation of personal law of the parties or the same was against the Private International Law. In the instant case, it is admitted by the parties that the plaintiff‑appellant was neither a citizen of United Kingdom nor he ever lived there or submitted himself to the jurisdiction of the English Court. The relevant extract from the aforesaid judgment is reproduced as under:‑‑‑ "The next point argued by the learned counsel for the appellant is that the Court which passed the decree did not apply the personal law of parties while passing the decree in question. Under section 13‑C of C.P.C. a foreign judgment and decree would not be conclusive if it is shown that the proceedings were founded on incorrect view of international law or the Court which passed the decree refused to recognise the law of Pakistan in cases in which such law was applicable. In the instant case, irrespective of the fact that the parties were British national at the relevant time it has not been shown that the decree is based on incorrect view of international law or the Court refused to apply personal law of the parties in the proceedings before it. The mere averment made in the plaint that while passing the decree the personal law of the parties gas not considered, is not proof of the fact that it was so especially so when the appellant failed to appear as witness in the case." It is evident from the extract reproduced above that the facts of the case relied upon by the learned counsel for the respondents are distinguishable and the said judgment is not applicable to the present case. In the instant case, the County Court, had no jurisdiction to pass the decree against the plaintiff‑appellant because he was neither citizen nor he ever resided in the United Kingdom. Therefore, we are of the considered view that the English Court had no jurisdiction to assume the jurisdiction in the present case. A reference may be made to the following authorities in support of the view:‑‑ In a case reported as Swindells & Sons v: Haji Muhammad Abdullah PLD 1957 Kar. 933, it has been held that the Courts in Pakistan were competent to go into the question as to whether the Queen's Bench Division, Liverpool, had the jurisdiction in the matter or not. It was further observed that a foreign Court has no jurisdiction over non‑resident Pakistani subject even if there is law legislated by the British Parliament in that regard; The relevant observations made by the Court are reproduced as under:‑‑‑ "It is clear from the above definition of 'foreign Court' that Courts in England are foreign Courts. The question, however, remains whether the British Courts would have jurisdiction as provided under Order XI, rule 1 of the Supreme Court Rules of England. In answer to this question a reference may be made to what has been reproduced above from the commentary on the Civil Procedure Code, by Mulla. After the establishment of Pakistan as an independent country, the British Parliament cannot legislate for Pakistan, and therefore it cannot confer jurisdiction on Courts in England over non‑resident Pakistani subjects." In a case reported as Maryam Bibi v. Muhammad Iqbal PLD 1976 Azad.J&K 9, after discussing the case‑law on the subject, it has been held that it is settled law that a foreign Court is not legally competent to pass a decree against a person who does not reside within its territorial jurisdiction and is out of its reach; however, it was observed that foreign Court would have jurisdiction only if the defendant voluntarily submits himself to its jurisdiction and contests the case against him. In a case reported as Ghulam Ahmad v. Dr. Sarosh Rattanji Wadia PLD 1959 Kar. 624, it has been held that if the defendant neither have place of business in the jurisdiction of a foreign Court nor voluntarily submits himself to its jurisdiction, the Court would have no jurisdiction to hear the matter. Consequently, the decree passed by Bombay Court against the defendant who was resident of Karachi (Pakistan) was held without jurisdiction. In a case reported as Ramkisan Jankilal v. Seth Harmukharai Lachminarayan AIR 1955 Nag. 103, it has been. held that a foreign Court has no jurisdiction to pass a decree against a defendant who does not reside within its territorial jurisdiction even if the contract was entered into between the parties in the territorial jurisdiction of such foreign Court. In a case reported as Andhra Bank Ltd. v. R. Srinivasan AIR 1962 SC 232, it has been observed that it is well‑settled principle of Private International Law that all personal actions must be filed in the Court of the country where the defendant resides. However, where a suit is initially filed in the country where defendant resided but subsequently on his death one of his legal representatives was found to be residing out of the territorial jurisdiction of the Court, the jurisdiction of the Court would not be adversely affected. It may be observed that the Exh.D.A. does not show the ground on which the decree for dissolution of marriage was passed. The matter could only be explained by the defendant‑respondent but she did not appear as a witness in the Court and, thus, it cannot be said as to whether the decree was passed in pursuance of the personal law of the parties or not. As the defendant‑respondent resisted the suit filed by the plaintiff‑appellant on the basis of said decree, it was for her to show that the decree for dissolution of marriage obtained by her was passed in pursuance of the principles of the Muslim Law which governs the parties. In the light of what has been stated above, we accept the appeal, set aside the judgments and decrees of the Courts below and decree the suit filed by the plaintiff‑appellant in terms that Mst. Shazia Qayyum, respondent No, 1, shall live with the plaintiff‑appellant and perform her marital obligations. H.B.T./169/SC(AJK) Appeal accepted.