2002 PLP 1744 (CLC)

‑‑‑‑R. 5‑‑‑Dissolution of Muslim Marriages Act (VIII of 1939), S.2‑‑ Muslim Family Laws Ordinance (VIII of 1961), Ss.1(2) & 5‑‑‑West Pakistan Family Courts Act (XXXV of 1964), Ss.5, 14 & Sched.‑‑‑Civil Procedure Code (V of 1908), O.VII, R.10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for dissolution of marriage‑‑‑Return of plaint for its presentation before competent Court‑‑ Parties were married at Karachi, where their Nikahnama was registered‑ ‑Parties, after going to Canada entered into another Nikah to satisfy the requirements of law of Canada‑‑‑Judicial separation was obtained at Canada through concerned Supreme Court‑‑‑Family Court returned the plaint to wife‑‑‑Appellate Court set aside said order and remanded the case for its decision after recording evidence of the parties‑‑‑Contention of husband was that order of Appellate Court was not legal as .both the parties were Canadian nationals‑‑‑Validity‑‑‑Husband, despite raising such plea had not shown that parties had lost their Pakistani citizenship‑‑ Registration of Nikahnama as well as residence of wife at Karachi was not disputed by husband nor said marriage had legally been dissolved‑‑ Second Nikah at Canada was an exercise in futility as second Nikah over and above an existing valid Nikah was not recognized in Islam nor its judicial separation‑‑‑Wife was justified in instituting suit at Karachi-‑ Impugned order was not suffering from any legal infirmity' or jurisdictional error‑‑‑High Court dismissed Constitutional petition in limine. Khurshid Bibi's case PLD 1967 SC 97 and Fazal Khitah v. Mst. Naheed Akhtar PLD 1979 SC 864 ref. Noorallah A. Manji and Muhammad Akram for Petitioner. Date of hearing: 11th March, 2002.

1. Granted.

2. Granted subject to just exceptions. 3 &

4. The petitioner and respondent No. 2 were married in Karachi. A Nikahnama has been placed on record which bears the signatures of Nikah Registrar, Garden West Karachi and this Nikahnama is not disputed. Mr. Noorallah Manji, however, clarified that the parties had gone to Canada and had again entered into another Nikah just to satisfy the requirements of laws in Canada. It is also stated that a judicial separation was obtained at Canada through the concerned Supreme Court. However, the dispute between the parties presently arises out of the Nikahnama registered at Garden West, Karachi. The respondent No.2 had filed a suit seeking dissolution of marriage showing her address at F‑172/2, Block‑5, Clifton, Karachi. The plaint was returned to her under rule 5 of Family Courts Rules by the learned Family Judge with a direction to file the same before the competent Court. A Constitutional petition was filed in this Court which was disposed of with the direction that the petitioner may approach the Appellate Court for appropriate relief. Accordingly, an appeal was filed by the respondent No.2 which was heard by learned 2nd Additional District Judge, Karachi South. The Appellate Court set aside the order of the Family Court with the following observations:‑‑-- "In the present case learned Judge has returned the plaint without recording the evidence and I am after the above discussion reached at the conclusion that this case required recording the evidence of both the parties, therefore, I declare the order of the learned Family Judge as illegal and set aside the same and remand the case to the learned Family Judge to dispose of the same according to law after recording the evidence of both the parties. Hence case remanded." Learned counsel for petitioner emphasized that the above order could not be sustained as both the parties are Canadian nationals. Despite this plea, it could not be shown that they have lost their Pakistani citizenship. Admittedly, the Nikahnama was registered at Garden West, Karachi and it is also not, disputed that the respondent No.2 is not residing at the given address at Karachi. There is also no issue that the marriage solemnized through aforesaid Nikahnama has legally been dissolved. The marriage was solemnized in Karachi under Islamic Law, the second Nikah at Canada was an exercise in futility. Second Nikah over and above an existing valid Nikah is not recognized in Islam nor is judicial separation. Therefore, if all the facts asserted by the plaintiff/respondent No.2 were correct, she was justified in instituting the suit in Karachi. The authorities Khurshid Bibi's case PLD 1967 SC 97 and Fazal Khitah v. Mst. Naheed Akhtar PLD 1974 SC 864 have been considered by the Appellate Court and the order of Family Court has been set aside on. legal grounds. There is no legal infirmity or jurisdictional error in the order. The parties have yet to lead evidence on controversial issues and prove their case 'before the Family Judge, interference with such an order in the Constitutional jurisdiction would be uncalled for. The petition is wholly without merits and is dismissed in limine. S.A.K./H‑71/K Petition dismissed.