1991 PLP 681 (SCMR)

It was further observed ‑‑ "The Senior Civil Judge/Judge, Family Court, Islamabad, may have jurisdiction under the principle of lex fori or lex domicili but he has no jurisdiction in view of the overriding effect of Muslim Family Laws Ordinance, 1961 by virtue of section 3 read with section 5 of the West Pakistan Family Courts Act, 1964. The suit for the jactitation of marriage brought by the respondent against the petitioner directly emanates from the fact of his pronouncing Talaq under the Muslim Family Laws Ordinance, 1961 and if that law is not applicable to the parties, the respondent obviously cannot enforce his Talaq through that Court neither by means of a suit for jactitation of marriage, nor through a suit for declaration." Hence this petition seeking leave to appeal against the aforesaid judgment of the High Court. After hearing the learned counsel for the petitioner it appeared prima facie to this Court that the High Court's decision that the Family Court did not have jurisdiction was not correct in law; accordingly, a notice was issued to respondent No.l why this petition be not converted into an appeal and allowed and the case remanded to the competent Court for decision on merits? Learned counsel for the petitioner, Raja Muhammad Akram and that of respondent No.l, Mr. Ahmad Raza Kasuri, have been heard at full length. The main consideration which prevailed with the High Court for holding that the Senior Civil Judge/Judge, Family Court, Islamabad, cannot exercise the jurisdiction in the. matter was that the Muslim Family Laws Ordinance, 1961, by virtue of Section 3 read with section 5 of the West Pakistan Family Courts Act, 1964, had overriding effect and as the suit for the jactitation of marriage brought by the petitioner emanated directly from the fact of his pronouncing talaq under the Muslim Family Laws Ordinance, 1961, the Family Court could not enforce his talaq either by means of a suit for jactitation of marriage or through a suit for declaration as the said law was not applicable to the parties. We are not inclined to share this view. The scope and amplitude of the Muslim Family Laws Ordinance, 1961 is given in section 1(2) in the following terms:‑‑ "(2) It (Muslim Family Laws Ordinance) extends to the whole of Pakistan, and applies to all Muslim Citizens of Pakistan wherever they may be:" (Underlining is ours) While the question of jurisdiction of the Family Court is dealt with under section 5 of the Family Courts Act, 164, as follows:‑‑ "

5. Subject to 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". The Schedule provides as follows:‑‑ "SCHEDULE (See section 5 supra)

1. Dissolution of marriage

2. Dower.

3. Maintenance,

4. Restitution of Conjugal rights.

5. Custody of children.

6. Guardianship.

7. Jactitation of marriage." The High Court, as stated already, has taken the view that the Family Court was precluded from exercising jurisdiction in the matter because even though it had the exclusive jurisdiction to entertain suits relating, inter alia, to jactitation of marriage under section 5 of the Act, this jurisdiction was subject to the provisions of the Muslim Family Laws Ordinance, 1961. Put since the provisions of this Ordinance were applicable only to all Muslim citizens of Pakistan and because this condition was not satisfied in the instant case (the parties not being citizens of Pakistan) the Family Court could not entertain the suit. The view taken by the High Court, therefore, seems to have been formed on account of the words "subject to the provisions of the Family Laws Ordinance, 1961" employed in section 5 of the Family Courts Act, 1964 and it is these words that have led the High Court to think that jurisdiction under the said Act can be exercised only in a case where the parties are "Muslim citizens of Pakistan" and in no other case. This view does not appear to be correct. A close examination of the provisions of the Family Courts Act, 1964 and those of the Muslim Family Laws Ordinance, 1961 shows that they do not operate exactly in the same field and that the scope of the Family Courts Act, 1964 is wider than that of the Muslim Family Laws Ordinance, 1961. In our view, the affect of the words in section 5 that the Family Courts shall have the jurisdiction to entertain suits relating to dissolution of marriage, jactitation of marriage etc. but subject to the provisions of the Muslim Family Laws Ordinance, 1961 imply only that where there is an inconsistency between Muslim Family Laws Ordinance, 1961 and the Family Courts Act, 1964, the provisions of the Muslim Family Laws Ordinance will prevail and shall be given effect to in their pristine form and no more. They do not have any other effect and the provisions of other laws are not affected thereby. Accordingly, suits of this nature filed by the parties r other than Muslim citizens of Pakistan if otherwise competent under any other law can be entertained but will be heard and tried not in accordance with the provisions of the Muslim Family Laws Ordinance but by the proper law applicable to them. Thus, under the Civil Procedure Code, 1908 a Civil Court has jurisdiction to entertain and try a suit if the parties, at the commencement of the B suit, are residing within its local limits (section 20, C.P.C.). Accordingly any party irrespective of the question whether he is a Muslim citizen of Pakistan or not can institute a suit, including a suit for jactitation of marriage, before a Court within whose local limits the defendant is; for the time being residing. If the parties are Muslim citizens of Pakistan, the suit will be tried and determined in accordance with the provisions of the Muslim Family Laws Ordinance, 1961. But if they are not Muslim Citizens of Pakistan the suit can still be entertained but it will be tried and determined by the proper law of the parties; in the former case by the Family' Court while in the later case by the ordinary Civil Court of competent jurisdiction. In the case in hand, both the parties are residing within the local limits of the jurisdiction of the Senior Civil Judge, Islamabad, since September 1, 1968. The talaq was pronounced at Islamabad on 23‑2‑1988 and the parties continue to reside at Islamabad, the cause of action, prima facie, also arose in Islamabad. Hence the Senior Civil Judge, Islamabad, did have the jurisdiction to entertain and try the suit. Undoubtedly, he has been referred to in the proceedings below as the Family Court but this is because he was also "exercising powers of Judge Family Court" for the purposes of the Family Courts Act, 1964. But this did not preclude him from entertaining a suit of jactitation of marriage arising within the local limits of his jurisdiction, to which the provisions of the Muslim Family Laws Ordinance, 1961 do no apply. Even though, in this case, some misdescription has occurred in the title of the Court in which the proceedings were instituted but such misdescription will not deprive the said Court from exercising the jurisdiction which he otherwise actually possesses (see Piao Gul v. The State PLD 1960 SC 307). The upshot of this discussion is that the order of the High Court dated 3‑9‑1990 that the Court of the Senior Civil Judge/Judge, Family Court, Islamabad has no jurisdiction to try the suit of the petitioner is erroneous in law and his order rejecting the plaint is, accordingly, set aside. The case is remanded back to the learned Senior Civil Judge, Islamabad for trial and adjudication on merits. The provisions of the Muslim Family Laws Ordinance, 1961 will undoubtedly not apply in the determination of the suit and the suit will be heard and adjudicated upon by the proper law of the parties. As to what the proper law applicable to the parties will be, shall be decided by the learned Trial Court by reference to the principles of "Conflict of Laws" (also called Private International Law). Considerable guidance on this question is available from this Court's judgments in the cases of Syed Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yusuf PLD 1963 S.C. 51 at page 65 and Mrs. Marina Jatoi v. Nuruddin K. Jatoi and another PLD 1967 S.C. 580 at page

599. Resultantly, this petition is converted into an appeal and allowed. Costs of this appeal shall be the costs in the cause. M.B.A./M‑1158/S Appeal allowed.