1997 PLP 16 (CLC)

"Rule-6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which‑‑ (a) the cause of action wholly or in part has arisen, or (b) where the parties reside or last resided together: Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction. Rule 4(2) provides that a plaint filed under sub‑rule (1) shall also contain the following particulars:‑‑ (a) name of the Court in which the suit is brought and the fact showing that it has jurisdiction; (b) the name, description and place of residence of the plaintiff; (c) the name, description and place of residence of the defendant so far as can be ascertained; (d) where the plaintiff or the defendant is a minor or a person of unsound mind a statement to that effect; (e) the facts constituting the cause of action and the place where and date when it arose; and (f) the nature of the claim and valuation of the claim with particulars in brief and relief claimed. Rule 5 states that where a plaint is presented to a Court not having jurisdiction, the plaint shall be returned to be presented in the Court to which it should have been presented with an endorsement of the Court and a brief statement of the reasons therefor. The Family Court is, therefore, a Court of law as contemplated in Article 175 of the Constitution, sub‑Article (2) of which states that no Court shall have any jurisdiction save as is or max, be conferred on it by the Constitution or by or under any law.

6. The spouses in this case being subject of the State of Jammu & Kashmir they submitted to jurisdiction of the Courts established at Azad Jammu & Kashmir and litigated the case of dissolution of marriage of the lady‑wife up to the Supreme Court. It appears that after final decision of the case before the Supreme Court of Azad Jammu & Kashmir in the year, 1989, Mst. Shamim Akhtar chose to come and started residing in Mansehra so that she may be able to make a case for dissolution of marriage and then filed a suit before the Family Court at Mansehra in the year, 1992. In para. No.8 of the plaint the lady although averred that she was residing at Mansehra since so many years but did not state as when she came to Mansehra from Muzaffarabad. In the statement of Mst. Shamim Akhtar recorded before the Court on 5‑1‑1993 she, however, mentioned that she was residing in Mohallah Dab No.2, Mansehra with her mother since the last 9 years but occasionally goes to Muzaffarabad. The lady having litigated the dissolution case before the Supreme Court of Azad Jammu and Kashmir up to the year, 1989 patently made a wrong statement, that she was residing with her mother in Mohallah Dab No.2, Mansehra for period of about 9 years before instituting her suit at Family Court, Mansehra in the year, 1992 after having failed to try her luck before the highest Judicial Forum at Muzaffarabad about three years back.

7. The Supreme Court Shariat Appellate Bench in 'Federation of Pakistan v. Mst. Farishta (PLD 1981 SC 120) observed, that Muslim Personal Law in Article 203‑B (c) of 1973 Constitution‑‑‑ means such codified or legislated law which is being applied to Muslim citizens of Pakistan as or with the denomination Muslim to Muslim which governs their person as such and as distinct from General law of the Land which applies to every body." Admittedly, this marriage has been dissolved by the Family Court on the basis of ' Khula' which is a recognized ground for decree for dissolution of marriage under the Muslim Law as section 2 (ix) of the Dissolution of Marriages Act, 1939 provides besides many other grounds enumerated therein. But this lay being a legislated Act shall apply to Muslim citizens of Pakistan in cases of dissolution of marriages before Family Courts which invokes jurisdiction under section 5 of the Family Courts Act, 1964 and adjudicates upon matters specified in the Schedule.

8. The spouses of this case are subject of Azad Jammu & Kashmir State. They are admittedly not citizens of Pakistan either by birth or by descent or by migration within the scope of sections 4. 5 and 6 of the Pakistan Citizenship Act, 1951. They cannot also hold dual citizenship or nationality under section 14 of the Act ibid or being a subject of the State of Jammu and Kashmir and having migrated to Pakistan with the intention of residing therein until such time as the relationship between Pakistan and that State is finally determined, shall without prejudice to their status as such subject, be a citizen of Pakistan as section 14‑B envisages. The Pakistan Citizenship Act, 1951 does not as such apply in case of the present parties and they cannot be deemed to be citizens of Pakistan at the commencement of this Act as section 3 provides. It, therefore, followed that a lady‑wife who is a subject of the State of Jammu & Kashmir after having failed to get her marriage dissolved through a law suit in Azad Kashmir by taking afterwards temporarily a residence in the territory of Pakistan can get a decree A for dissolution of marriage from a Family Court established under section 3 of Act XXXV of 1964. The Family Court at Mansehra had, therefore, no jurisdiction to entertain a like suit between the spouses or make any decision upon the dissolution of marriage between the parties.

9. The judgment and decree impugned has been in the circumstances written without lawful authority and shall be as such of no legal effect. We would be in this background of the case constrained to allow this Constitutional petition and record the declaration prayed for. No order as to costs. A.A./2003/P Petition accepted.