P L D 1975 Lahore 1380 (PLP)

A. R. SHEIKH, J.‑This judgment will dispose of this intra‑Court appeal filed under section 3 of the Law Reforms Ordinance, 1972. Briefly stated the facts are that the appellant Mst. Tereza Tahira, moved a petition under section 10 of the Divorce Act (IV of 1869) for dissolution of her marriage with the respondent, Younus Gill, on various grounds, in the Court of the District Judge, Lahore. The respondent objected to the jurisdiction of the Lahore Court and contended that since he has been living in the Sargodha District and never lived with the appellant at Lahore, the District Judge, Lahore, does not have jurisdiction in the case. This preliminary objection prevailed and the petition was returned for presenting it before the Court of competent jurisdiction. The appellant, instead of going to the District Court at Sargodha where the parties last resided together, presented the petition before this Court direct. The learned Single Judge has dismissed it saying that `no doubt this Court has concurrent jurisdiction with the District Court, we would not like to entertain this petition direct'. Hence this appeal.

2. Under the Divorce Act of 1869, a Court has jurisdiction to entertain a suit for dissolution of marriage provided the petitioner or the respondent professes the Christian Religion and the petitioner must reside in Pakistan at the time of presenting the petition. There is no dispute between the parties in respect of the aforesaid two conditions having been satisfied in the case before us. The question debated is that of concurrent jurisdiction of the High Court and the District Court and the right of the petitioner to choose his or her forum. In order to appreciate the argument, the relevant provisions of law may be reproduced :‑ Section

3. In this Act, unless there be something repugnant in the subject or context,‑‑ (1) `High Court' means with reference to any area‑ (a) (b) (c) (d) In the case of any petition under this Act, `High Court' means the High, Court for the area where the husband and wife reside or last resided together. (2) `District Judge' means‑ (a) in a Province, a judge of a Principal Civil Court of original jurisdic tion, however designated ; and (b) * * * * * * * * (3) `District Court' means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together. (4) `Court' means the High Court or the District Court. as the case may be. s * * * * ~ x x * s * * s Section 10.‑Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery. Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some. other religion, and gone through a form of marriage with another woman ; or has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards. Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded." ‑The argument put forward on behalf of the appellant is that on the plain ,language of section 10 of the Act, the jurisdiction of the High Court and that of the District Court is concurrent and the appellant has, therefore, a right to select a forum out of the alternatives provided by the section, i.e., either the petition may be presented before the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under the Act, the parties are actually residing, though separately, at the time of presenting the petition or they last resided together, or direct to the High Court for the area where the husband and wife reside or last resided together and no fetters have been placed in this regard by the Legislature. It has been further ,contended that no rules either have been framed by this Court on the subject .directing such petitions to be presented before the District Judge having jurisdiction in the matter before approaching this Court. Analogy was drawn from section 18 of the Act, which provides that a petition for a Christian marriage to be declared null and void could be presented to the District Court .or to the High Court and in such cases also the petitioner can exercise his/her choice in the matter. However, under section 19 of the Act, which enume rates the grounds on which a decree may be made, an exception has been provided in the concluding clause to the effect that nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud'. Put differently, although a petition under section 18 on grounds given in section 19 may be made either to the relevant District Court or to the High Court, yet if nullity of marriage is sought on the ground of consent of either party obtained by force or fraud, such a petition could only be made to the High Court.

3. As against this, learned counsel for the respondent has argued that because by virtue of section 45 of the Act, all proceedings under the Divorce Act between party and party are to be regulated by the Code of Civil Procedure, invoking the principle of section 15 of the Code, the cause has to be presented before a Court of the lowest grade and the appellant instead of coming to this Court, direct should have gone to the relevant District Court in the first instance. There are two objections to this argument. Firstly that the application of the Code of Civil Procedure is 'subject to the provisions of the Act' and if the Act gives choice to the appellant to present the petition .either before the relevant District Court or to the High Court direct, section 15 of the Code cannot be invoked in aid of refusing choice of forum A to the appellant. Secondly, the grades of Courts envisaged in section 15 pertain to grades of Civil Courts provided by the West Pakistan Civil Courts Ordinance, i 962, and if the argument be accepted that jurisdiction is a matter, of procedure, on its plain language section 15 of the Code of Civil Procedure as not applicable for the reason that there is no question of a higher grade or a lower grade qua the High Court and the District Judge's Court, which is subordinate to the former. On this view of the matter, section 45 of the Act .or section 15 of the Code of Civil Procedure is of no avail to the respondent in this regard.

4. Attention has also been, drawn to section 4 of the Act. By this section, special jurisdiction has been conferred on the District Court with a view to providing relief to persons who could not come to the seat of the High Court from far flung areas of the country but this does not mean that the concurrent jurisdiction conferred on the District Courts is to be in any manner interpreted as obligatory for a petitioner to approach the District Court in the first instance instead of coming to the High Court direct. The very phraseology of section 4 suggests that it is an enabling provision and in no way limits the right of the petitioner to come to this Court direct under section 10 or 18 of the Act where concurrent jurisdiction has been provided ,for.

5. It was lastly contended by learned counsel for the respondent that there exists a rule of practice in this Court that petitions under section 10 of the Divorce Act be presented in the first instance to the District Court having jurisdiction. We have tried to ascertain the existence of any such rule of practice but we regret to observe that no such rule as alleged has been brought to our notice by learned counsel for the respondent or by the office ; rather we find from the register of institution of the petitions under section 10 of the Act maintained by this Court that such petitions have been entertained by this Court direct and there is no restriction placed in this regard. We may also add that the objection that by entertaining the petition direct, the parties are deprived of the privilege granted by the Act of having two hearings, in the form‑ of decree by the District Judge subject to confirmation and then confirmation thereof by this Court under section 17 of the Act, Is of no merit. Even in the case of tearing of the petition by ibis Court on the original side a decree nist is subject to confirmation (See section 16) and no prejudice is caused to the parties in such cases.

6. There has been some controversy as to the applicability of section 24 of the Cede of Civil Procedure pertaining to transfer of cases in the presence of section 8 of the Act, which gives extraordinary jurisdiction to the High Court to remove, withdraw and transfer any suit or proceeding pending in the District Court. In Surendera Nath Darta v. Malati Datta (I L R 1942 Cal. 461), it has been held that in view of the express provisions of section 8 of the Divorce Act regulat ing transfer of a divorce proceeding from one Court to another, section 24 of the Code of Civil Procedure has no application to such a case. On the other hard, a Full Bench of the Lahore High Court in Mr. Geyer v. Mrs. Geyer (2), has expressed a contrary view. In that case as soon as the petition under section 10 of the Act had been presented in the High Court, a learned Judge ordered that the suit should be transferred to the District Judge of Lahore under section 24 of Code of Civil Procedure. The case was tried by the District Judge, Lahore, who granted the petitioner the decree prayed for. When that decree came up before the High Court for confirmation under section 17 of the Divorce Act, an objection was raised that the District Judge of Lahore had no jurisdiction to deal with the case for two‑fold reason. The first was that section 24 of the Code of Civil Procedure cannot apply to a transfer mace under tie Act and the order of the learned Single Judge is void ab initio. The second ground was that even if section 24 of the Code of Civil Procedure be held to be applicable, the learned Single Judge was not at liberty to transfer the case for trial or for disposal to any District Court sub‑ordinate to the High Court. Both these objections were repelled observing that `under section 45 of the Divorce Act, where the Act is silent, the provisions of the Code of Civil Procedure would apply. Since there is no specific provision in the Divorce Act empowering the High Court to transfer a case for dissolution of marriage pending before it to the Court of District Judge and since such transfer is rot either impliedly or expressly barred, to such a case provisions of the Code would aptly. The High Court can, therefore, under section 24 of the Code of Civil Procedure, transfer a case for dissolution of marriage under the Divorce Act to any District Court. The fact that in section 3(3) of the Act the expression `District Court' means the Court of District Judge within the local limits of whose jurisdiction the husband and wife reside or last resided together is immaterial. The expression is neither equivalent to nor synonymous with the expression appearing in section 24 of the Code of Civil Procedure Since the question of applicability of section 24 of the Code of Civil Procedure to such a petition does not directly arise in this appeal and we have come to the conclusion that the petition under section 10 of the Act is entertainable direct by this Court as was done in the precedent cases, we refrain from expressing any considered opinion on this point.

7. For the reasons above, we respectfully disagreeing with the view taken by the leaned Single Judge set aside the order of dismissal of the petition in limine. The petition will now be considered to be pending before this Court for disposal in accordance with law. With the observations above, the appeal succeeds and is allowed, with no order as to costs. K. H. A. Appeal accepted.