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2014 C L C 1238

[Lahore]

Before Shezada Mazhar, J

SHAHDAD KHAN—-Petitioner

Versus

JUDGE FAMILY COURT, RAWALPINDI and another—-Respondents

Writ Petition No.1740 of 2013, decided on 6th November, 2013.

 

Sh. Kamran Shehzad for Petitioner.

Sardar Muhammad Naseem Khan for Respondent.

ORDER

SHEZADA MAZHAR, J.— Brief facts necessary for the disposal of instant writ petition are that respondent No.1 filed a suit for dissolution of marriage on the basis of Khula before the learned Judge Family Court, Rawalpindi which was contested by the petitioner by filing written statement. In addition to that, the petitioner also filed an application for rejection of plaint alleging therein that the learned Judge Family Court at Rawalpindi had no jurisdiction to entertain the suit for dissolution of marriage. The said application was dismissed vide order dated 13-7-2013. Hence, this petition.

2. Learned counsel for the petitioner contends that parties entered into contract of marriage on 6-11-2012 for a consideration of deferred dower amounting to five thousand pounds and Nikah was performance in Abu Bakar Mosque, 38 Steadman Terrace, Bradford, United Kingdom. Rukhsati took place on 9-11-2012 and respondent No.2 stared living with the petitioner at his parental house and had been performing her marital obligations. However, after few days differences arose between the parties and the matter was referred to Fiqh Council Birmingham, United Kingdom, who decide that both the parties are free to agree a private khula/settlement; that respondent No.2 is still living in United Kingdom and she is not residing at Rawalpindi, Pakistan, therefore, the learned Judge Family Court at Rawalpindi had no jurisdiction to entertain the suit; that although the suit of respondent No.2 bear her signatures, however all the other proceedings are being carried out through special attorney, however said deed of special attorney has not been placed on record; that admittedly Nikah was performed in United Kingdom, marriage was solemnized in United Kingdom and still both the parties are residing there therefore, the Judge Family Court at Rawalpindi, Pakistan has no jurisdiction to entertain the suit for dissolution of marriage; that according to Rule 6 of the West Pakistan Family Courts Rules 1965 the Family Court has the jurisdiction to try the suit where cause of action wholly or in part has arisen on where the parties reside or last resided together. Submits that suit for dissolution of marriage or dower, can be instituted in the Court within whose local limits wife ordinarily resides and in the present case, admittedly respondent No.2 resides in United Kingdom; that the impugned order is liable to be set aside.

3. On the other hand, learned counsel for respondent No.2 submits that provision (b) Rule 6 of the West Pakistan Family Court Rules, 1965 grants right to file suit where she resides ordinarily and the learned counsel for the petitioner has misinterpreted the word “ordinarily”. In support of his contentions, learned counsel for the respondent No.2 has relied upon 1997 CLC 16 Rehmatullah v. Mst. Shameem Akhtar and others (PLD 1988 Karachi 602) Bibi Anwar Khatoon v. Gulab Shah and 2 others, (PLD 2005 SC 22) Muhammad lqbal through Special Attorney Faiz Sultan v. Parveen Iqbal, (2011 CLC 146) Mst. Saadia Yaqoob v. M. Khalid Karim and others and (2012 YLR 1678) Riaz Hussain v. Judge Family Court, Rawalpindi and submits that in the referred judgments, the Hon’ble Superior Courts have held that Family Court in whose local limits wife resides ordinarily, would have jurisdiction to entertain the suit for dissolution of marriage or dower.

4. I have heard the arguments and perused the record.

5. From the perusal of record it reveals that admittedly marriage was solemnized at Abdul Bakar Mosque 38 Steadman Terrace Bradford 803 9NP, United Kingdom. The matter was also referred to Fiqah Council Birmingham, United Kingdom; however no settlement between the parties could be effected. Rule 6(a) of the West Pakistan Family Courts Rules, 1965 clearly shows that court in whose jurisdiction cause of action wholly or in part arises, will have the jurisdiction. In the present case admittedly the cause of action has not been arisen in Pakistan as marriage was solemnized in UK. Rule 6(a) ibid states that where the parties resides or last resided together. In the present case, admittedly both the parties were residing in United Kingdom at the time of marriage and they also last resided together in United Kingdom, therefore, Rule 6(b) is also not applicable to the facts of the present case. However the proviso to Rule 6(b) of the West Pakistan Family Courts Rules, 1965 has relied upon by the learned counsel for respondent No.2, which states that in whose jurisdiction the wife “ordinarily” resides. The learned counsel for respondent No.2 has submitted that wife ordinarily resided at Rawalpindi, therefore, said application has been filed before Judge Family Court, Rawalpindi. In support of his claim, learned counsel for respondent No.2 has placed on record copy of Passport. Perusal of the said passport reveals that respondent No.2 came to Pakistan on 8th May, 2013 and left on 12 July, 2013 for United Kingdom. This document itself shows that respondent No.2 is not ordinarily resided at Rawalpindi, Pakistan. The special power of attorney issued in favour of representative of respondent No.2 has also not been placed on record to show the reason for issuance of the special power of attorney when it is claimed that she ordinarily resides in Pakistan.

6. The law laid down by the this Court in (1997 CLC 16) Rehmatullah v. Mst. Shameem Akhtar 2. Civil Judge 1st, Mansehra/Judge Family Court, Mansehra wherein it has been held as under:—

“Family Court in Pakistan would have no jurisdiction in case where supposes are subjects of State of Azad Jammu and Kashmir. Temporary residence of wife in Pakistan would not vest Family Court in Pakistan to assume/exercise jurisdiction in her suit for dissolution of marriage. Decree for dissolution of marriage granted to wife by Family Court in Pakistan would be without jurisdiction.”

7. Admittedly, the respondent No.2 and petitioner were residing in United Kingdom, their Nikah ceremony and Rukhsati was also performed there and later on differences arose between them at United Kingdom and subsequently matter was adjudicated upon by Fiqah Council, Birmingham, U.K.

8. Respondent No.2 filed suit for dissolution of marriage before Judge Family Court, Rawalpindi in violation of Rule 6 of the West Pakistan Family Courts Rules, 1965. The said rule does not grant right to her to institute suit for dissolution of marriage in Pakistan as neither the cause of action wholly or in part arises in Pakistan nor she ordinarily resides in Pakistan. The perusal of record clearly reflects that sufficient material is available on the record to show that respondent No.2 ordinarily resided in United Kingdom and her temporary visit in Pakistan will not give jurisdiction to Family Court, Rawalpindi to entertain suit for dissolution of marriage on the basis of Khula.

9. For what has been discussed above, the instant writ petition is allowed and the impugned order in the circumstances is without lawful authority and the learned Judge Family Court at Rawalpindi has no jurisdiction to entertain the suit for dissolution of marriage filed by the petitioner.

AG/S-100/L Petition accepte

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