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2012 C L C 24
[Lahore]
Before Asad Munir, J
MUHAMMAD ZAMAN----Petitioner
Versus
UZMA BIBI and 4 others----Respondents

Writ Petition No.4240 of 2010, decided on 27th July, 2011.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 14---Appeal against order of Family Court---Maintainability---Order, if not final or definite, could
be described as an interim or interlocutory order---Order could not be treated as an interim or
interlocutory order, if same did decide finally an issue of maintainability of suit or jurisdiction of Family
Court---Illustration.
Muhammad Zaffar Khan v. Mst. Shehnaz Bibi and 2 others 1996. CLC 94 rel.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution


of marriage and recovery of maintenance by wife---Husband's application seeking dismissal of suit by
Family Court in Pakistan for lacking jurisdiction to try the same as parties were citizens of State of Azad
Jammu and Kashmir---Family Court dismissed such application---Order of Appellate Court dismissing
husband's appeal not to be competent against such order of Family Court for lacking of an interim
nature---Validity---High Court could address question of legality of order impugned in such appeal.
(c) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 1(2), 5, Sched. & S.10(4)---West Pakistan Family Courts Rules, 1965, R.6---Civil Procedure Code
(V of 1908), S.83---Pakistan Citizenship Act (II of 1951), S.14(b)---Constitution of Pakistan, Arts.1(2) &
199---Constitutional petition---Suit for dissolution of marriage on ground of Khula and recovery of
maintenance---Husband's application seeking dismissal of suit by Family Court in Pakistan for lacking
jurisdiction to try, same as parties were citizens of State of Azad Jammu and Kashmir---Dismissal of
such application and passing of decree for dissolution of marriage by Family Court for failure of pre-trial
conciliation efforts---Validity---According to S.14(b) of Pakistan Citizenship Act, 1951, a permanent
resident of State of Azad Jammu and Kashmir having migrated to Pakistan would be regarded as citizen
of Pakistan---Subjects of the State holding Pakistani passports would be deemed to be citizens of
Pakistan---Section 83, C.P.C. provided that an alien, if not falling within definition of an "alien" enemy,

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could sue in Pakistan---Under S.1(2) of West Pakistan Family Courts Act, 1964, residence of one party
would give jurisdiction to Family Court in Pakistan to entertain such suit even though marriage not
solemnized in Pakistan---Suit for dissolution of marriage according to R.6 of West Pakistan Family
Courts Rules, 1965 could be filed in Family Court within whose local limits wife was ordinarily residing,
while suit for recovery of maintenance could be filed in Family Court within whose local limits cause of
action had arisen wholly or in part---Record showed that wife and her children residing since long
in Pakistan were registered citizens of Pakistan holding national identity cards---Cause of action as
stated by wife had arisen to her in Pakistan---Wife and her children could invoke and avail
jurisdiction of Courts in Pakistan including Family Courts---High Court dismissed constitutional petition
in circumstances.
Mst. Naseem Akhtar v. Director General Immigration and Passport and others PLD 2006 Lah.
465 and Masood Ahmad Malik v. Mst. Fouzia Farhana Quddus 1991 SCMR 681 rel.
Rehmat Ullah v. Mst. Shamim Akhtar and another 1997 CLC 16 and Mst. Amira Bokhari v. Faqir
Syed Jameel-ud-Din Bokhari and 2 others PLD 1994 Lah. 236 distinguished.
(d) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 1(2), 5 & Sched.---Civil Procedure Code (V of 1908), S.83---Suit for dissolution of marriage or
recovery of maintenance---Parties either both or one of them neither citizen of Pakistan nor did their
marriage was solemnized in Pakistan---Jurisdiction of Family Court in Pakistan---Scope---While
determining question of jurisdiction of Courts in Pakistan, question of citizenship or nationality of
parties would not be relevant---According to S.83, C.P.C., even an alien, if not falling within definition
of an alien enemy, could sue in Pakistan---Residence of one party or accrual of cause of action wholly or
in part within local limits of a Family Court in Pakistan would give the court jurisdiction to entertain
such suit---Principles.
Abdul Qadeer Warraich for Petitioner.
Ch. Muhammad Akbar Warriach for Respondents Nos.1 to 3.
Miss Yasmin Sehgal, D.A.-G.

ORDER

ASAD MUNIR, J.--- Facts in brief are that on 27-1-2009 respondent No.1 along with her minor
children, respondents Nos.2 and 3, filed a suit in the Court of Family Judge, Gujrat, against the petitioner
for the dissolution of respondent No.1 's marriage and for recovery of maintenance. In his written
statement, the petitioner took the preliminary objection that the Judge Family Court, Gujrat, had no
jurisdiction to try the suit as the parties were citizens of Azad Jammu and Kashmir. An application was
also filed seeking dismissal of the suit on the basis of the aforesaid preliminary objection. However, the
learned Judge Family Court, Gujrat, vide his order dated 21-7-2009 over-ruled the objection. Against the
said order, the petitioner preferred an appeal which has been dismissed by the learned Additional District
Judge Gujrat's judgment dated 9-10-2009 on the ground that Family Judge's order dated 21-7-2009,
being an interim order, was not appealable under section 14 of the West Pakistan Family Courts Act,
1964. Subsequently, the learned Family Judge, Gujrat, by his order dated 5-11-2009, passed under the

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proviso to section 10(4) of the West Pakistan Family Courts Act, 1964, has dissolved the marriage
between the petitioner and respondent No.1 on the ground of khula as no reconciliation could be brought
about between the parties.
2. Through this writ petition, the petitioner has called into question Family Judge's orders dated
21-7-2009 and 5-11-2009 and judgment dated 9-10-2009, passed by the learned Additional District
Judge, Gujrat. Relying on Muhammad Zaffar Khan v. Mst. Shehnaz Bibi and 2 others (1996 CLC 94),
the learned counsel for the petitioner has argued that Family Judge's order dated 5-11-2009, was
appealable as it cannot be regarded as an interlocutory order. It is further argued that respondents Nos.1
to 3, being the citizens of Azad Kashmir, the learned Family Court had no jurisdiction as the West
Pakistan Family Courts Act, 1964, is applicable to the citizens of Pakistan only. The learned counsel has
also submitted that the marriage between the parties was solemnized in Azad Jammu and Kashmir, where
the minors were also born and that, as such, the cause of action disclosed in the suit has no nexus with
Pakistan. In support of his arguments, the learned counsel has referred to Rehmat Ullah v. Mst. Shamim
Akhtar and another (1997 CLC 16) and Mst. Amira Bokhari v. Faqir Syed Jameel-ud-Din Bokhari and 2
others (PLD 1994 Lahore 236). In response, the learned counsel for the respondents Nos.1 to 3 has
referred to section 14(b) of the Pakistan Citizenship Act, 1951, to contend that respondent Nos.1 to 3 are
the citizens of Pakistan where the cause of action has also arisen.
3. Learned DAG, who was asked to assist the Court, has submitted that even if it is assumed that the
respondents are not citizens of Pakistan they are not debarred from invoking the jurisdiction of courts in
Pakistan. In this regard, the learned DAG has referred to section 83 of the Civil Procedure Code, 1908,
which provides that even if a person is not a citizen of Pakistan, he can as an alien always sue in Pakistan
unless he falls within the definition of an alien enemy.
4.

I have heard the learned counsel for the parties and have also gone through the relevant record.

5. There is merit in the argument that an appeal was maintainable against the Family Judge's order
dated 21-7-2009 which could not be regarded as an interlocutory or interim order. This is so because an
order can be described as an interim or interlocutory order only it is not final or definite. An order cannot
be treated as interim or interlocutory if it finally decides the issue of maintainability of the suit or the
jurisdiction of the court as has happened in the instant case where the Family Judge vide his order dated
21-7-2009, while dismissing the petitioner's application, has finally decided the question of jurisdiction.
The aforesaid view is supported by Muhammad Zaffar Khan v. Mst. Shehnaz Bibi and 2 others, cited by
the learned counsel for the petitioner.
6. Even though the learned Additional District Judge has not decided petitioner's appeal on merits
by wrongly holding that it was not competent, the question of legality of the order impugned in the
appeal can be addressed by this Court. In this regard, the record shows that the respondent No.1 along
with respondents Nos.2 and 3 have since long been residing in village Kalra Punwan, Tehsil and District
Gujrat. Respondent No.1 is also a holder of national identity card which proves that she is a citizen of
Pakistan along with her children who also appear to be registered as citizens of Pakistan. The stand of
respondents Nos.1 to 3 of being citizens of Pakistan is also supported by section 14(b) of the Pakistan
Citizenship Act, 1951, which allows a permanent resident of State of Azad Jammu and Kashmir, who has
migrated to Pakistan to be regarded as a citizen of Pakistan. Section 14(b) of the Pakistan Citizenship
Act, 1951 is reproduced hereunder:--"A person who being a subject of State of Jammu and Kashmir, has 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 his status as such subject, be a citizen of Pakistan".
Reference may also be made to Office Memorandum No.8/9/70 (Coord.1) dated 24-6-1970 which states

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that "Although Azad Kashmir is not part of Pakistan within the meaning of Article 1(2) of the
Constitution, it should for all practical purposes be treated like any other Province". In Mst. Naseem
Akhtar v. Director General Immigration and Passport and others (PLD 2006 Lahore 465), it was observed
that subjects of Azad Kashmir holding Pakistani passports are deemed to be citizens of Pakistan.
7. Section 1(2) of the West Pakistan Family Courts Act, 1964, provides that the Act applies to the
whole of Pakistan and there is no bar contained therein as would exclude the jurisdiction of the Family
Court where the parties are not citizens of Pakistan or one of them is not a citizen of Pakistan. The
residence of one party gives the Family Court in Pakistan jurisdiction especially in the case of a family
suit filed by the wife for the dissolution of the marriage or for recovery of maintenance, even if the
marriage was solemnized outside Pakistan. A reference may be made to Rule 6 of the West Pakistan
Family Courts Rules, 1965, which in the case of a suit for dissolution of marriage confers jurisdiction on
the Family Court within whose local limits the wife ordinarily resides while a suit for maintenance can
be filed in the Family Court within whose territorial jurisdiction the cause of action wholly or in part has
arisen. In the present case, admittedly, the respondents since long have been living in District Gujrat
where they need maintenance. As such, the cause of action can be stated to have arisen in Gujrat.
Reference may also be made to Masood Ahmad Malik v. Mst. Fouzia Farhana Quddus (1991 SCMR 681)
where the marriage was solemnized in Washington, USA, but the talaq was pronounced by the husband
in Islamabad. However, it was held that the Family Court functioning under the Family Courts Act, 1964,
had the jurisdiction to entertain the suit for jactitation of marriage brought by the husband. It may be
observed that the question of citizenship or nationality is not relevant while determining the question of
jurisdiction of the courts in Pakistan. Section 83 of the Civil Procedure Code, 1908, also provides that
even if a person is not a citizen of Pakistan he can as an alien always sue in Pakistan unless he falls
within the definition of an alien enemy. Thus, any foreigner can avail and invoke the jurisdiction of the
courts in Pakistan provided the defendant resides within the jurisdiction or the cause of action whether
wholly or in part has arisen in Pakistan. In the present case, the respondents Nos.1 to 3 are not only the
citizens of Pakistan but are also residing in Pakistan where the cause of action has arisen. It follows that
the said respondents can under law invoke and avail the jurisdiction of the courts in Pakistan including
the Family Courts exercising jurisdiction under the West Pakistan Family Courts Act, 1964. Rehmat
Ullah v. Mst. Shamim Akhtar and another (1997 CLC 16), cited by the learned counsel for the petitioner,
has facts altogether different from those involved in the present case. In the cited precedent, the suit for
dissolution had been filed by the wife before the Family Court in Pakistan after the courts in Azad
Kashmir upto the level of Supreme Court had dismissed her identical suit for dissolution of marriage on
the ground of khula and there was also no evidence of the wife being a citizen of Pakistan or residing
permanently in Pakistan. Likewise, Mst. Amira Bokhari versus Faqir Syed Jameel-ud-Din Bokhari and 2
others (PLD 1994 Lahore 236) is not relevant here as it did not deal with the question of jurisdiction of
the Family Courts in Pakistan but related to the vices of a notice of talaq sent under section 7 of Muslim
Family Laws Ordinance, 1961, which it was held could not be invoked in view of section 1(2) of the
Ordinance as both husband and wife were citizens of USA.
8. The foregoing discussion leads me to the conclusion hat there is no merit in this writ petition as
no illegality can be found in learned Judge Family Court's orders dated 21-7-2009 and 5-11-2009 as well
as judgment dated 9-10-2009, passed by the learned Additional District Judge, Gujrat. Accordingly, this
writ petition is dismissed but without any order as to costs.
S.A.K./M-298/L

Petition dismissed.

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