' A transfer application under section 25-A of the Family Courts Act, 1964, read with section 24 of the Code of Civil Procedure and section 45 of the Divorce Act, 1869, has been filed by Mst. Noreen Iqbal against the respondent Sohail Iqbal/applicant for transfer of the case titled, "Sohail Iqbal v. Noreen Iqbal" under ,section 10 of the Divorce Act, 1869, for dissolution of marriage filed by the respondent.
The learned Judge of this Court vide order, dated 19-1-2004 has withdrawn the said case from the Court of Mr. Mumtaz Ahmad Tarar, Judge, Family Court, Rawalpindi and entrusted the same to Senior Civil Judge/Judge, Family Court, Jhelum, to proceed further in the matter. Sohail Iqbal application has filed the present application for recall of the aforesaid order transferring the petition to the Judge, Family Court, Jhelum.
2. Learned counsel for the applicant contends that the spouses are Christian by religion and the West Pakistan Family Courts Act, 1964, and the Rules made thereunder are not applicable to the family disputes of the Christian community. Further contends that under the said Act the Court has the jurisdiction where the parties/spouses residing or resided. Learned counsel submits that the parties lastly resided at Rawalpindi and the learned Civil Judge has the jurisdiction to hear the petition filed under section 10 of the Divorce Act, 1869. Further submits that the Rules under West Pakistan Family Courts Act, 1964, are inconsistent with the Divorce Act, 1869. Reliance in this context has been placed on Mrs. Daphne Joseph v. Malik Eric Roshan Khan PLD 1978 Kar. 336; Sultan Ahmad v. Mst. Mehr Bhari and another PLD 1982 FSC 48; Mian Ziaud Din v. Punjab Local Government and others 1985 SCM R 365; The Chairman, Railway Board, Lahore and others v. Messrs M. Wahabud Din and sons PLD 1990 SC 1034 and Messrs Mehraj Flour Mills and others v. Provincial Government and others (sic)
3. On the other hand, learned counsel for the petitioner Mst. Noreen Iqbal, has vehemently opposed the arguments of the learned counsel for the applicant/respondent contending that the procedural provisions of the West Pakistan Family Courts Act, 1964, are applicable to the non- Muslims and in this respect placed reliance on the case of Mulchand v. Smt. Indra and others PLD 1985 Kar. 362; Mst. Sham;had Yousaf v. Yousaf. Masih 1994 M LD 1078 and Ramdas v. Mst. Bernadat PLD 1998 Kar.
42.
4. I have heard the arguments of the learned counsel for the parties and perused the record. Sohail Iqbal had filed a petition under section 10 of the Divorce Act, 1869, against his wife Mst. Noreen Iqbal for dissolution of marriage. Section 10 of the Act reads as under:- "Section 10--- When husband may petition for dissolution.--- Any husband may present a petition to the [Court of Civil Judge] praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.
When wife may petition for dissolution.--- Any wife may present a petition to the [Court of Civil Judge] 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."
5. Section 3(2) of the Divorce Act, 1869, has defined the Court of Civil Judge, which reads as under:- "Section 3(3).--- "Court of Civil Judge" means in the case of any petition under this Act, the Court of the Civil Judge within the local limits of whose ordinary jurisdiction the husband and wife resided or last resided together."
6. From the above provisions of law, it clearly means that the IA petition can be filed in the Court of Civil Judge, where the spouses resided or had been residing together.
7. Schedule under section 5 of the West Pakistan Family Courts Act, 1964 provided the following suits triable by the Judge, Family
(1) Dissolution of marriage including Khula.
(2) Dower.
(3) Maintenance.
(4) Restitution of conjugal rights.
(5) Custody of children.
(6) Guardianship.
(7) Jactitation of marriage.
(8) Dower.
(9) Personal property and belongings of a wife.
8. Rule 6 of the Family Courts Rules, 1965, deals with the jurisdiction of the Court to try the suit under the Act, which is as under:--- "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 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."
9. Section 5 of the West Pakistan Family Courts Act, 1964, deals with the jurisdiction of the Court, which is reproduced as under for ready reference:-- "Section 5.--- Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, bear and adjudicate upon matters specified in the schedule."
10. The aforesaid section clarifies that the Family Courts possess exclusive jurisdiction in the matters specified in the Schedule to West Pakistan Family Courts Act, 1964, and section 14 of the Act has provided the remedy of appeal against the decision or decree passed by the Family Court.
There is no bar in this Act that it is not applicable to the Family B cases filed by the non-Muslims.
This point has been dealt with in the case I of Naeem Ahmad v. Nuzhat Almas and 2 others 1981 CLC (Lahore)
195. The relevant paragraph of the learned Judge is reproduced below:-- "I am afraid none of the contentions raised above has any substance. It has been held in Mrs. Daphne Juseph v. Malik Eric Roshan Khan PLD 1978 Kar. 336 and Casper v. Jannifer and another 1976 PCr.LJ 307, that the provisions as contained in the West Pakistan Family Courts Act, 1964, are applicable to Muslims as well as non-Muslims equally."
11. In another case .Mulchand v. Smt. Indra and others PLD 1985 Kar. 362, it was observed by the Honourable Judge of the Sindh High Court, that the cases relating to marriage and family affairs of non-Muslims including Hindus not excluded from the ambit of section 5 of the West Pakistan Family Courts Act, 1964. The Family Courts Act is a procedural statute and does not come into conflict with the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946. A similar point regarding transfer of the family suit under section 5 of the West Pakistan Family Courts Act, 1964, has been dealt with by an Honourable Judge of the Lahore High Court in a case of Mst. Shamshad Yousaf v. Yousaf Masih 1994 MLD (Lahore) 1078. In this case both the parties were Christian and the Honourable Judge while resolving the controversy observed that 'it would be seen from the "preamble" that the Family Courts Act was enacted with the purpose to make provision for the establishment of Family Courts for expeditious settlement and disposal of disputes relating to family affairs or matters connected therewith. There is no reference of any religion or any particular enactment. The proposition becomes further clear if reference is made to the Schedule under section 5 of the Act in which only the subjects like dissolution of marriage, dower, maintenance etc., have been mentioned instead of referring to particular enactment or religion. In the judgment, reliance has been placed on the case of Mrs. Dephne Joseph v. Malik Eric Roshan Khan PLD 1971 Kar.
887, wherein it has also been held that there is nothing in the Family Courts Act by which it can be said that it is inapplicable to the Christians. The above view was further followed in Ramdas v. Mst.
Bernadat PLD 1998 Kar. 42, wherein it was also observed that the case of every non-Muslim pertaining to family matters irrespective of religion would come under the provisions of West Pakistan Family Courts Act, 1964.
12. Against the decree or order made by the Court of Civil Judge in any suit or proceedings under the Divorce Act, 1869 appeal shall be filed in the like manner as the decree and orders of the Court made in exercise of its original jurisdiction or an appeal from under the laws or rules for the time being in force. It would mean that the appeal against the order and judgment of the Civil Judge would lie to the District Court or to the High Court. The remedy of appeal is a statutory remedy provided under the special Act.
13. So far the decrees and orders of the Judge, Family Court are concerned, section 14 of the Act provided the remedy of appeal against the decision given or decree passed by the Family Court to the District Court and to the High Court, where the family Court is presided over by a District Judge, an Additional District Judge or any person notified by the Government to be of the rank and status of a District- Judge or an Additional District Judge.
14. The controversy regarding application of the provisions of West Pakistan Family Courts Act, 1964, has also been dealt with the cases of non-Muslims under Divorce Act, 1869. Christian Marriages Act, Parsi Marriages and Divorce Act, 1936, and Native Converts Marriage Dissolution Act. Federal Shariat Court, in the case Sultan Ahmad v. Mst. Mehr Bhari and another PLD 1982 FSC 48 while dealing section 14(2)(a) of the Act held that in the case of Federation of Pakistan v. Mst. Farishta the word, Muslim personal Law in Article 203 of the Constitution has been interpreted to include all statutory laws, which are enforced for Muslims only. This Court's jurisdiction is excluded in matters of Muslim personal Law. Since it is clear to us that clause. (a) deals only with dissolution of marriage of Muslims it will have to be held that "notwithstanding" the fact that some: or most of the provisions of the West Pakistan Family Courts Act may be applicable to Muslims and non-Muslims alike, the applicability of section 14(2)(a) is confined to Muslims only and as such it falls within the category of Muslim Personal Law. So far as the observation of the Court with regard to section 14 of the Act, it has been observed that section 14 deals with matters of procedure, which are beyond the jurisdiction of Shariat Court.
15. The transfer of the family suit from one Court to another is a matter of procedure only, therefore, application of section 25-A of the West Pakistan Family Courts Act, 1964, to the cases of non- Muslims is not barred. This argument is backing of the case-laws referred to above. Furthermore, the Court of Civil Judge is empowered to hear the petitions C filed under section 10 of the Divorce Act, 1869, and the procedure provided in the Civil Procedure Code is also attracted to the cases tried by the Civil Court and section 24 of the C.P.C. Empowers the High Court to transfer any case pending before the Civil Court to any other Court of competent jurisdiction.
16. In view of the above discussion, it is observed that there is no illegality in the order dated 19-1- 2004 passed by the learned Single Judge of this Court transferring the case of the parties to some other Court. Consequently, for the foregoing reasons, the instant application being devoid of any force is dismissed.