MUHAMMAD AFZAL LONE, J.-The events which led to this litigation between the parties, are, that- the petitioner was married to the third respon--dent on 23-5-75 at Wah, District Campbellpur now called Attock. He was then employed in U. S. A. And soon after his marriage left for America. The third respondent joined him in August, 1975 and stayed in America up to November 1977, when she departed for Pakistan and came to her parents in Wah. The petitioner also visited Pakistan, and according to him, the parties resided together in the house of his parents-in-law till March 1978, when he again left for U. S. A.
2. It appears, as the misfortune would have it, the couple could not pull on well, and on 4-11-1979 the petitioner pronounced talaq and sent a notice thereof to respondents Nos. 1 & 2 and simultaneously, he endorsed its copy to his wife at her address in Wah, as well as in U. S. A, as required by section 7 of the Muslim Family Laws Ordinance, 1961. The third respon--dent was then residing in U. S. A. But in separation, along with her two minor sons, born out of this wedlock. The notice was returned back, by the Secretary, Union Council, Wah, to the petitioner with the endorsement, that in pursuance of rule 3 (b) of the Rules framed under the Muslim Family Laws Ordinance, the notice of talaq could not be registered in that Union Council, as the third respondent did not reside within its territorial limits. It was accompanied by a covering letter, Annexure C/l, stating that the Union Council had no jurisdiction to proceed in the matter.
3. The petitioner then sent a second notice, Annexure 'D', to respondents Nos. 1 and 2 but it was also returned to him with the same remarks. Even his third notice, Annexure E, reportedly, met the same fate. It is averred that the copies of these notices were also endorsed by him to the third respon-- dent, by registered post, which were served on her.
4. Having failed to invoke the jurisdiction of the Chairman, Union Council, Wah, for constitution of an arbitration council, as envisaged by section 7 (4) of the 'Ordinance, the petitioner moved this Court under Article 199 of the Constitution, trough Writ Petition No. 511/80 for issue of a direction to respondents Nos. 1 and 2 to constitute an arbitration council and declare the talaq pronounced by him, as absolute.
5. The third respondent contested the petition. In fact respondents Nos. 2 ands 3 filed a joint written statement.She denied to have received any notice, and in fact contended that the petitioner never despatched any notice at her correct address in U. S. A. Further, she specifically pleaded that the couple never resided, but only stayed together for short periods in Pakistan The petitioner's assertion, that they last resided together, within the area of the Union Council, With, was also controverted by her, Since her defence is embodied in para. 7 of the written statement it will be useful to reproduce it hereunder;-- "That according to rule 3(b) (1) of Pakistan Muslim Family Laws Rules Union Councils in Pakistan have no jurisdiction to entertain the matter as-
(i) at the time talaq was pronounced wife was not residing in Pakistan ; (ii) the parties never resided together in Pakistan ;
(iii) the petitioner does not permanently reside in Pakistan.".
The written statement further disclosed, that the third respondent had already brought a materimonial case against the petitioner, in 24th Judicial District Court, Parish of Jefferson, Lou- isiana, U. S. A. The written statement was supported by a sworn affidavit of the father of third respondent, wherein he deposed that she as well as the petitioner are permanent residents of U. S. A. Both of them are green-card holders and assessed to income tax.
6. A learned Single Judge of this Court who was seized of the matter, by his judgment dated 8-10- 1980 maintained that a disputed question regard--ing the parties' residence, within the limits of Union Council, Wah, on which its jurisdiction dependent, had been raised but such a controvertial issue could not be decided in those proceedings. Accordingly, he disposed of the petition with the observation that the petitioner may seek his remedy in the appropriate forum. '
7. This judgment is now sought to be reviewed. The learned Single Judge on 13th October, 1980, recorded the following admitting note;- "Contends inter alia that the prayer as made in the writ petition has not been taken into consideration while disposing of the same vide this Court's order dated 8th of October, 1980. He submits that under section 6 of the Muslim Family Laws Ordinance, 1961, Chairman of the Union Council after receiving notice has to constitute an arbitration council within 30 days of the receipt of notice and that council will be competent to determine the question with regard to jurisdiction or otherwise. He submits that the Chairman of the Union Council in question had no jurisdiction to return the notice of talaq saving that his Union Council had no jurisdiction and that too without hearing the petitioner. He submits that since this aspect of the case has not been considered in the impugned order, the same may be reviewed.
(2) Admit. Notice for an early date." .
8. We have heard the learned counsel for the parties and examined the record. It is evident from the order that at the admission stage, the peti--tioner's argument has mainly been, that it was incumbent upon the Chairman, to have constituted an arbitration council, which could competently decide the jurisdictional issue. However, his submissions before us were marked with a little drift, inasmuch as the only point urged by him, was that the Chairman Union Council, should have held an inquiry on the question of residence; given the petitioner an opportunity of being heard and then taken a decision, whether or not the notice could be served on him. Since this ground has been taken in the memorandum of, the review application, and is also implicit in the admitting note, we have heard the petitioner's learned counsel in this behalf. Needless to mention, that this argument, is in consonance with -rule 3, as service of notice on the Chairman of the Union Council concerned, is a con--dition precedent for assumption of jurisdiction by him for constituting an arbitration council.
9. On behalf of the third respondent, her learned counsel largely reiterated the stand taken by her in para. 3 of the written statement quoted in extenso in the earlier part of this judgment. He vehemently contended that she never at any time, resided with the petitioner' in Pakistan and the letter being a permanent resident of U. S. A, no Union Council in Pakistan, much less Union Council, Wah, would have jurisdiction in the matter. . Obliquely, it was also submitted that the civil Court alone could adjudicate upon this disputed question.
10. Since the fate of this. Case largely hinges on the interpretation of rule 3, for facility of reference it is reproduced below: "3. The Union Council which shall have jurisdiction in the matter for the purposes of clause (d) of section 2 shall be as follows, namely:-
(a) ---------------------------.
(b) in the case notice of talaq under subsection (1) of section 7, it shall be the Union Council of the Union or Town where the wife in relation to whom talaq has been pronounced was residing at the time of the pronouncement of talaq: Provided that if at the time of pronouncement of talaq such wife was not residing in any part of West Pakistan, the Union Council that shall have jurisdiction shall be---
(i) in case such wife was at any time residing with the person pronoun--cing talaq in any part of West Pakistan, the 'Union Council of the Union or Town where such wife .So last resided with such person; and
(ii) In any other case, the Union Council of the Union or Town where the person pronouncing the talaq is permanently residing in . West Pakistan; and (c)------------------------------------ It is admitted on both sides, that. At the time of pronouncement of talaq, the third respondent was residing in U. S. A. Obviously, the principal clause 'b' would not be attracted. What is to be seen, is, whether sub-clause (i) or (ii) or both would be applicable. The words 'last resided' and `permanently resides' and the cognate expressions figure in C. P. C., Cr. P. C., Divorce Act and in some other Statutes as well. In the context of these Acts, these words have also been judicially construed and found amenable to a variety of meanings, depending upon the purposes of the Statute in which these are used. In Mohamed Shuffi v. Laldin Abdullah (1). Sergent, J., while construing the word 'residing' as used in section 380 of old Civil Procedure Code (Act X of 1877), after drawing upon some case-law, maintained: "These cases show that the word 'residence' may receive a larger or more restricted meaning according to what the Court believes the intention of the Legislature to have been in framing the particular provision in which the word is used."
In re: Bowie Ex parte, Breull (2), James L..J., in. Interpreting rule 17 of the Bankruptcy Rules, 1970, expressed the view;-- "The words residence and - business have no actual definite technical meaning, but that you must construe them in every case in accordance with the object and intent of the Act in which they occur."
(1) I L R 3 Bom. 227(2) 16 :Ch. D 484 It would be, therefore, the burden of this judgment to discover the real import of the words 'last resided' and `permanently residing', as they occur in sub-clauses (i) and (ii) respectively.
11. Normally, be word 'residence means to make an abode and to dwel though not permanently yet for same length of time. There is however,. Unanimity of view that it does not include a casual stay or a flying visit to a particular place. The words 'reside' and 'last reside', construed in Jogendra Nath Banerjee v. Elizabeth Banerjee (1), which was a matrimonial matter, under the Indian Divorce Act, 1869, and it was held.:- "Taking the word in its ordinary acceptation it conveys, I think, the idea, if not of permanence, at any rate of some degree of conti--nuance. The degree of continuance is not capable of precise defi-- nition, . . . . . The residence to which the Act points must be something more than occupation during the occasional and casual visits within the local limits of the Court, more especially where there is a residence outside those limits marked with a considerable measure of conti--nuance."
The Bombay High Court In re : Sama Jetha (2) ' on a review of the case --law, on the subject, determined the scope of the words 'last resided' as used in section 488(8), Cr. P. C., to hold that their meanings are not to be restricted to permanent residence but would include the husband's 2 months- residence with his wife at house of latter's parents, to confer jurisdiction on the Court Sher Singh v. Mst. Amer Kuer (3) and Emperor v. Janki and another (4) also support this' view, G. G.
Ritchson v. W. L. D. Ritchson (5), was a case for judicial separation by the wife, against her husband, who did not have any permanent residence; but while on leave spent 2 months with his wife at the house of her parents at Calcutta. Ameer Ali, J. Took the view that the husband last resided at Calcutta within the meaning of section 3 of the Divorce Act. It would thus follow, that these words do not necessarily refer to permanent residence but also imply temporary residence and may received a narrow or a liberal construction, according to what the Court considers to be the intention of the law-maker, and the purpose of the Statute in which these are found.
12. We cannot loose sight of the fact, that the parties are natives of District Attock. Their Niklth as disclosed by Nikahnama (Annexure A) was solemnised at Wah, on 23-5-1975 written the limits of Union Council, Wah. It is but natural to presume, that alter her marriage, the third respondent, must have lived together with the petitioner presumably, in his house, for sometimes, may be for a couple of days only, before he left for U. S. A. In our view, where person has a permanent or quasi- permanent. Abode, howsoever short his stay therein may be, that would constitute residence for the purposes of sub clause (f) of rule 3, but where a person is obliged to leave his place o residence and goes to some other place on an occasional visit, the place o such visit, cannot be considered as his residence. Of course, the position is somewhat different, where a person has no fixed residence. A fort Light stay in a hotel at Calcutta was held by Fletcher J. In Bright v. Bright (6) enough to satisfy the requirements of section 3 of the Divorce Act. Similarly in Mobel Flora Murphy v.
James Lloyd Murphy (7) both husband and wife had no permanent place of residence and lived at several places after their marriage. They last resided in a hotel at Bombay. Such residence was construed sufficient for the purposes of jurisdiction of the Court under that Act. The view, which we have taken finds ample support from the object of the Muslim Family Laws Ordinance, the intention of the Legislature and the language of rule 3.
(1) (1899) 3 C W N 260(2) AIR 1930 Bom. 348
(3) AIR 1927 All. 291(4) AIR 1932 Nag. 85(2)
(5) AIR 1934 Cal. 570(6)' (1909) 36 Cal. 964
(7) AIR 1921 Born. 211
13. It is to be noticed that in sub-clause (ii) the word 'residing' is preceded by the adjective 'permanently' but no such qualifying word figures in sub-clause (i). We have been driven by this omission, to an inference that such permanency as attributed to residence in sub-clause (ii) is not intended to be given to the factum of last residence. While inter--preting the provisions of the Muslim Family Laws Ordinance and the rules framed under it, another matter of much significance, to be borne in mind, is, that it has extra-territorial applicability as it applies to all the Muslim citizens of Pakistan, wherever they may be. The words 'last resided' has a nexus with the territorial jurisdiction of the Union Council and, there--fore, mean residence in Pakistan and not in a foreign country. The impact of section 7 would also be relevant in construing the Ordinance and the rules.
The provisions of this section are not only mandatory, but their contravention has also been made punishable with simple imprisonment for a term which may extend to one year or with a fine to the extent of Rs. 5,000 or both. Furthermore, it is now well settled that a divorce not routed through the procedure contemplated by section 7 of the Ordinance, does not become effective. Thus, if the argument of the respondent's learned counsel is accepted that the parties never resided together in Pakistan, its consequences will be very serious. Despite the pronouncement of divorce by the petitioner, the respondent would continue to remain clothed with the status of his wife and entitled to the rights attached to such status. The construction put on rule 3 by the respondent's learned counsel would thus defeat the intention of the Legislature and lead to unjust result. Such an interpretation has got to be avoided. The words 'last resided' therefore, should receive liberal construction. In this context, when we examine the written statement, which embodies an averment, that the parties stayed together for short periods in Pakistan, we have no hesitation in characterising such stay as residence, for application of sub-clause (i). How so short, the duration of this stay may have been, it falls within the mischief of rule 3.
14. We, may now turn to the question of permanent residence of the petitioner as envisaged, by sub-clause (ii). It is discernible from the record that the petitioner's address in the nikahnama is recorded as 'village Salar, Tehsil and District Campbellpur', however, in the writ petition as well as in the affidavits appended therewith, he showed himself as resident of Hospital Road, Attock City. It cannot be disputed that the petitioner has his ancestral home in District Attock, he off and on visits his native place and has not severed his connections with it. This inference finds support from the contents of the written statement that the petitioner has been visiting .Pakistan ; his two affidavits placed on the file of writ petition, which were sworn at Lahore, and so also the notices (Annexures A/ 1, D & C) sent by him to the respondents from Attock City. The Union Council's letter (Annexure C/1) was also despatched to the petitioner at the same address. It is not the respondent's case that the petitioner has renounced his status as a citizen of Pakistan. So far as we are aware, U. S. A. Is not amongst the countries, notified by the Federal Government under section 14(3) of the Pakistan Citizenship Act, 1951 as amended by Act XVII of 1972, for the purposes of retention of dual citizenship or nationality, by the citizens of this country. Even if the petitioner has established himself in America, and at present is permanently residing there, strong motive for his intention to return to his home, in District Attock, is still to be found in his attachment to his birth place and motherland, as-evidenced by his retention of citizenship of origin and occasional visits to Pakistan.
Thus, despite his acquisition of permanent residence in U. S. A., we are not inclined to hold that he has foresaken his home in District Attock. In Attorney-General v. C. H. Cooti (1) it has been laid down;-- "It is no uncommon thing for a gentleman to have two permanent residences at the same time in either of which he may establish his abode at any period and for any length of time."
In Sophia Odd and another v. Allexander Skinner (2) the judicial committee recognised the rule, that a person may have more than one dwelling place, to attract the territorial jurisdiction of the Court, under section 5 of, the Civil Procedure Code of 1859. It would thus appear, that the concept of having more than one permanent residence, is, at alien to law. We are inclined to hold that when the petitioner pronounce Talaq, he did not cease to be a permanent resident of District Attock for the purpose of sub--clause (ii).
15. The real difficulty arising in this case, is, to find out, as to whether or not the parties 'last resided' or the petitioner's permanent residence, was within the jurisdiction of Union Council, Wah, to cast statutory obligation on the Chairman of that Union Council, to constitute an arbitration council under section 7(4) of the Ordinance. There is no sufficient material on the record for conclusive determination of this issue. We agree with the petitioner's learned counsel that the Chairman in this respect, was bound to hear the petitioner, and then give a verdict on the question of jurisdiction.
We would have sent the case to the Chairman, Union Council Wah. With the direction to hold an inquiry and hear the petitioner in the matter, but we find that he has levelled serious allegations of misconduct against the Chair--man. It is not for this Court, to determine whether or not he mis- conducted. The petitioner's remedy in this behalf lies, in moving the Collector under rule 6-A of the Ordinance.
16. We may, here, deal with another contention of respondent's learned counsel that the dispute regarding the residence is justiciable before the Civil Court. We are unable to agree with him.
Section 7 ordains that notice must be sent to the Chairman of the Union Council, having jurisdiction under rule 3. After a valid notice has been served on him, he has to proceed further in the matter, and constitute an arbitration council. In the first instance, therefore, it would be for the Chairman concerned to see, whether or not a notice has rightly been served on him. Certain rights and obligations flow from the Ordinance, which is a special enactment. Such rights and obligations, therefore, shall be enforcible through the agencies under the Ordinance. However, if such agencies, exercise jurisdiction, beyond the sphere allocated to them in law, the Civil Court may rightly step in.
(1) (1817) 4 Price 183(2) 1 L R 3 All. 91
17. The objection that there is, no valid ground for review, is yet to be disposed of. We feel, that this submission is also without any force. It is quite clear to us, that important issues which had been raised in the writ petition were not determined in the judgment under review, presumably for the reason that the case was heard by the learned Single Judge, in the absence of the petitioner as well as his counsel. This omission would furnish a valid ground for review.
18. As a result of this discussion, we allow this review application to the extent that the petitioner may move the Collector Attock, under rule 6-A, who shall look into the allegations as to the misconduct of the Chairman, Union Council Wah. In case the petitioner's contention is accepted by him and the matter transferred to another Chairman, then such Chairman, otherwise the Chairman Union Council Wah, shall determine the question of jurisdiction in the light of the observations made in this judgment and take further steps in the matter in accordance with law.
The Collector, if moved by the petitioner, shall decide his petition within six weeks of its institution.
The parties are left to bear their own costs.