' MUHAMMAD FARRUKH IRFAN KHAN, J.---Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the legality and validity of the Divorce Certificate issued by respondents Nos.1 and 2 on 3.4.2012 whereby divorce pronounced by respondent No,3 upon the present petitioner was declared to be effective w.e.f, 28.2.2012.
2. Brief facts of the case are that marriage between the petitioner and respondent No,3 was solemnized in Lahore on 17.9.2000. The spouses thereafter settled in U.K. As both were holding dual nationality. Out of this wedlock two children, namely, Fatima Asim Hafeez, daughter, and Ismail Asim Hafeez, son, were born, who are also Scotish (UK) nationals. After some time relations between the spouses became strained. Respondent No,3 pronounced divorce to the petitioner and sent its notice to Union Council No,126, Lahore. The Secretary of the aforesaid Union Council sent notice to the petitioner at her father's address in Lahore. At that time the petitioner was in U.K. And she was informed by her father about the receipt of notice of divorce. The petitioner got executed an affidavit at London on 15.3.2012 and after attestation of the same from High Commission for Pakistan, London sent it to the Secretary Union Council/respondent No,2 wherein she deposed that she was U.K. National and the respondent/husband had intentionally shown her in the divorce deed to be resident of Pakistan. She further deposed that she was settled in London (UK) since 24.6.2011 and that she had not received any notice of Divorce. She added that her husband had maliciously and with patent mala fides sent notice of divorce at the address of her father in Pakistan to avoid his obligations of maintenance of wife and children and division/sharing of property. The petitioner also executed special power of attorney in favour of her father for pursuing the divorce proceedings before the Reconciliation Court/Chairman, Union Council. Respondent No,2 proceeded with the divorce proceedings under section 7 of the Muslim Family Laws Ordinance, 1961 and issued the impugned Certificate of effectiveness of the divorce on 3.4.2012, which is impugned in the present writ petition.
3. Learned counsel for the petitioner contended that the petitioner never received any notice of divorce in U.K. Where she was residing at the time of the pronouncement of divorce, execution of the Divorce Deed and sending notice to the Union Council. He further contended that as The spouses were U.K. Nationals and residing outside Pakistan the Chairman, Union Council in Pakistan, (Lahore) had no authority or jurisdiction to continue proceedings and issue the impugned Certificate of Divorce rather under SRO No,1086(K)/61, dated 8.11.1961. Pakistan Mission in U.K. Was authorized to deal with this matter by an officer appointed by the Ministry of Foreign Affairs.
Reliance in this regard was placed on the case of Mian Iffan Latif v. Nazim/Chairman Union Council No, 100 and another (2009 YLR 1141). Learned counsel further submitted that the petitioner was not served with notice of Divorce in U.K. Through Embassy of Pakistan and as such it was violative of the mandatory provision of section 7(1) of the Muslim Family Laws Ordinance, 1961. In this tegard the learned counsel has placed reliance on the case of Romana Zahid v. Chairman, Arbitration Council/Nazim Union Council and another (PLD 2010 Lahore 681). He next submitted that both the parties being the residents of U.K. Only the Pakistan Commission in U.K. Had jurisdiction and authority to initiate proceedings on the divorce deed sent by respondent No,3 and the Chairman, Union Council No,216, New Garden Town, Lahore was not the right forum where such proceedings could be started and culminated into the impugned Certificate of Divorce. In support of his argument the learned counsel has relied upon the case of Syeda Wajiha Ifaris v. Chairman, Union Council No,7, Lahore (2010 MLD 989). On the point of maintainability of the instant constitutional petition in view of remedy of revision which was available to the petitioner under Rule 16 of the West Pakistan Rules under Muslim Family Laws Ordinance, 1961 the learned counsel argued that the impugned Certificate of Divorce being the result of proceedings conducted by a forum not authorized under the relevant provision had no sanctity under the law and the petitioner being aggrieved of such proceedings has rightly invoked the constitutional jurisdiction of this Court. He lastly, argued that the proceedings conducted by respondents Nos.1 and 2 were not only coram non judice but also violative of the mandatory provision of the Muslim Family Laws Ordinance, 1961 inasmuch as no Arbitration Council was formally constituted as mandated by the Ordinance ibid.
4. Conversely, the learned counsel for respondent No,3 argued that the instant petition is not maintainable and as against the order of the Chairman, Union Council remedy of filing revision petition before the Collector, under Rule 16 of West Pakistan Rules made under Muslim Family Laws Ordinance, 1961 is available to the petitioner. Reliance was placed on the case of Dr. Ashfaq Ahmad Khan v. Mst. Samina Khan and others (2008 SCMR 466). He further argued that marriage between the parties was solemnized in Pakistan and 'nikah' was registered with the concerned Union Council, therefore, the respondents Nos.1 and 2 had rightly taken proceedings on receipt of Divorce notice from respondent No,3. He next argued that holding dual nationality by the spouses did not take away the applicability of Muslim Family Laws Ordinance, 1961 to the case of the parties, to the present us, as both are still holding nationality of Pakistan. Reliance was placed on the case of Muhammad Talat lqbal Khan v. Tanvir Batool through Wasim lqbal and 2 others (2005 CLC 481). He finally argued that father of the petitioner being her duly authorized attorney has been pursuing the matter and the proceedings taken by the respondents Nos.1 and 2 do not suffer from any jurisdictional defect and the impugned divorce certificate has been issued in accordance with law.
5. Arguments heard. Record perused.
6. Admittedly, both the spouses are holding dual nationality. At the time of execution of the Divorce Deed both were residing in U.K. This fact is proved from the fact that the Divorce Deed was executed, witnessed and attested in U.K. And it bears the attestation stamp of Consulate of Pakistan, Glasgow. Respondent No,3/husband appointed his arbitrator through a special power of attorney sent from abroad. The petitioner was represented before respondents Nos.1 and 2 through her father, namely, Muhammad Asim Hafeez, as being her attorney. The Secretary Union Council when served notice to the petitioner at the address of her father, it was informed that she is not in Pakistan and residing in the U.K. There is nothing on the record to show that the petitioner was ever served with any notice at her address in U.K. I find weight in the argument advanced by the learned counsel for the petitioner that respondent No,3 should have approached Pakistani Mission in U.K.
For regulating proceedings under the Muslim Family Laws Ordinance, 1961 in view of S.R.O.
No,1086(K)/61, dated 8.11.1961. This is a special remedy provided by the law for overseas Pakistanis.
In identical case reported as Syeda Wajiha Haris v. Chairman, Union Council No, 7, Lahore (2010 MLD 989) notice of Divorce sent by the husband for initiation proceedings under the 'Muslim Family Laws Ordinance, 1961 by the Chairman Union Council No,7, Lahore was declared to be incompetent and he was directed to approach the Pakistan Mission in Romania to register the divorce pronounced by him upon the petitioner in the said case. In the present case respondent No,3 had the remedy of approaching the Pakistan Mission in U.K. For reconciliation or effectiveness of the Divorce Deed. He seems to have intentionally avoided the said remedy. Such a conduct shown by him supports the argument of the petitioner's counsel that respondent No,3 wanted to prevent the petitioner from proceeding with the remedies available to her before the appropriate forum in U.K., admittedly whose nationality and residency both hold.
7. Another aspect of this controversy is that during the pendency of this writ petition this Court has also received a letter dated 15.3.2013 from David du Pre & Co. Solicitors London, U.K. Wherein it has been stated that the said firm of solicitors represents Muhammad Asim Hafeez, the respondent, in a matter pending before High Court of Justice, Family Division, London, England in proceedings commenced against him by Sana Asim Hafeez, the petitioner. It has further been stated that the Hon'ble High Court of Justice, Family Division, London has directed the petitioner to bring to the attention of Lahore High Court the order passed by the learned Judge Mrs. Justice Parker on 29.11.2012. A perusal of the said order shows that the petitioner/Asim Hafeez has submitted to the jurisdiction of the Family Division of the High Court of Justice, London, U.K. And is being represented by the aforesaid firm of solicitors. The aforesaid Judge assuming jurisdiction in the matter has, inter alia, ordered as follows:-- "1. Until further order, the Respondent, Muhammad Asim Hafeez, whether acting by himself or through his servants or agents or anyone n""-- pursuant to a Power of Attorney or other form of authority from him, must until further Order of this Court:
(a) not take any further steps whatsoever to progress or pursue the divorce proceedings initiated by him in Pakistan in the Lahore High Court under Writ number 21610 of 2012;
(b) Forthwith take all steps necessary to ensure the Pakistan suit does not progress to include applying for a stay and providing documentary evidence (in England) of the same being made including the outcome of such application;
(c) Not take any steps to institute fresh divorce proceedings in Saudi Arabia or Dubai;
(d) In the event that he has instituted such proceedings in Saudi Arabia or Dubai to inform the Applicant/Petitioner forthwith upon service of this order upon him and to immediately take all steps necessary to ensure that such suits do not progress including applying for a stay, if necessary.
2. Paragraph 1 of this order shall continue to have effect until the next hearing in this application unless, in the meantime, they, or either of them, are extended whether by consent in writing or by order of the Court made on an application on notice.
3. Leave is given to the Applicant/Petitioner to disclose this order to:
(i) the Lahore High Court; and
(ii) her legal advisors in Pakistan
4. Permission is given to the Applicant's solicitors to serve this order upon the Respondent through his solicitors for onward transmission to the Respondent who is currently out of the jurisdiction.
5. The matter shall be listed for further hearing on Thursday 6 December 2012 AT RISK (subject to confirmation with the Clerk of the Rules) with a time estimate of 30 minutes.
6. Costs reserved."
' A basic requirement of the family laws of this country is that the proceedings in family matters are to be instituted where the children or the wife ordinarily reside. As it is an undeniable fact that both the parties are permanent residents of U.K., therefore, the Arbitration Council in Pakistan had no jurisdiction to proceed in the matter. Furthermore, as the Hon'ble Court of Justice, Family Division had already assumed jurisdiction of the dispute between the estranged spouses, commencement and prosecution. Of the same cause before forum of reconciliation court/Chairman Union Council No,216, Garden Town, Lahore is tainted with mala fides and such proceedings do not have the backing of the law.
8. Furthermore, in the circumstances of the case as discussed above, this Court finds no force in the argument of the learned counsel for the respondents that when the remedy of filing revision is available to the petitioner, she cannot invoke the constitutional jurisdiction of this Court. The whole proceedings initiated by respondents Nos.1 and 2 are found to be in violation of the applicable law and rules and as such mala fide on their part being public functionaries is floating on the surface of the record. In the case of Muslimabad Cooperative Housing Society v. Mrs. Siddiqa Faiz and others (PLD 2008 Supreme Court 135) it has been held that when act of the statutory functionary is mala fide, availability of alternate remedy would not bar jurisdiction of High Court to entertain constitutional petition. It is further observed that entertaining writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the court regulates its jurisdiction. When a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, then the High Court, in exercise of its writ jurisdiction, has power to grant relief to the aggrieved party.
9. For the foregoing reasons, I am of the considered opinion that the respondents No,1 and 2 had no jurisdiction to initiate proceedings on the notice of Divorce Deed sent by respondent/husband and to issue the impugned certificate. Consequently, the instant petition is allowed with costs and the impugned Divorce Certificate is declared to be null, void and of no legal effect.