Malik Javid Iqbal Wains J.:- This consolidated judgment shall decide the instant constitutional petition along with connected writ petition No.318 of 2025, titled Tasleem Akhtar, etc vs. Raja Kabir, etc., as in both these petitions common question of law is involved that whether the appellate courts below rightly non-suited the petitioners on the ground that their status as permanent residents of Azad Jammu & Kashmir (hereinafter "AJ&K") excluded them from the territorial jurisdiction of the Family Court at Rawalpindi.
2. Brief facts of the cases are that the petitioners/plaintiffs filed their respective suits for dissolution of marriage on the basis of Khula along with recovery of maintenance allowance and dower before the learned Judge Family Court, Rawalpindi. During the proceedings of the suits, the defendants/respondents submitted applications for return of the plaints, which were dismissed by the courts vide orders dated 04.11.2024 and 20.05.2021, respectively. Feeling aggrieved, the defendants/respondents filed appeals before the Appellate Courts below, which were accepted vide judgments dated 09.06.2021 and 30.11.2024, which have been impugned through these writ petitions.
3. The appellate courts below non-suited the petitioners on the ground that although the parties are temporarily residing in Rawalpindi, Pakistan, however they are permanent residents of AJ & K. It was further held that since the marriages of the parties were solemnized and registered in AJ & K, therefore, no cause of action had accrued at a place in Pakistan.
4. Learned counsel for the petitioners submits that the impugned judgments passed by the appellate courts below are against the law and facts. They argued that both the parties are residing in Rawalpindi, and as such the Family Court at Rawalpindi has jurisdiction to adjudicate the suit of the petitioners. Learned counsel relied upon the case laws reported as Masood Ahmad Malik vs. Mst. Fouzia Farhana Quddus and others (1991 SCMR 681), Mst. Naseem Akhtar vs. Director General Immigration and Passport and others (PLD 2006 Lahore 465), Muhammad Zaman vs. Uzma Bibi and 4 others (2012 CLC 24) & Dilshad Bibi vs. The STATE and others vs. The STATE and others (PLD 2019 Islamabad 476) in support of his contentions.
5. Conversely, learned counsel appearing on behalf of respondents defended the impugned judgments. They contended that the parties are permanent residents of AJ & K and cause of action also accrued there, and as such the Family Court at Rawalpindi has no jurisdiction to adjudicate the matter. Learned counsel submitted that the parties though temporary residing in Pakistan, they are citizens of AJ & K and petitioners have to seek remedy there, in accordance with Family Law of AJ & K, which provides a proper mechanism to deal with such cases. They relied on INAM-UL-HAQ vs. Chairman F.P.S.C., Islamabad and others (2005 SCMR 622), Messers MASTER FOAM (PVT.) LTD and 7 others vs. Government of Pakistan through Secretary, Ministry of Finance and others (PLD 2005 Supreme Court 373) and Noor Hussain vs. The State (PLD 1996 Supreme Court 88).
6. Notice under Order XXVIIA of CPC was issued to the Advocate General Punjab, who submitted his reply to the effect that since the petitioners/mothers and their minor children are residing in Rawalpindi and conducting their daily affairs there, the practical centre of their lives is in Rawalpindi. Further submits that the minor children were born in Rawalpindi and their mother is maintaining their everyday expenditures in Rawalpindi, therefore, for all practical purposes where the cause of actions arise, the Family Court concerned is the proper forum to hear the suit for dissolution of marriage and maintenance on the touchstone of Section 14B of the Pakistan Citizenship Act, 1951 (hereinafter "Act, 1951"). While relying on the case law Muhammad Zaman vs. Uzma Bibi (2012 CLC 24), he adds that the judgment offers an expansive analysis on Section 14B ibid and related provisions, emphasizing that a person, who migrates from the State of Jammu and Kashmir with the intention of residing in Pakistan is to be deemed a "citizen" under Act, 1951. He also refers the Office Memorandum No.8/9/70 (Coord.1), dated 24.06.1970, which reflects that if the formal documents reflect a permanent address in Azad Jammu & Kashmir, the actual, day-to-day residence where the wife ordinarily resides and where the substantive cause of actions arise, is the determinative factor for jurisdiction.
7. Learned Assistant Advocate General Punjab argues that the jurisdiction in matrimonial disputes be determined by the actual and substantial nexus of the parties to the forum, where the cause of action accrues. Further contends that the ordinary residence of the parties are within Rawalpindi, therefore, Family Judge Rawalpindi is vested the jurisdiction to hear and decide the suits filed by the petitioners.
8. Learned amicus curiae, while referring to the provisions of Section 1(2) of West Pakistan Family Courts Act, 1964 (hereinafter "Act, 1964") and Rule 6 of West Pakistan Family Court Rules, 1965 (hereinafter "Rules, 1965") supported the submissions advanced by learned counsel for the petitioners. She argued that under Section 5 of the Act, 1964, the jurisdiction of the Family Court extends to matters relating to dissolution of marriage, restitution of conjugal rights, and other disputes arising between spouses. She further submitted that Rule 6 of the Rules, 1965 specifically recognizes the right of a wife to institute proceedings at the place, where she ordinarily resides.
Learned amicus curiae while referring the Section 14B of the Pakistan Citizenship Act, 1951 added that this provision is not limited only to the citizens of Jammu and Kashmir, but it extends to citizens of AJ&K. It was also the argument that admittedly both the parties are residing in Rawalpindi, therefore, the Family Court at Rawalpindi possesses territorial jurisdiction to adjudicate the matter.
9. Arguments heard. Record perused.
10. One of the condition precedents for invoking jurisdiction of Family Courts Act 1964, besides other requirements stated in Section 5 thereof, is found embedded in the Muslim Family Law Ordinance, 1961, applicability criterion whereof was limited to the Muslim Citizens of Pakistan, wherever they may be. In the context of jurisdictional scope of the Family Courts, eligibility of the petitioners to seek indulgence of the Family Courts is at the heart of the controversy. Status of the petitioners, that if they are the Muslim citizens of Pakistan or not, for the purposes of addressing jurisdictional bar raised under the Act 1964, is determinable through construction of multiple statutory instruments / enactments inter alia including Act, 1951, AJ & K interim Constitution, 1974 and the National Database and Registration Authority Ordinance, 2000 (hereinafter "NADRA Ordinance, 2000"). There is no cavil that petitioners, for all relevant purposes and time are State Subjects of, who are residing in Pakistan and holding valid CNICs issued by NADRA.
11. This special status, state subject(s) is attributed, conferred and recognized in the context of determinable status of the State of Jammu and Kashmir (State) and issue of the Statehood of the people of the State, which included the territory liberated by the people of the State and acknowledged as AJ & K. In the context of this litigation, a sticking question is that what would be the status of the person, who is, though, a state subject, and had moved to Pakistan with intent of residing there, but without prejudicing his status as the subject of the State. Guidance in this regard can be sought from Office Memorandum No. 8/9/70 (Coord.1) dated 24.06.1970, issued by the Cabinet Division, Government of Pakistan, which directed all Ministries and Departments as follows: "Although Azad Kashmir is not part of Pakistan within the meaning of Article 1(2)(b) of the Constitution, it should for all practical purposes be treated like any other Province..."
This directive, while not altering the constitutional status of AJ&K, has consistently governed the manner in which State Subjects of AJ&K are dealt with by the Federal and Provincial Institutions for over five decades. It forms the basis of a functional administrative and legal framework under which AJ&K and its residents are, for all practical purposes, treated at par with other Provinces of Pakistan in matters of governance, service delivery, and access to civil and legal mechanisms. In "Muhammad Zaman vs. Uzma Bibi" (2012 CLC 24) & "Mst. Naseem Akhtar v. Director General Immigration and Passport & others" (PLD 2006 Lahore 465), this Court reaffirmed the binding nature of the Cabinet Division s instructions, holding that this Office Memorandum must be adhered to by all Departments, including Section 14B of the Act, 1951, which allows a citizenship to the State Subjects, who has migrated to Pakistan to be regarded as a citizen of Pakistan.
12. Section 14B of the Act, 1951 was inserted by the Second Amendment Act of 1973, which effect was extended from 20.04.1972, which provides that a person, being a subject of the 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 or her status as such subject, be a citizen of Pakistan. This provision cannot be given a narrow, restrictive, or time-bound construction so as to confine its applicability only to cases of migration prior to the promulgation of Section 14B through the Pakistan Citizenship (Second Amendment) Act, 1973. Likewise, it would be an erroneous interpretation to construe the term "State of Jammu and Kashmir" in Section 14B as being limited exclusively to the territory under occupation, while ignoring the liberated territory recognized as Azad Jammu and Kashmir.
13. The legal position of "State Subjects" as provided in Section 14B of the Act, 1951 was originally defined through the Government of the State of Jammu and Kashmir Notification No. 1-L/84 dated 20.04.1927, which established a distinct legal identity for persons domiciled in the State. After the creation of AJ & K, this recognition was preserved through subsequent enactments, in 1974, the Interim Constitution of AJ&K reaffirmed this position by expressly incorporating the definition of "State Subject," thereby ensuring continuity of the historical status of AJ&K subjects, which is reproduced as under: "State Subject" means a person for the time being residing in Azad Jammu and Kashmir or Pakistan who is a State Subject, as defined in the late Government of the State of Jammu and Kashmir Notification No. I-L/84, dated the 20th April,1927, as amended from time to time;
14. For the purposes of proceedings under the applicable laws of AJ & Kashmir and Pakistan, the term "State Subject" shall be construed to mean a person who, for the time being, is residing in AJ&K or Pakistan and qualifies as a State Subject in accordance with the definition provided in Notification No.I-L/84 dated 20th April, 1927, issued by the then Government of the State of Jammu and Kashmir, as subsequently amended from time to time. This interpretation is to be read and applied in the context of determining legal status, rights, and entitlements under the relevant statutory and constitutional frameworks, where the recognition of State Subject status is a determinative factor.
15. When read in juxtaposition with Section 14B of the Act, 1951, it becomes evident that the legislative intent was to extend Pakistani citizenship to State Subjects, migrating to Pakistan, for the purpose of residence, while at the same time safeguarding their original and distinct character as "State Subjects" until such time as the final settlement of the Jammu and Kashmir dispute. This sequential development of law demonstrates a consistent legislative policy: first, the recognition of the unique identity of State Subjects (1927 Notification), its harmonization with the Pakistan Citizenship (Second Amendment) Act, 1973, and subsequently reaffirmed through the 1974 Interim Constitution of AJ & K. The scheme, therefore, reflects a deliberate duality granting Pakistan citizenship for all practical purposes of national integration, yet retaining the separate identity of State Subject of AJ&K in anticipation of the ultimate resolution of the Kashmir issue.
16. Additionally, the expression "migrated" used in Section 14B being the obvious consequence of movement from one territory to another must be understood in its natural context, which includes travel coupled with the intention to reside in the host country. Section 14B of the Act, 1951, therefore, extends a conditional, transitory, and provisional citizenship to State Subjects of Jammu and Kashmir, subject to the ultimate determination of the political relationship between Pakistan and that State. This statutory recognition acknowledges their right to reside in Pakistan as citizens, and not as foreigners, until such time as their final status is resolved. Acquisition of citizenship by legal fiction under Section 14B does not imply an abandonment of their identity as State Subjects, rather, it reflects the legislative intent to grant them residence and legal protection in Pakistan without prejudice to their original character. Once such status is acknowledged, a person cannot be denied access to the Family Court merely on the ground of being a State Subject of AJ&K. The refusal by the appellate courts, therefore, constitutes an error apparent on the face of the record and warrants correction through the constitutional jurisdiction of this Court.
17. In the present case, the petitioners are holders of valid National Identity Cards (NICs) issued by NADRA. Their residence within Pakistan is evidenced by the address reflected on their CNICs, specifically within District Rawalpindi, thereby constituting prima facie proof of lawful presence in Pakistan. It is pertinent to observe that the Interim Constitution of AJ&K explicitly recognizes AJ&K as a liberated territory forming part of the State of Jammu and Kashmir. Within this constitutional framework, State Subjects who have migrated to and are residing in Pakistan cannot be treated as foreigners. Rather, in terms of Section 14B of the Act, 1951, they are to be regarded as citizens of Pakistan.
18. The NADRA Ordinance, 2000 was promulgated with the object of providing for the registration of all persons and for establishing the National Database and Registration Authority. Section 10 thereof mandates that NADRA shall issue a National Identity Card (NIC) to every citizen of Pakistan, who has attained the age of eighteen years and has been duly registered. Other categories of cards such as the Pakistan Origin Card, Overseas Identity Card, and Alien Registration Card are separately provided under Sections 11, 12 and 13 of the said Ordinance. A plain reading of these provisions makes it evident that a NIC is issued only to citizens of Pakistan and serves as an acknowledgment by the State that the holder is to be treated as such unless his or her citizenship is revoked or otherwise dealt with under the Act, 1951. It is, however, clarified that NADRA under the Ordinance of 2000 has no authority to determine the question of citizenship, which remains within the exclusive domain of the Act, 1951.
19. This interpretation is further reinforced by the fact that issuance of a National Identity Card by a competent authority such as NADRA constitutes recognition of citizenship status, and such recognition carries full legal effect unless and until lawfully revoked by due process. Accordingly, State Subjects residing in Pakistan and holding valid NICs must be treated as Pakistani citizens for all legal and constitutional purposes, including the invocation of rights before Family Courts and other judicial forums within Pakistan.
20. Having said so, this Court holds that individuals, who are recognized as State Subjects of the State of Jammu and Kashmir and are residing in Pakistan, shall be deemed to be citizens of Pakistan in terms of Section 14B of the Act, 1951. Simultaneously, such individuals shall retain their status as State Subjects. This dual legal recognition as both citizens of Pakistan and State Subjects has binding significance in the adjudication of matters relating to personal law, family rights, property entitlements, and civil status within the jurisdiction of Family Courts and other relevant forums in Pakistan.
21. Resultantly, both the writ petitions are allowed. The impugned judgments dated 09.06.2021 and 30.11.2024 are set aside. The matter is remanded to the learned Family Courts, which shall decide such cases on their own merits within a stipulated time, while applying the relevant provisions of the Ordinance, 1961 and the Act, 1964, after affording fair opportunities of hearing to the parties.
Office shall transmit a copy of this judgment to the trial court.