1. ' This judgment will dispose of Writ Petitions Nos,7153/89 and 8072/89 as common question of law is involved in both these petitions wherein proceedings before the Chairman, Union Councils under section 7 of the Muslim Family Laws Ordinance, 1961 (hereinafter referred to as "Ordinance") have been challenged.
2. ' Facts of Writ Petition No,7153/89 are that the petitioner Mst. Saima Rashid, a Muslim citizen of Pakistan, entered into a marriage contract with respondent No,1, a U.S. Citizen, on 22-12-1986 at Lahore and the marriage was registered in accordance with the provisions of the Ordinance at Ward No,7 Cantonment Lahore. A child was born out of this wedlock. It is the case of the petitioner that respondent No,1 brought her to Pakistan in July, 1989 and went back within a few days to USA without informing her. The petitioner in the meantime received a notice from respondent No,2, Chairman, Union Council, Ward No,7, Cantonment, Lahore for her appearance in a proceeding emanated out of a notice of Talaq purportedly given under section 7 of the Ordinance by respondent No,l. The petitioner took exception to the proceedings and also approached the Collector, Lahore, in this behalf on the ground that respondent No,1, being a U.S. Citizen cannot invoke the jurisdiction of respondent No,2 Chairman, Union Council under section 7 of the Ordinance.
3. ' In Writ Petition No,8072/89 petitioner Gul Nigar was married to respondent No,2 a U.S. Citizen on 22-9-1984 and Nikah was registered according to the Ordinance at Ward No,4 of Lahore Cantt. It is the case of the petitioner that respondent No,1, Chairman, Union Council has allegedly initiated proceedings on a notice given under section 7 of the Ordinance by respondent No,2. The case of the petitioners in both these writ petitions is that their respective Chairmen, Union Councils have got no jurisdiction in matter as section 7 of the Ordinance read with section 1(2) clearly contemplates that the proceedings under the Ordinance can be invoked only by any man who is a Muslim citizen of Pakistan, whereas the respondents' husbands in both these writ petitions are U.S. Citizens.
4. ' It has been argued by the other side that the Ordinance would be applicable as the petitioner in both these writ petitions are Pakistani Muslims/citizens and their marriages have been registered under the Ordinance. It has also been argued by the learned counsel Mr. Ali Sibtain Fazli in Writ Petition No,8072/89 that the Ordinance is also applicable not only to Muslim citizens of Pakistan but also applies to all persons within the territorial limits of Pakistan. He has mentioned that a Muslim in transit without being a citizen of Pakistan can even invoke the provisions of section 7 of the Ordinance. He has advanced a further argument that generally divorce proceedings are to take place where the wife is domiciled and the general principle that the wife would acquire the domicile of her husband at marriage has undergone a tremendous change by passage of Domicile and Matrimonial Proceedings Act, 1973 in England. On this basis it is argued that the petitioner has not yet acquired the domicile of her husband and is still retaining her Pakistani domicile as such the proceedings under section 7 of the Ordinance would be competent before the Chairman at Lahore which is the place of domicile of the lady.
5. ' Mr. Farooq Bedar learned Addl. A.-G. Has supported the writ petitioners' contention that the Ordinance can only be invoked by a Muslim citizen of Pakistan.
6. ' I have considered the contentions. The provisions of the Ordinance relevant for the disposal of these writ petitions are as under:-- ' Section 1(2): It extends to the whole of Pakistan, and applies to all Muslim citizens of Pakistan, wherever they may be.
7. ' Section 5(1): Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance.
8. ' Section 7(1): Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to his wife.
9. ' As far as the first argument of the learned counsel that since the marriage was registered under the Ordinance as such the dissolution can only take place under section 7 has got ho force.
10. ' In both these cases the petitioners are citizens of Pakistan and their marriages were registered as section 5 of the Ordinance provides that every marriage solemnized under Muslim Law is to be registered thereunder. Rule 12 of the West Pakistan Rules under Muslim Family Laws Ordinance, 1961 further casts responsibility for the registration of marriage upon the citizens of Pakistan in case the marriage is solemnized outside Pakistan. It has been held by the Hon'ble Supreme Court in Ali Nawaz v. Muhammad Yusuf (PLD 1963 SC 51) that section 5 of the Ordinance appears to be general in character, with the only limitation that the marriage should have been solemnized under Muslim Law. It is impossible to read into it a further limitation that the marriage should necessarily be between two Pakistani Muslims. A marriage entered into by a Pakistani Muslim with, say, an Indian Muslim woman, would seem to fall within the purview of this section, if it is performed within Pakistan. Simply on the basis that the petitioners' marriages were registerd in Pakistan,.
11. Respondents/husbands cannot invoke the provisions of section 7 of the Ordinance.
12. The applicability of section 7 of the Ordinance is to be established independently. It provides that a man may pronounce the Talaq in the manner prescribed therein. However, reading of section 1(2) alongwith section 7 of the Ordinance makes it clear that it can only be invoked by a man who is a Muslim citizen of Pakistan. Both the respondents have not denied their U.S. Citizenship. They have not stated that they are citizens of Pakistan. Argument of the learned counsel Khawaja Muhammad Habibullah in Writ Petition No,7153/89 that respondent Dr. Imran Riaz Imami's Pakistani citizenship has gone under hybernation, even if it is admitted, would not have any effect on this case as he is no more citizen of Pakistan at this juncture. The petitioners in their writ petitions have also appended a certificate dated 4-10-1989 issued by Ministry of Interior wherein it has been stated as under:- "Certified that Pakistan Nationality Laws have provisions for Dual Nationality in respect of U.K., Canada and Australia on reciprocal basis. Since there is no provision for allowing Dual Nationality in the U.S. Nationality Laws, therefore, Pakistan Nationals on acquiring U.S. Nationality cease to he citizens of Pakistan and vice versa."
13. Section 14(1) of the Citizenship Act, 1951 also provides as under:-- "14. Dual citizenship or nationality not permitted.--(1) Subject to the provisions of this section if any person is a citizen of Pakistan under the provisions of this Act, and is at the same time a citizen or national of any other country, he shall, unless he makes a declaration according to the laws of that other country renouncing his status as citizen or national thereof, cease to be a citizen of Pakistan."
14. ' Without adverting to the efficacy of certificate it can be said and the same is not denied by the respondents that they are not citizens of Pakistan. It has been held in Saeed Ahmad v, Mahmood Ahmad (PLD 1968 Lahore 520) that.-- ' the general law governing succession where parties are Muslims in the Muslim Personal Law acccording to which the children of a predeceased child are excluded from inheritance and that the exception created by section 4 of the Ordinance would not apply in such cases because the Ordinance specifically enacts that it applies to Muslim nationals of Pakistan. This contention appears to me to be correct in view of the provision contained in subsection (2) of section 1 of the Ordinance which clearly lays down that the Ordinance "applies to all Muslim Citizens of Pakistan wherever, they may be." The provisions contained in section 4 of the Ordinance creating an entitlement to succession in favour of the children of a predeceased son or daughter are in the nature of a departure from the accepted Muslim Law of inheritance and cannot be applied to all Muslims residing in Pakistan, unless the intention of the law is so clear as not to permit any other interpretation. Now, in view of the scope of the Ordinance as outlined in subsection (2) of section 1 thereof it is clear that its application is restricted to Muslim nationals of Pakistan. To that extent, therefore, the position seems to be that it is not necessary that all Muslims residing in Pakistan, irrespective of their nationality, should be governed by this Ordinance; on the contrary the presumption would be that they would be governed by the Ordinary Muslim law of inheritance, as that is the law of the land in Pakistan is so far as the general body of Muslims is concerned."
15. ' The other argument of the learned counsel that the proceedings under section 7 of the Ordinance can be initiated at the place of the domicile of the wife loses all its importance and need not to be gone into once it is held that the proceedings under section 7 of the Ordinance can only be initiated by a man who is a Muslim citizen of Pakistan.
16. ' The two cases relied by both the parties titled Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (PLD 1963 SC 51) and MRs, Marina Jatoi, Christian, Adult, residing at 98, Lebury Road, London. W.II, United Kingdom v. (1) Nuruddin K. Jatoi, Muslim, Adult, Barrister-at-Law etc. Muhammadi House, McLeod Road, Karachi and (2) The State (PLD 1967 SC 580) are distinguishable and arc not applicable to the facts of the present cases. In the aforementioned cases of the Supreme Court, husbands were Muslim citizens of Pakistan and the applicability of section 7 of the Ordinance in case of a man who was not Muslim citizen of Pakistan, was not considered. On the contrary, I am fortified in my view that the Muslim Family Laws Ordinance, 1961 is only applicable to Muslim citizens of Pakistan by a recent judgment of the Hon'ble Supreme Court titled Masood Ahmad Malik v. Mst.
17. Fouzia Farhanae Qaddus and others 1991 SCM R 681. Here in this case both the parties, who were Muslim American citizens, while in Pakistan, relations between them became strained and the husband pronounced Talaq and initiated proceedings under section 7 of the Ordinance before the Chairman, Arbitration Council, Islamabad, who accepted the objection of the other party that the parties having become American citizens, the Ordinance would not be attracted. The husband thereupon filed a suit for jactitation of marriage and alternatively for declaration to the effect that the parties are no longer husband and wife before the learned Senior Civil Judge exercising the powers of Judge Family Court at Islamabad. While upsetting the view of the High Court taken on the point of the jurisdiction of the learned Civil Judge/Judge Family Court, Islamabad, the Hon'ble Supreme Court remanded the case for trial and its adjudication on merits by applying the proper law of the parties. The learned Judge further observed that:- "The provisions of the Muslim Family Laws Ordinance, 1961 will undoubtedly not apply in the determination of the suit and the suit will be heard and adjudicated upon by the proper law of the parties. As to what the proper law applicable to the parties will be, shall be decided by the learned trial Court by reference to the principles of. "Conflict of Laws" (also called Private International Law).
18. Considerable guidance on this question is available from this Court's judgments in the cases of Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (PLD 1963 SC 51 at page 65) and MRs, Marina Jatoi v. Nuruddin K. Jatoi and another (PLD 1967 SC 580 at page 599)."
19. ' For what has been stated above these writ petitions are accepted. The proceedings before the Chairman, Arbitration Council in both these writ petitions are declared to have been initiated without lawful authority and of no legal effect. The parties are left to bear their own costs.