MEHBOOB ALI KHAN, J.---This Constitutional petition arises in the circumstances that follows.
2. Rehmatullah son of Abdullah and Mst. Shamim Akhtar daughter of Muhammad Miskin are subject of the State of Azad Jammu & Kashmir. They were married as husband and wife at Muzaffarabad in the year, 1981. The lady lived in the wedlock for about three years and a baby was also born. The spouses could not, however, live a happy married life for long and differences arose between them which ultimately took a serious turn when the wife was obliged to file a suit before the Court at Muzaffarabad for the dissolution of marriage followed by a suit by the husband for the restitution of conjugal rights. The learned trial Court after consolidating both these suits disposed it of by a single judgment decreeing shit of the husband for conjugal rights and dismissing simultaneously that of the lady-wife for dissolution of marriage. On appeal to the District Judge Muzaffarahad a decree for dissolution of marriage on the basis of ' Khula' was recorded to favour of the wife the Appellate Court being of the view that it was no more possible for the couple to live as husband and wife within limits ordained by Allah. On appeal of the husband before the High Court the judgment and decree of the District Judge was set aside on the ground, that as no relief was sought by the wife on the basis of ' Khula' nor there was any issue framed on the point, the decree could not be passed in favour of the lady on that ground. Mst. Shamim Akhtar being not satisfied went in appeal before the Supreme Court of Azad Jammu & Kashmir on the judgment and decree of the High Court, dated 9-10-1988. Her appeal was heard before a Division Bench of the Supreme Court but dismissed on 10-6-1989. The august Supreme Court observed-- "that for making out a case for dissolution of marriage on the basis of ' Khula' there must appear circumstances on the record showing that it is impossible for the couple to live as husband and wife according to the tenets of Islam. Similarly, in case of feelings of hatred there must be circumstances or reasons on the record for the existence of such hatred in the mind of the wife so that the Court may ascertain as to whether the hatred is of genuine nature or it is merely a figment which is pleaded as vehicle for obtaining a decree for dissolution of marriage. There exist no circumstances in the instant case for drawing such an inference."
3. After her efforts having failed to get fruit at Muzaffarabad, Mst. Shamim Akhtar chose to select Mansehra for temporary residence somewhere after the year, 1989 and showed determination again to try her luck by filing a like suit before the Family Court at Mansehra in the year, 1992 --- claiming dissolution of marriage on the basis of non-maintenance and 'Khula'. Rehmatullah the husband resisted the suit by filing a written statement and pleading, inter alia, that Family Court at Mansehra had no jurisdiction to entertain the suit as the matter had been already decided by a competent Court in Azad Kashmir. The learned Family Court on the basis of pleadings which it received from the parties settled as many as six issues including Issue No.2 relating to jurisdiction of the Court at Mansehra. It then recorded evidence of the parties pro and contra and ultimately by judgment and decree, dated 27-9-1994 recorded a decree for dissolution of marriage in favour of the lady--wife on the basis of ' Khula' . For assuming jurisdiction in the matter the Judge Family Court did not record any specific finding on Issue No.2 but stated only that he was competent to entertain the suit at Mansehra. The learned Judge, however, conveniently escaped himself from mentioning a word on the judgment delivered on the dissolution suit of the lady plaintiff by a competent. Court at Muzaffarabad and of the protracted litigation in the case which went between the spouses up to the Supreme Court of Azad Jammu & Kashmir. As no appeal under section 14 of Act XXXV of 1964 shall lie from a decree passed by a Family Court for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939 and there being also no efficacious reined` available to the husband before any other competent forum, he was obliged to agitate this matter before this Court in Constitutional jurisdiction conferred by Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 with a prayer, that the impugned judgment and decree of the Family Court having been recorded without lawful authority be declared of no legal effect.
4. We have heard Malik Muhammad Asif, Advocate on behalf of the writ-petitioner and Mr. Ejaz Afzal Khan, Advocate for the respondent lady. Admittedly, Mst. Shamim Akhtar by instituting a suit before a competent Court at Muzaffarabad asked for the dissolution of marriage against her husband. She was although equipped with a decree of dissolution of marriage before the District Court in appeal but it was reversed before the High Court on appeal of the husband and Supreme Court of Azad Jammu & Kashmir dismissed further appeal filed by the lady. She was refused dissolution of marriage even on the basis of ' Khula' and the Supreme Court in Civil Appeal No. 14 of 1979 in judgment, dated 10-6-1989 of Mst. Shamim Akhtar which she lodged against the judgment of the High Court, dated 9-10-1988 observed, that for making out a case for dissolution of marriage on the basis of ' Khula' there did not appear circumstances on the record showing that it was impossible for the couple to live as husband and wife according to the tenets of Islam.
5. The parties are admittedly subject of the State of Azad Jammu & Kashmir. By dint of section 1(2), Act No.XXXV of 1964 extends to the whole of Pakistan and a Family Court constituted under this Act as defined by section 2(1) (b) is a Court established by the Government under section 3 in each District or at such other place as it may deem necessary and appoint a Judge for each of such Court. Section 5 of the Act reads, that subject to the provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, a Family Court shall entertain, hear and adjudicate upon matters specified in the Schedule. Rule 6 of the Family Courts Rules, 1965 relates to the territorial jurisdiction of the Court the text whereof is reproduced below: -- "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 reside or last 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.
Rule 4(2) provides that a plaint filed under sub-rule (1) shall also contain the following particulars:- - (a)name of the Court in which the suit is brought and the fact showing that it has jurisdiction; (b)the name, description and place of residence of the plaintiff; (c)the name, description and place of residence of the defendant so far as can be ascertained; (d)where the plaintiff or the defendant is a minor or a person of unsound mind a statement to that effect; (e)the facts constituting the cause of action and the place where and date when it arose; and (f)the nature of the claim and valuation of the claim with particulars in brief and relief claimed.
Rule 5 states that where a plaint is presented to a Court not having jurisdiction, the plaint shall be returned to be presented in the Court to which it should have been presented with an endorsement of the Court and a brief statement of the reasons therefor. The Family Court is, therefore, a Court of law as contemplated in Article 175 of the Constitution, sub-Article (2) of which states that no Court shall have any jurisdiction save as is or max, be conferred on it by the Constitution or by or under any law.
6. The spouses in this case being subject of the State of Jammu & Kashmir they submitted to jurisdiction of the Courts established at Azad Jammu & Kashmir and litigated the case of dissolution of marriage of the lady-wife up to the Supreme Court. It appears that after final decision of the case before the Supreme Court of Azad Jammu & Kashmir in the year, 1989, Mst.
Shamim Akhtar chose to come and started residing in Mansehra so that she may be able to make a case for dissolution of marriage and then filed a suit before the Family Court at Mansehra in the year, 1992. In para. No.8 of the plaint the lady although averred that she was residing at Mansehra since so many years but did not state as when she came to Mansehra from Muzaffarabad. In the statement of Mst. Shamim Akhtar recorded before the Court on 5-1-1993 she, however, mentioned that she was residing in Mohallah Dab No.2, Mansehra with her mother since the last 9 years but occasionally goes to Muzaffarabad. The lady having litigated the dissolution case before the Supreme Court of Azad Jammu and Kashmir up to the year, 1989 patently made a wrong statement, that she was residing with her mother in Mohallah Dab No.2, Mansehra for period of about 9 years before instituting her suit at Family Court, Mansehra in the year, 1992 after having failed to try her luck before the highest Judicial Forum at Muzaffarabad about three years back.
7. The Supreme Court Shariat Appellate Bench in 'Federation of Pakistan v. Mst. Farishta (PLD 1981 SC 120) observed, that Muslim Personal Law in Article 203-B (c) of 1973 Constitution--- means such codified or legislated law which is being applied to Muslim citizens of Pakistan as or with the denomination Muslim to Muslim which governs their person as such and as distinct from General law of the Land which applies to every body."
Admittedly, this marriage has been dissolved by the Family Court on the basis of ' Khula' which is a recognized ground for decree for dissolution of marriage under the Muslim Law as section 2 (ix) of the Dissolution of Marriages Act, 1939 provides besides many other grounds enumerated therein.
But this lay being a legislated Act shall apply to Muslim citizens of Pakistan in cases of dissolution of marriages before Family Courts which invokes jurisdiction under section 5 of the Family Courts Act, 1964 and adjudicates upon matters specified in the Schedule.
8. The spouses of this case are subject of Azad Jammu & Kashmir State. They are admittedly not citizens of Pakistan either by birth or by descent or by migration within the scope of sections 4. 5 and 6 of the Pakistan Citizenship Act, 1951. They cannot also hold dual citizenship or nationality under section 14 of the Act ibid or being a subject of the State of Jammu and Kashmir and having 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 their status as such subject, be a citizen of Pakistan as section 14-B envisages. The Pakistan Citizenship Act, 1951 does not as such apply in case of the present parties and they cannot be deemed to be citizens of Pakistan at the commencement of this Act as section 3 provides. It, therefore, followed that a lady- wife who is a subject of the State of Jammu & Kashmir after having failed to get her marriage dissolved through a law suit in Azad Kashmir by taking afterwards temporarily a residence in the territory of Pakistan can get a decree A for dissolution of marriage from a Family Court established under section 3 of Act XXXV of 1964. The Family Court at Mansehra had, therefore, no jurisdiction to entertain a like suit between the spouses or make any decision upon the dissolution of marriage between the parties.
9. The judgment and decree impugned has been in the circumstances written without lawful authority and shall be as such of no legal effect. We would be in this background of the case constrained to allow this Constitutional petition and record the declaration prayed for. No order as to costs.