1. Learned counsel for the respondent does not press this application which is accordingly disposed of as not pressed.
1. 2 and 3. This revision application arises out of the order passed by the learned IInd Additional District Judge, Nawabshah on 13-3-1997 in Family Suit No,4 of 1996 rejecting the application under Order 7, Rule 10, C.P.C. Filed by the petitioner/defendant.
2. ' Briefly the facts are that the petitioner is Hindu by religion whereas the respondent/lady a Christian. They got married about 17 years ago but both of them did not waive their religion. Out of the wedlock three children were born. The eldest being 16 years of age, whereas the youngest is aged about ten years. The lady by profession is a mid-wife and works as Nurse in a Missionary Hospital, Nawabshah whereas the petitioner also works there as Dispenser. It is alleged that the petitioner/defendant had indulged in bad habits of gambling and taking intoxicants and despite the request of the respondent he did not leave these habits and started maltreating her. Finally, he asked the lady to quit her religion and adopt Hindu religion which she refused. It is said that 15 days before filing of the suit the petitioner came having drunk and demanded Rs,10,000 from the lady and on her refusal he maltreated her and drove her out of the house. She finding no resort filed the suit.
3. ' The petitioner/defendant filed his written statement and denied the allegations and stated that from the date of their marriage the brothers of the respondent were unhappy with the marriage and due to their pressure she has filed the suit on false, frivolous and vexatious grounds.
4. ' During the proceedings the defendant/petitioner moved an application under Order 7, rule 10, C.P.C. Read with section 151, C.P.C. On 13-3-1997, when perhaps the matter was fixed for evidence of the parties. The learned trial Court straightaway rejected this application without going into the merits. Hence this revision petition.
5. ' I have heard the learned counsel for the parties and perused the record and also authorities referred to at the bar.
6. It L is been contended on behalf of the petitioner that the order of the trial Court is illegal and irregular for the simple reason that it was incumbent upon the Court to have decided the legal issue of jurisdiction when point was raised. It is a settled law that before proceeding with the matter it is for the Court to decide the issue of jurisdiction first and then proceed with the case further. The simple reason is that if the Court has no jurisdiction and proceeds with the matter the entire proceedings will be illegal and without jurisdiction. It was, therefore, for the trial Court to have decided the issue of jurisdiction first before proceeding to record the evidence. It appears that the examination in chief of the witnesses was recorded and at the time when they were to be cross- examined by the advocate, who was late in time, moved the present application under Order 7, Rule 10, C.P.C. In this situation there was no harm if the point of jurisdiction was decided first and the witnesses could have been called for the purpose of cross-examination subsequently, if the Court held that it had jurisdiction. Reference has been made, on behalf of the petitioner, to section 2(d) of the Family Courts Act, 1964 which is a defining section reads as under:-- "(d) 'party' shall include any person as such is considered necessary for a proper decision of the dispute and whom the Family Court adds as a party to such dispute. "
7. ' It is contended that this section does not distinguish between any religion but for the purpose of this section any party would be a party in the matter in the capacity of the plaintiff or defendant.
8. Reference has also been made to the schedule to section 5, according to it all the matters pertaining to:-
(1) Dissolution of marriage.
(2) Dower.
(3) Maintenance.
(4) Restitution of conjugal rights.
(5) Custody of children.
(6) Guardianship.
(7) Jactitation of marriage come within the scope of Family Courts Act, 1964.
9. ' It is vehemently argued that the Family Courts Act being a special enactment overrides the ordinary law which may be Christian Personal law or Hindu Personal Law etc. This lends support from the General Clauses Act which says that where on the same matter schedule general law and the special law exist the special law has to be preferred. Consequently, the Family Courts Act being a special enactment as already submitted it has the overriding effect. Thus the suit in fact should have been filed in the Family Court and not before the District Judge as it is objected by the learned counsel for the respondent that because the respondent being Christian the case was rightly filed before the District Court. The learned counsel for the respondent has placed reliance on the case of Mrs. Daphne Joseph .v. Malik Eric Roshan Khan (PLD 1978 Karachi 336). In this authority it has been held that since the parties were Christians hence they are governed by the Divorce Act, 1869 which is the Central Statute and not by the Provincial Act (Family Courts Act) which is the authority seems to have been overruled by chain of authorities wherein it has been held that the Family Courts Act has only made a procedural change but has not disturbed the substantive right of the parties. Reliance has been placed on the case of Gasper v. Jennifer and another (1976 PCr.LJ 1976) where both the parties were admittedly Christians and non-Muslims and, where the dispute had arisen between the parties on the ground of maintenance and the proceedings were filed under section 488, Cr.P.C. It was held that this issue could be settled by the Family Court and not by way of proceedings under section 488, Cr.P.C. Reliance has also been placed by the learned counsel for the petitioner on the case of Neema Ahmad v. Nuzhat Almas (1981 CLC 195). In this reported case the parties are Qadianis and in this authority it has been held that the Family Courts Act applies to non-Muslims and the Family Court concerned would have jurisdiction to decide the family dispute between the parties who are Qadianis and the contention which seems to have been made by the other side regarding the non-applicability of said Act was held to be without any substance. There is yet another authority which has been relied on by the learned counsel for the petitioner is a Full Bench authority in the case of Sultan Ahmed v. Mehr Khan (PLD 1982 FSC 48).
10. It has been held in this authority that West Pakistan Family Courts Act is generally applicable to non-Muslims also. In Moolchand v. Smt. Indra and others (PLD 1985 Kar. 362) it has been held that cases relating to the marriage and family affairs of non-Muslims including Hindus, not excluded from ambit of section 5 of West Pakistan Family Courts Act, 1964 and that the said Act does not come into conflict with Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946. It seems that case of every non-Muslim pertaining to the family matters irrelevant of the religion shall come under the provisions of Family Courts Act, 1964.
11. ' In view of the above facts the impugned order passed by the learned Additional District Judge, Nawabshah, seems to be unfounded, illegal and irregular. Hence I have no hesitation in accepting the petition and so I do accordingly. The impugned order of the trial Court is set aside. The parties to bear their own costs.