' The sole point for consideration in this matrimonial first appeal is whether the District Judge, Sialkot had the jurisdiction under the Divorce Act, 1869 to pass a decree of jactitation of marriage between the parties.
2. The appellant and the respondent who originally belonged to the Christian faith were married according to Christian rites on the 12th of August 1972 in the Catholic Church, College Road, Sialkot.
The appellant served a notice upon the respondent on the 14th of September 1974 inviting her attention about his conversion to Islam. On the 3rd of October 1974 be sent a divorce deed to her.
The respondent, therefore, filed a petition purporting to be under sections 2 and 7 of the Divorce Act and claiming a decree that the marriage subsisted and the said deed was null, void, illegal and ineffective. Since a petition under sections 2 and 7 of the Divorce Act could be tried only by the District Judge, it was submitted in that Court at Sialkot. The appellant contested this petition mainly on the ground of jurisdiction of the Court to try it and also on merits, since he asserted that the respondent was no longer his wife. The learned District Judge framed the following issues :-
(1) Whether this Court has jurisdiction to try this application ? 0. P. A.
(2) Whether this application is maintainable under the Divorce Act ?
O. P. A.
(3) Whether the petitioner is still the wife of the respondent ? 0. P. P.
(4) Relief.
3. Issues Nos. 1 and 2 were decided in favour of the maintainability of the petition in the Court of the District Judge under the Divorce Act. Under Issue No, 3 it was held that conversion of one of the spouses to Islam did not terminate the marriage tie for the simple reason that marriage between a Muslim male and a Christian female who is a Kitabia is permissible under Shariah. He, therefore, passed a decree in favour of the respondent, but left the parties to bear their own costs.
4. The learned counsel for the appellant addressed arguments only on Issues Nos. 1 and 2 only. The first question is whether the instant petition was covered by any of the provisions of the Divorce Act.
Thereafter the question of jurisdiction of the District Judge will arise in view of the latest amendment of the Divorce Act by Pakistan Act IV of 1976.
5. The Divorce Act contemplates some specific category of causes, in which relief can be granted under that Ace. These are cases of dissolution of marriage or of marriage being ab initio a nullity or of judicial separation. Section 2 of the Act provides the exteat of power to grant relief generally and to make deems of dissolution or of nullity. It provides that "nothing contained in the latter sections shall auhorise any Court to grant any relief under this Act except where the petitioner or respondent professes the Christian religion, or to make a decree of dissolution of marriage except where the parties to the marriage are domiciled in Pakistan at the time when the petition is presented or to make decrees of nullity of marriage except where the marriage, if solemnised before 15th day of August 1947, has been solemeised in India, and if solemnised on or after that date, has been solemnised in Pakistan and the petitioner is resident of Pakistan at the time of presenting the petition." This section deals with two matters. It contemplates that relief under the Divorce Act can be granted in a case where at least one of the parties professes the Christian religion. It further contemplates that in a case of dissolution of marriage, the parties to the marriage must he domiciled in Pakistan, in a case of declaration of marriage being a nullity, the petitioner is a resident of Pakistan while at the time of presenting the petition for the purpose of grant of any other relief it is necessary under the section that at least, the petitioner should be residing in Pakistan. This section further envisages the ouster of jurisdiction in matters specified under the Act, of any Court other than that mentioned in the Act itself. Section 4 which has now been omitted was another section dealing with the exclusive jurisdiction of the District Court subject to other provisions of the Act which deal with matters of Divorce a mensa et tora and all other causes, suits and matters matrimonial. Chapter III deals with the petitions for dissolution of marriage which can be submitted only for causes covered by either of the grounds in that section.
Such petition could be presented only to the District Judge or to the High Court. A decree for dissolutions by the District Judge was, however, subject to confirmation by the High Court under section 17 of the Divorce Act. Chapter IV deals with questio of nullity of marriage, section 10 provides that a husband or wife might present a petition to the District Court or to the High Court praying that his or her marriage may be declared null and void. Section 19 deals with the grounds on which such decree can be made. These grounds are that the respondent was impotent at the time of marriage and at the time of institution of the suit, that the parties are within the prohibited decrees of consanguity (whether natural or legal) or affinity ; that either party was a lunatic or idiot at the time of the marriage ; or that the former husband or wife were living at the time of the marriage and the marriage with such former husband or wife was then in force. This section also saves the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud. Such a decree if passed by the District Judge was subject to confirmation by the High Court under section 17 of the Act. Section 21 deals with making an arrangement for the children of such annulled marriage.
6. Chapter V deals with judicial separation. Such application was also to be submitted to the District Court or the High Court. There are certain consequential provisions in regard to a decree for separation. Chapter VI deals with the right of the deserted wife to apply to the District Court or the High Court for protection of her property. Chapter VII deals with the petition for restitution of conjugal rights at the instance of a husband or a wife. Such petitions were also submitted to the District Court or the High Court. Chapters VIII, IX and X deal with the right of the husband to claim damages for adultery, right of the wife to alimony and the power to order settlement of wife's property for' benefit of husband and children, inquiry into the existence of ante nuptial or post- nuptial settlements and power to make orders in regard to custody of children. The next Chapter XII is a procedural Chapter. Chapter XIII is about remarriage and the last Chapter is about some miscellaneous petitions.
7. The important change brought by Divorce (Amendment) Act IV of 1976 is that the original Jurisdiction of the District Court and High Court conferred by this Act, has been taken away and all petitions are now competent before a Civil Judge. Provision was also made by the amending Act to the following effect for the transfer of pending cases to the Civil Judge: "All suits, appeals and proceedings in causes and matters matrimonial pending in any High Court or District Court in which recording of evidence has commenced immediately before the commencement of this Act shall be dealt with and decided by such Court, so far as may be, as if this Act had not come into force."
8. The Act IV of 1976 came into force on the 8th of January 1976. The evidence of the parties in this case had not commenced by that date. It was recorded on the 17th of January 1976. Clearly, therefore, even if the case was covered by the provisions of the Divorce Act, the jurisdiction of the District Court to deal with it, was taken away by the above section, since the District Judge could deal with only that category of cases in which the recording of evidence had commenced immediately before the commencement of the amending Act. The learned District Judge had, therefore, no jurisdiction to decide the matter. This appeal is, therefore, liable to be allowed on this ground alone.
9. The result of this finding would be that if it is found that the matter is covered by the Divorce Act, the case shall have to be transferred to the civil Court for deciding it in accordance with law.
However, if it is held teat the petition was not covered by the Divorce Act, it would have to be returned to the petitioner (respondent) for presentation to a Court of competent jurisdiction in the form of a plaint. The second issue is also, therefore, important.
10. Now it is clear from the scheme of the Act that only petitions for dissolution of marriage, restitution of conjugal rights, ab initio nullity of marriage and judicial separation are dealt with by the Act. The present suit is only for a declaration that the marriage is not a nullity. Such a declaration is not envisaged by any of the provisions of the Act. The petition for declaration of marriage as nullity should be a petition for its declaration as an ab isirio nullity. Negative declaration or the declaration that what was not a nullity, has become so later or vice versa, is not at all contemplate. The petition as drafted is not covered by any of the provisions of the Divorce Act. 1 may observe that the petitioner could have amended the petition so as to convert it into a petition for Restitution of Conjugal Rights under section 32 of the Act, but the petition as framed cannot be treated as one under that section. The petition is, therefore. Liable to be returned to the respondent for presentation to a competent Court.
11. I may clarify at this stage that if this petition is filed as a suit for jactitation of marriage, it may have to be filed before a Family Court under the Family Courts Mt. The learned counsel for the respondent argued that the Family Courts Act was applicable only to Muslims and in this connection he referred to the opening words of section 5 of that Act, "Subject to the provisions of Muslim Family Laws Ordinance". This question was considered by a Division Bench of the High Court of Sind & Baluchistan in Mrs. Daphne Joseph v. Malik Eric Roshan Khan (1). It was held that it is not possible to argue that owing to the words 'subject to the provisions of Muslim Family Laws Ordinance' every case which falls within the scope of the Family Courts Act must also fall within the four corners of Muslim Family Laws Ordinance. It was inferred from the scheme of the Act of 1964 that there was nothing in the Act by which it could be said to be inapplicable to Christians. The same view was taken by me in W. P. 481/1976. It is not necessary for me, however, to give a finding on this question.
12. I allow this appeal with costs, set aside the order of the learned District Judge and direct that the petition be returned to the petitioners respondent for filing it before a Court of competent jurisdiction.