QADEERUDDIN AHMED, C. J.-This appeal Is directed against the order of the District Judge, Karachi, dated the 17th of September 1970, by which he dismissed Divorce Petition No. 3 of 1969, on the ground that be had no jurisdiction to entertain it.
2. The facts, which form the background, are that the appellant Mrs. Daphne Joseph was married to the respondent Malik Eric Roshan Khan. According to her counsel both of them were Christians at the time of their marriage, and that the marriage had taken place in October 1962, at Lahore. They lived in Lahore sad later on the respondent left for West Germany to be trained in electronic and did not contact her for five years. There he embraced Islam in 1968 and appears to have married another woman. On the 6th of March 1968, he divorced the appellant in accordance with Muslim Law. She was not satisfied with that divorce ; therefore, herself submitted an application under section 10 of the Divorce Act of 1869. According to her counsel the grounds, on which she made that application, were that in terms of section 17 of the Divorce Act of 1869 her husband had exchanged his profession of Christianity for the profession of Islam and "gone through a form of marriage" with another woman, as well as he was guilty of desertion inasmuch as he had left her in Pakistan and gone away to Germany and lived there. A notice of the application was sent to the respondent through the Embassy of Pakistan in Germany, and was served on him. He replied by a letter stating in it that he did not wish to resist the application.
3. In the above circumstances the District Judge of Karachi found that he had no jurisdiction to entertain the application, because according to clause (3) of section 3 of the Divorce Act of 1869, she could make that application in the Court of the District Judge of Lahore only. The provision is as follows ; '''District Court' means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together."
4. The District Judge had framed five issues, but dismissed the application on the ground that he had no jurisdiction to entertain it. This objection was embodied in Issue No. 4. She has filed this appeal against the order of the District Judge, as mentioned above, and has stated under the title of the appeal as follows t "Appeal under section 55 of the Divorce Act from the Judgment dated 17-9-1970, passed by the District Judge, Karachi in Divorce Petition No. 3 of 1969."
That section is as follows :- "All decrees and orders made by the Court in any suit or proceeding under this Act shall be enforced and may be appealed from, in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced and may be appealed from under the laws, rules and orders for the time being in force : Provided that there shall be no appeal from a decree of a District Judge for dissolution of marriage or of nullity of marriage ; nor from the order of the High Court confirming or refusing to confirm such decree.
Provided also that there shall be no appeal on the subject of costs only."
5. It will be noted from what is stated above that she had made her application before the District Judge under section 10 of the Divorce Act of 1869, and has also tiled this appeal under section 55 of the same Act I but bet stand is that she was entitled to make the application before the District Judge. Karachi in terms of the proviso to rule 6 of the West Pakistan Family Courts Rules, 1965. The Rule is as follows :- "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 patties reside or last resided together Provided that in suits for dissolution of marriage or dower, the Court within the local limit I of which the wife ordinarily resides shall also have jurisdiction."
6. The appeal vas originally fixed before the Chief Justice for admission when he was sitting in Single Bench. Counsel for the appellant referred to Adnan Afzal v. Captain Sher Afzal (PLD 1969 SC 187). In support of his contention that the West Pakistan Family Courts Act, 1964, was a procedural statute, and that as such it governed all proceedings in respect of marriage and divorce. He also argued that it was a neutral Act and contained nothing in it to indicate that it was applicable to Muslims alone. The Chief Justice felt that the respondent, who was in Germany, was not likely to come and contest the appeal ; therefore, it was proper that the Court should hear competent lawyers, on the questions that were raised, to enlighten itself. He, therefore. Requested Mr. Akhtar Mahmood, Mr. Zahoorul Hag and Mr. R4anzoor Ahmed Khan to appear in this case as amicus curiae. They kindly agreed to do so.
7. The case has now been heard by a Division Bench of which Chief Justice is also a member.
8. Mr. Khaliq counsel for the appellant has supported the appeal by contending that the West Pakistan Family Courts Act, 1964, is a procedural law, and that there is no reason to use it for the benefit of Muslims alone. He said that the object of the Act. According to its preamble, is "the establishment of family, Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs, and matters connected therewith." He referred to the definition of a Family Court, as given in clause (b) of section 2 of the Act, is order to show that Family Courts were not meant to decide disputes amongst Muslims only. He pointed out that a Family Court. According to the definition means a Court constituted under the Act He also referred to section 3 of the Act, which says : "Government shall establish one or more Family Courts in each District or at such other place as it may doom necessary and appoint a Judge for each of such Courts."
With the help of the above provisions he draw the conclusion that there was no justification for the view that the Act was intended to apply exclusively to Muslims.
9. Mr. Zahoorul Hag and Mr. Mansoor Ahmed Khan referred to sections 5 and 21 of the Family Courts Act and argued that there were indications in them to lead to the conclusion that the Act was intended to apply to the Muslims only. In order to examine this contention we shall refer to both sections separately. Section 5 is as follows :- "Section 5. Jurisdiction.--Subject to the provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule."
Mr. Mansoor Ahmad Khan argued that the words "Subject to the provisions of Muslim Family Laws Ordinance, 1961", indicate that the West Pakistan Family Courts Act, 1964, was basically the same Act as of 1961, which was to be read with the modifications that were introduced by the latter Act.
He said that there is a form of legislation known as Legislation by reference or incorporation, which is adopted for purposes of brevity, when Legislation is made in that form then the provisions of the law to which reference is made are to be read in the Legislation in which reference is made to them. In support of this contention he referred to Wood's Estate Ex parts Her Majesty's Commissioner, of Works and Buildings ((1886) 31 Ch. D 607). Muhammad Yusuf v. Assistant Collector of Custom (PLD 1970 Kar. 97) and M. S. Farukh Chief Officer, Lahore Municipal Corporation, Lahore v. The Province of West Pakistan and others (PLD 1970 Lah. 195). He also referred to page 783 of the Interpretation of Statutes by N. S. Bindra and pointed out that the words "subject to" meant "conditional upon". According to him the condition of the latter statute, namely, the West Pakistan Family Courts Act, 1961, was that it rested on the foundation of the Muslim Laws Ordinance, 1951, therefore, it was applicable to Muslims only. The contention of counsel was sound in principle but was not applicable to the present case, because the words "subject to the provisions of" can be effective in those circumstances only in which the provisions to which the reference is made in the section may be applicable. They are not effective for purpose of West Pakistan Family Courts Act, 1964, in respect of all cases that can fall within its scope, because, for instance the Act applies in terms of the Schedule, to which reference is made in the section, to Guardianship matters also, but those matters are not governed by the Muslims Family Laws Ordinance, 1961. And are on the contrary governed by the Guardians and Wards Act, 1890. In terms of section 25 of the West Pakistan Family Courts Act, 1964. It is, therefore, not possible to argue that owing to the words "subject to the provisions of", every case which falls within the scope of West Pakistan Family Court Act. 1964, must also fall within the four corners of Muslim Family Laws Ordinance, 1961. Since there are exceptions there should be some other reason, if any, for coming to the conclusion that the West Pakistan Family Courts Act, 1964, excludes from its ambit cases relating to the marriage and family affairs of Christians.
10. Mr. Zahoorul Haq emphasised the provisions of section 21 of the West Pakistan Family Courts Act, 1964. It is as follows :- "Section 21. Provisions of Muslim Family. Laws Ordinance to be apple--cable.-(1) Nothing in this Act shall be deemed to affect any of the provisions of the Muslim Family Laws Ordinance, 1961, or the ruler framed thereunder ; and the provisions of sections 7, 8, 9, and 10 of the said Ordinance shall be applicable to any decree for the --dissolution of marriage solemnized under the Muslim Law, maintenance or dower, by a Family Court.
(2) Where a Family Court passes a decree for the dissolution of a marriage solemnized under the Muslim Law, the Court ,hall send by registered post, within seven days of passing such decree, a certified copy of the same to the appropriate Chairman referred to in section 7 of the Muslim Family Laws Ordinance, 1961, and upon receipt of such copy, the Chairman shall proceed as if he had received an intimation of Talaq required to be given under the said Ordinance.
(3) Notwithstanding anything to the contrary contained in any other law, a decree for dissolution of marriage solemnized under the Muslim Law shall-(a) not be effective until the expiration of ninety days from the day on which a copy thereof has been sent under subsection (?) to the Chairman and (b) be of no effect if within the period specified in clause (a) a reconciliation has been effected between the parties in accordance with the provisions of the Muslim Family Laws Ordinance, 1961."
It is true that in all the three subsections of the above-quoted section theta are references to Muslim Family Laws Ordinance, 1961 ! But there is nothing in any of them to indicate that the Act of 1964 is applicable exclusively to such matters as fall under that Ordinance or is inapplicable to all those matters which fell outside the scope of that Act. We are, therefore, inclined to agree with Mr. Khaliq that there is nothing in the Wait Pakistan Family Courts Act, 1964, by which it can be said to be inapplicable to Christians.
11. The above conclusion, however, does not clinch the argument, because there are other important consideration, which led to the opposite conclusion. The most important of them is that the Divorce Act of 1869 is intended to apply to all persona who profess the Christian religion. Its preamble is as follows :- "Whereas it is expedient to amend the law relating to the divorce of persons professing the Christian religion, and to confer upon certain Court, jurisdiction in matters matrimonial ; it is hereby enacted a8 follows."
It is on the whole exhaustive Act, which contains provisions relating to the jurisdiction of Courts, Dissolution of Marriage. Nullity of Marriage, Judicial Separation, Protection Orders, Restitution of Conjugal Rights, Damages, Alimony. Settlements, Custody of Children, Procedure including appeals from orders and decrees. Remarriage, Mi9callaneous matters and a. Schedule of Forms.
12. The existence of such a complete Code applicable to. Persons professing the Christian religion leaves no doubt that Its; application to them cannot be curtailed without its direct or indirect: but unambiguous amendment because such curtailment would amount to'. Partially excluding its application to Christians inconsistently with its clear contents, and to applying to Christians provisions which are different from the corresponding provisions of that Code which clearly applies to them. This is self-evident proposition and need not be supported by referring tot authorities.
Additionally the Divorce Act of 1869 is a Central Act, whereas the West Pakistan Family Courts Act, 1964, is a Provincial Act and thus Inherently incapable of excluding the application of the Central Act, In this connection we may refer to Article 134 of the Constitution of 1962 , which is as follows :- "Where a Provincial Law is inconsistent with a Central law, the latter shall prevail, and the former shall, to the extent of the Incon--sistently, be invalid."
13. Another aspect, which was emphasised by Mr. Athtar Mahmood, In that Mr. Khaliq has adopted a self-contradictory as well as a strange position in this case. Mr. Khaliq's stand is that the appellant is entitled to mate use of the proviso to Rule 6 of the West Pakistan Family Courts Rules of 1965, but the rest of the procedure applicable to her case should be that which is contained in the Divorce Act of 1869. He has thus preferred this appeal tinder section 55 of the Divorce Act of 1869.
Moreover, as pointed out by Mr. Akhtar Mahmood. Mr. Khaliq has not fully adhered even to the jurisdictional provisions of the West Pakistan Family Courts Act, 1964, because an application for dissolution of marriage could not be heard by a District Judge in terms of sub-rule (2) of rule 7 of the West Pakistan Family Courts Rules of 1965. The rule is as follows : "Rule 7.-(1) Suite relating to custody of children and guardianship chalk be instituted, heard and tried by the Court of the District Judge, bat such Court may transfer any such to the Court of the Additional District Judge, the Senior Civil Judge, the Civil Judge First Class or the Civil Judge First Class (Additional), having jurisdiction as provided in rule 6, and thereupon the Court to which such snit is so transferred shall have jurisdiction to hear and try the same.
(2) The suits triable under this Act other than those relating to the custody of children and guardianship shall be instituted. Heard and tried in the Court of the Senior Civil Judge, the Civil Judge First Class or the Civil Judge First Class (Additional), having jurisdiction as provided in rule 6, and wherein any district there is no such Court, such suits shall be Instituted in and heard and tried by the Court of the District Judge.
(3) Notwithstanding anything contained in sub-rules (1) and (2), the Court of District Judge may-
(a) recall any suit made oven by it for trial under sub-rule (1) to an Additional District Judge, Senior Civil Judge, Civil Judge First Class or Civil Judge First Class (Additional) and either try such suit himself or refer it for trial to any other Court within the District I
(b) Send for the record and proceedings of any suit pending for trial is the Court of the Additional District Judge, Senior Civil Judge, Civil Judge First Class or the Civil Judge First Class (Additional) and hear and try the suit itself or refer it for trial to any otter Court within the District, and thereupon the District Judge or the Court to which such suit is so transferred, as the case may be, shall have jurisdiction to hear and try the suit."
Sub-rule (2) shows that under it this case was to be heard by the Senior Civil Judge, Civil Judge First Class or the Civil Judge First Clues (Additional) and not by the District Judge himself. Mr. Khaliq has, however, insisted contrary to this provision that the application of the appellant was to be beard and decided by the District Judge himself.
14. Our discussion of the above-mentioned aspects leads us to the conclusion that this appeal cannot be entertained. It is dismissed in limine. This conclusion was announced by us on the 19th of January 1971. The above are the reasons for doing so.