With regard to the question raised before us by the petitioner as to whether Family Courts in Pakistan have jurisdiction to entertain the case when the plaintiff/wife is a dual citizen of Pakistan and the USA and is residing in the USA at the time of the institution of the suit, whereas, the husband is national and permanent resident of Pakistan. In this regard Rule 6 of the West Pakistan Family Courts Rules, 1965 is relevant .
In the above-proviso, the Legislature has intentionally used the word "ordinarily" which has a different meaning than that of permanent residence. According to Black’s Law Dictionary (VIth Edition) word "ordinary" means “usual, common, settled, customary, and reasonable”.
In the present case, although the Respondent is living in the USA at the time of the institution of the suit through her duly constituted attorney. However, the respondent usually comes to Pakistan; have acquired her education in Karachi and visits her family in Karachi from time to time.
By this proviso, the rigour of normal rule providing for territorial jurisdiction for trial of cases in Family Court have been relaxed in favour of female filing a suit for dissolution of marriage or recovery of dower. The words "Ordinarily resides" and "shall also have jurisdiction" used in proviso demonstrate the intention of parliament is to facilitate things for the wife and off-set her handicap. Therefore, the option of instituting such suits vests with the wife and the Court is bound to take her convenience subject to law. Hence, Family Courts in Pakistan have jurisdiction to entertain the matter and the trial court has rightly exercised so.
West Pakistan Family Courts Act, 1964 (“Act”) was promulgated for the expeditious settlement and disposal of disputes with regard to the marriage and other family affairs and also provides special procedure to achieve such object. Being special law, it creates the special courts for determination of the family disputes in order to advance justice and to avoid technicalities.
The Legislature while introducing amendment in the Family Court Act, 1964 has derived wisdom from Quran and Sunnah. Islam confers the right of Khula to woman by virtue of which a Muslim woman can get herself released from the bond of marriage if she feels, due to any reason, that she could not live with her husband within the limits prescribed by Allah Almighty. The right and mode of "Khula" has been described by Almighty Allah in verse No. 229 of Surah Baqra.
The proviso to section 10 empowers the Family Courts to pass a preliminary decree for the dissolution of Marriage forthwith upon the failure of reconciliation and further provides that wife shall be ordered to return the Haq Mehr received by her.
Section 10(3) imposes a legal obligation on the Family Courts to make a genuine attempt for reconciliation between the parties. Trial Court shall remain instrumental and make genuine efforts in resolving the dispute between the parties. In case if despite of genuine efforts, reconciliation fails, the Trial Court under proviso of section 10(4), without recording evidence is empowered to pass a decree of dissolution of marriage forthwith. At this juncture if the court observes that the wife without any reason is not willing to live with her husband, then under proviso (ibid) the Court is left with no option, but to dissolve the marriage.
Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation.
C.P.488-K/2023
Sohail Ahmed v. Mst. Samreena Rasheed Memon & others
Mr. Justice Syed Hasan Azhar Rizvi
20-12-2023
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