Justification of Overseas Divorce in Pakistan:
Parties were married at Karachi, where their marriage certificate was registered. Parties, after going to Canada entered into another marriage to satisfy the requirements of law of Canada. Overseas divorce in Pakistan was obtained at Canada through concerned Supreme Court. Family Court returned the plaint to wife in case of overseas divorce in Pakistan. Appellate Court set aside said order and remanded the case for its decision after recording evidence of the parties. Contention of husband was that order of Appellate Court was not legal as both the parties were Canadian nationals. Husband, despite raising such plea had not shown that parties had lost their Pakistani citizenship. Registration of marriage certificate as well as residence of wife at Karachi was not disputed by husband. Second marriage at Canada was an exercise in futility as second marriage over and above an existing marriage cannot be entertained. Wife was justified in instituting suit of overseas divorce in Pakistan. Impugned order was not suffering from any legal infirmity or jurisdictional error.
Appealed to High Court for Divorce Procedure:
High Court dismissed Constitutional petition. Petitioner was a British national who had divorced raised. Such plea was not raised before Revision Court. Plea of lack of jurisdiction in Court that Petitioner was a British national who had divorced the respondent was raised. Proceedings for recovery of past maintenance and that of the period of lddat were initiated under S. 9 of Muslim Family Laws Ordinance, 1961. Both the Courts below granted past maintenance along with period for 90 days. Grievance of petitioner was that the Courts below had wrongly assumed jurisdiction in the matter as the petitioner was not a Muslim citizen of Pakistan and period of lddat was 39 days which was wrongly fixed as 90 days. Petitioner did not raise point of jurisdiction in the contents of the revision petition filed below; therefore, he was not permitted to argue the same before High Court in exercise of Constitutional jurisdiction.
Under the Laws of High Court and Supreme Court:
Judgments of both the Tribunals below to the extent of period of lddat were not in accordance with the dictum laid down by Supreme Court in case titled Allah Dad v. Mukhtar reported as 1992 SCMR 1273. High Court modified judgments passed by both the Tribunals below to the extent that instead of granting maintenance of lddat period consisting of 90 days, the same was reduced to 39 days. Petition was disposed of accordingly. . Petitioner had challenged the notice of divorce filed by wife in the concerned Union Council on the ground that such notice was required to be filed at a place of residence of the spouse against whom such right was to be exercised. Wife opposed the assertions submitted by petitioner and contended that the provisions of Rule 3(b) of the West Pakistan Rules under the Muslim Family Laws Ordinance 1961 applied mutatis mutandis to wife and she could file such notice at the place where she resided. Language of the rule asserted by petitioner was to be given notice of divorce. Its literal interpretation and the right of divorce exercised either by husband or by wife had to be notified to the Union Council where the wife/woman resided at the relevant time.
Result With Muslim Family Laws Ordinance and West Pakistan Rules:
Section 8 read with S. 7 of the Muslim Family Laws Ordinance, 1961 and Rule 3(b) of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961 clearly showed that the Union Council within whose territorial limits the woman resided had the requisite jurisdiction in the matter of overseas divorce in Pakistan. High Court declined to interfere in Constitutional jurisdiction. Petitioner had sought quashing of the divorce confirmation certificate and declaration to the effect that respondent was still his legally wedded wife. Petitioner, who pronounced divorce upon respondent through S.M.S., had claimed that after pronouncement of divorce, within no times same was withdrawn by way of recourse. Counsel for the petitioner had contended that since no proceedings under S. 7 of Muslim Family Laws Ordinance, 1961 were initiated by the petitioner, impugned divorce confirmation certificate could not be issued and that since petitioner claimed to have made recourse and defendant had denied, impugned certificate could not have been issued, without recording evidence. Court decided the divorce certificate to be valid.
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