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Writ Petition No. 4955 of 1983, decided on 28th April, 1984.

--Art. 199--West Pakistan Family Courts Act (XXXV of 1964), S.5 & Schedule--Dissolution of Muslim Marriages Act (VIII of 1939) S.2- for Parties married under Christian Law subsequently embracing Islam Wife filing suit dissolution of marriage--Jurisdiction of Family Court- Family Court established under Act, XXXVof1964, held, had jurisdiction to decide suit for dissolution of marriage even marriage between spouses originally was performed in accordance with Christian Law and subsequently spouses had embraced Islam--Family Court had to decide such suit in accordance with personal law of parties at time of filing of such suit--Spouses at time of filing suit admittedly being Muslims, finding of Courts below that since parties were not married in accordance with Muslim Personal Law, their marriage could not be dissolved under provision of Act V111 01939 were declared by High Court to be without jurisdiction and of no legal effect--Case was consequently remanded to Family Court to be dealt with according to personal law i.e. Muslim Personal Law of parties. s

Mrs. C.M. Samuel v. Mr. C. Lamuel and another P L D 1967 S C 334; Naeem Ahmad v. Mst. Nuzhat Almas and 2 others 1981 C L C 195 and Fazal Khitab v. Mst. Naheed Akhtar and another P L D 1979 SC 864 ref.

Manzoor Hussain Butt for Petitioner.

Iqbal Muhammad Ahmad for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 28th April, 1984.

Mst. Saadia Bibi was married to respondent No.1, 17/18 years ago, in accordance with Christian Law.

2. In October 1982, the petitioner embraced Islam. She filed a suit for dissolution of marriage against respondent No.1 (hereinafter referred to as the respondent) in the Court of a learned Judge Family Court, Lahore, on the grounds that since she had embraced Islam, therefore, her marriage with the respondent got dissolved and that the treatment of the respondent had been cruel ,wards her.

3. The respondents resisted the suit and contended that he too had embraced Islam prior to the petitioner. This contention of the respondent was accepted by the learned Judge Family Court as also by the petitioner. The learned Judge Family Court, however, observed that since the parties were not married in accordance with the Muslim Personal Law, therefore, their marriage could not be dissolved under the provisions of the Dissolution of Muslim Marriages Act, 1939. He thus concluded that the suit filed by the petitioner was not competent in its present form and consequently the same was dismissed, vide judgment and decree dated 7-6-1983. The petitioner preferred an appeal and a learned Additional District Judge, Lahore, vide his judgment dated 30-10-1983, upheld the judgment and decree passed by the learned Judge Family Court and dismissed the appeal. Thus the present Constitutional Petition.

4. It is provided, in section 5 of the Family Courts Act, 1964 (Act XXXV of 1964), that 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. As per Schedule to the Family Courts Act, 1964, the item of 'dissolution of marriage' is recorded at serial No.1. Thus by virtue of section 5 of the Family Courts Act, 1964, a Family Court possesses jurisdiction to entertain hear and adjudicate upon a suit for dissolution of marriage.

5. In the Muslim Family Laws Ordinance, 1962 (VIII of 1961) there is no provision to the contrary except that the provisions of section 7 ibid relating to conciliation proceedings through an arbitration council, so far applicable, have been applied to an eventuality where any of the parties to the marriage wishes to dissolve the marriage otherwise than by Talaq. In Mrs. C.M. Samuel v. Mr. C. Lamuel and the State PLD 1967 S C 334, it was held that the validity of second marriage by a Muslim, who was originally Christian and embraced Islam subsequently had to be adjudged in accordance with the law which governed in the matter of marriage, namely, Islamic Law. It was further observed that marriage being a matter of status, he was governed by his personal law in this respect. It has been held in Naeem Ahmad v. Mst. Nuzhat Almas and 2 others 1981 C L C 195 that West Pakistan Family Courts Act, 1964, was not only applicable to Muslims but also to non-Muslims and the Family Court concerned had jurisdiction to decide the matter. In Fazal Khitab v. Mst. Naheed Akhtar and another P L D 1979 S C 864, it was held that obviously, the rules of Islamic Law would apply to the dissolution of marriage of the parties, who are Muslims, irrespective of the fact as to where the marriage was solemnised. It was observed that according to the well-settled principle in such matter, the law applicable is the personal law of the parties and under the Islamic Law, a wife is entitled to get her marriage dissolved if the husband was habitually cruel to her.

6. In the light of what has been said above, it is concluded that Family Court concerned established under the West Pakistan Family Courts Act, 1964, has jurisdiction to decide a suit for dissolution o1 marriage, no matter the marriage between the spouses was originally performed in accordance with Christian Law ,and subsequently they (spouses) embraced Islam. The learned Judge Family Court has to decide such suit in accordance with the personal law of the parties at the time of filing of the suit which in the circumstances of the present case is the Muslim Personal Law.

7. In this view of the matter the present Constitutional Petition is allowed and the impugned judgments and decrees by the learned Judge Family Court and the learned Additional District Judge, are held to be without lawful authority and of no legal effect. Consequently, the petitioner's suit for dissolution of marriage stands remanded to the learned Judge Family Court with the direction that he should decide the case on merits in accordance with the personal law of the parties, i.e.- the Muslim Personal Law. The parties are, however, left to bear their own costs.

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