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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