Tuesday, 23 September 2014

Legal Sanctity of Nikah between Christian spouses

PLJ 2002 Karachi 117
Present: WAHID Bux BROHI, J.
HASHAM SADARUDDIN GANJI-Petitioner
versus
IIND ADDL. DISTRICT JUDGE SOUTH KARACHI and others-Respondents
C.P. No. S-89/2002, decided on 11.3.2002.
Family Court Rules, 1965-
—R. 5--Family Court~Jurisdiction~Suit for dissolution Of marriage filed in Family Court at Karachi-Defendant's plea that both parties being Canadian citizens, Court at Karachi lack jurisdiction to entertain and try such suit-Despite such plea defendant could not show that parties had lost their Pakistani citizen ship-Nikahnama was admittedly registered at Karachi—Plaintiff admittedly was not residing at the given address at Karachi—Marriage between parties having been solemnized in Karachi under Islamic Law, second Nikah at Canada was exercise in futility- Second Nikah over and above existing valid Nikah is not recognized in Islam nor is judicial separation-If all the facts asserted by plaintiff were correct, she was justified in instituting suit in Karachi.                                                         [P. 118] A
PLD 1967 SC 97; PLJ 1979 SC 120 ref.
M/s. Noor allah A. Manji and Muhammad Akram, Advocates for Petitioner.
Date of hearing: 11.3.2002.
ORDER
1.         Granted.
2.         Granted subject to just exceptions.
3 & 4. The petitioner and Respondent No. 2 were married in Karachi. A Nikahnama has been placed on record which bears the signatures of Nikah Registrar, Garden West, Karachi and this Nikahnama is not disputed. Mr. Noor Allah Manji, however, clarified that the parties had gone to Canada and had again entered into anotherNikah just to satisfy the requirements of laws in Canada. It is also stated that a judicial separation was obtained at Canada through the concerned Supreme Court. However,the dispute between the parties presently arises out of the Nikahnama registered at Garden West, Karachi.

The Respondent No. 2 had filed a suit seeking dissolution of marriage showing her address at F-172/2, Block-5, CliftonKarachi. The plaint was returned to her under Rule 5 of Family Courts Rules by the learned Family Judge with a direction to file the same before the competent .— Court. A Constitutional petition was filed in this Court which was disposed of with the direction that the petitioner may approach the appellate Court for appropriate relief. Accordingly, an appeal was filed by the Respondent No. 2 which was heard by learned 2nd Additional District Judge, Karachi South. The appellate Court set aside the order of the Family Court with the following observations:-
"In the present case learned Judge has returned the plaint without recording the evidence and I am after the above discussion reached at the conclusion that this case required recording the evidence of both the parties, therefore, I declare the order of the learned Family Judge as illegal and set-aside the same and remand the case to the
learned Family Judge to dispose of the.................. the same
according to law after recording the evidence of both the parties. Hence case remanded."
Learned counsel for petitioner emphasized that the above order could not be sustained as both the parties are Canadian nationals. Despite this plea, it could not be shown that they have lost their Pakistani Citizenship. Admittedly, the Nikahnama was registered at Garden West, Karachi and it is also not disputed that the Respondent No. 2 is not residing at the given address at Karachi. There is also no issue that the marriage solemnized through aforesaid Nikahnama has legally been dissolved. The marriage was solemnized in Karachi under Islamic Law, the second Nikah at Canada was an exercise in futility. Second Nikah over and above an existing ^ valid Nikah is not recognized in Islam nor is judicial separation. Therefore, if all the facts asserted by the Plaintiff/Respondent No. 2 were correct, she was justified in instituting the suit in Karachi. The authorities Khurshid Bibi's case (PLD 1967 SC 97) and Fazal Khitahv. NaheedAkber (PLJ 1979 SC 120) have been considered by the appellate Court and the order of Family Court has been set-aside on legal grounds. There is no legal -infirmity or jurisdictional error in the order. The parties have yet to lead evidence on controversial issues and prove their case before the Family Judge, interference with such an order in th'e Constitutional jurisdiction would be uncalled for. The petition is wholly without merits and is dismissed in limine.
(A.A,)                                                                              Petition dismissed.


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