Judgement Sheet in The Peshawar High Court, D.I.Khan Bench (Judicial Department)

JUDGEMENT SHEET
IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)
W.P No. 1075-D/2019 with

C.M No.1194-D/2019
Asif Raza Masih

Vs
Mst. Sofia alias Pinky etc
For petitioner Muhammad Taqqi Jan Sappal, Advocate
For respondent Muhammad Abdullah Baloch, Advocate
Date of hearing: 14.9.2020
JUDGMENT
Sahibzada Asadullah, J.- Through the instant petition under
Article 199 of the Constitution of Islamic Republic of Pakistan,
1973, the petitioner Asif Raza Masih has called in question the
order dated 29.7.2019, rendered by learned Judge Family Court-I,
D.I.Khan, whereby marriage between the spouses was dissolved by
invoking the provision of West Pakistan Family Courts Act, 1964.
2. The following statement of facts will assist in the
disposal of this writ petition that the respondent No.1 filed a suit
against petitioner for dissolution of marriage under Christian
Personal Law, detail whereof fully described in the headnote of the
plaint. The petitioner appeared before learned Family Court and
contested the suit by filing his written statement wherein he prayed
for restitution of conjugal rights. After failure of Pre-trial
reconciliation, learned Family Court-I, D.I.Khan passed the
following order:-
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Keeping in view the present fact and

circumstances, coupled with statement of the
parties, as reconciliation is not possible between
the parties, therefore, marriage between the
parties dissolved.
Feeling disgruntled from the said order, the petitioner
filed the present constitutional petition.
3. Heard. Record perused.
4. At commencing stage of the arguments, learned
counsel for the petitioner, took a preliminary objection regarding
jurisdiction before the Family Court and stated that the learned
Family Court under Section 5 of the West Pakistan Family Courts
Act, 1964 (“Act”) has no jurisdiction to entertain the matters of
non-Muslims. Whereas on the question of jurisdiction under
Section 5 of the “Act”, learned counsel for the respondent
submitted that it extends to non-Muslims also and that the said
provision is religion neutral.
5. After hearing the submissions of the learned counsel
for the parties and after going through the case law cited, this Court
found that two important questions of public important arise in the
case.
The meaning and scope of “subject to the

provisions of Muslim Family Law
Ordinance, 1961” in Section 5 of the Family
Courts Act, 1964. Does it, therefore, restrict
jurisdiction to matters cover under the
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Muslim Family Law Ordinance, 1961 or does

it allow matters belonging to other
religions/personal laws to be entertained by
the Family Court which is a Court of special
jurisdiction.
ii) If the personal law of the parties is not
codified as in the case of Ahmadies, can the
matter be heard by the Family Court?
From the plain reading of above, it is crystal clear that
on the question of jurisdiction of the Family Court being “subject
to” “MFLO” the jurisdiction of the Court only in cases of Muslims
is subject to “MFLO” but not for non-Muslims and therefore, the
jurisdiction of the Family Court is not affected by the subjection
clause mentioned above.
6. The question is to determine the meaning of the term
“subject to” employed in Section 5(1) of the Act. For ready
reference, Section 5(1) is reproduced hereunder:-.
“5. JURISDICTION.--- (1) Subject to
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 Part of the
Schedule.”
-4-
7. A close examination of the provisions of the Family
Courts Act, 1964 and those of the Muslim Family Laws Ordinance,
1961 shows that they do not operate exactly in the same field and
that the scope of the Family Courts Act, 1964 is wider than that of
the Muslim Family Laws Ordinance, 1961. In our view, the affect
of the words in section 5 that the Family Courts shall have the
jurisdiction to entertain suits relating to dissolution of marriage,
jactitation of marriage etc. but subject to the provisions of the
Muslim Family Laws Ordinance, 1961 imply only that where there
is an inconsistency between Muslim Family Laws Ordinance, 1961
and the Family Courts Act, 1964, the provisions of the Muslim
Family Laws Ordinance will prevail and shall be given effect to in
their pristine form and no more. They do not have any other effect
and the provisions of other laws are not affected thereby.
Accordingly, suits of this nature filed by the parties other than
Muslim citizens of Pakistan if otherwise competent under any
other law can be entertained but will be heard and tried not in
accordance with the provisions of the Muslim Family Laws
Ordinance but by the proper law applicable to them.”
8. It is settled position that “MFLO” applies only to
Muslims as has been clearly provided in Section 1 Subsection (2)
of the said Ordinance which provides that the said Ordinance
extends to the whole of Pakistan and applies to Muslim citizens of
Pakistan. Reliance is placed on Ahmed vs. Mehr Khan (PLD 1982
FSC 48).
-5-
9. Reverting to the instant case, it is discernable from
order dated 29.7.2019 passed by learned Judge Family Court-I,
D.I.Khan that she was influenced by the provisions of Muslims
Family Laws Ordinance, 1961 while deciding the case of the
respondent/plaintiff. There is no provision in the nature of the
‘Khula’ in the divorce Act, 1869 and as such the mere statement of
the petitioner that she was not willing to live as a wife with
petitioner, is not sufficient for the purpose of dissolution of
Christian marriage. In this regard reference is made to section 10 of
the Divorce Act, 1869, which relates to the grounds when wife
may ask for the dissolution of marriage and further reference is
also made to section 22 of the same Act, which lays down the
grounds when judicial separation is obtainable by wife.
10. The bond of marriage between Christian husband and
wife is of a permanent nature and as such the wife has to prove her
case on the concrete facts after leading reliable and cogent
evidence to the facts on which the claim of dissolution of marriage
is based. Only then the Court can grant a decree for a judicial,
separation within the meaning of section 22 of the Divorce Act,
1869 or to dissolve the marriage under section 10 of the same Act.
Therefore, mere assertion of the wife that she is not ready to live
with the husband is not sufficient for dissolving the marriage
between the petitioner and respondent No. 1 under Christian laws.
11. In view of what has been discussed above, the instant
petition is allowed, consequently, the order impugned herein
passed by learned Judge Family Court-I, D.I.Khan is set aside and

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the case shall stand remanded to the learned Judge Family Court-I,
D.I.Khan who shall proceed with the case from the stage on which
the respondent/wife made her statement and after framing of issues
and recording evidence regarding those issues, shall decide the
matter, after issuing notice to the parties. The case be decided
preferably within a period of four months from the date of receipt
of this order.
Announced.
Dt:14.9.2020
Hasnain/*
JUDGE
JUDGE
(D.B)
Hon’ble Mr. Justice Abdul Shakoor
Hon’ble Mr. Justice Sahibzada Asadullah

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JUDGEMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

W.P No. 1075-D/2019 with

Asif Raza Masih

For petitioner Muhammad Taqqi Jan Sappal, Advocate

For respondent Muhammad Abdullah Baloch, Advocate

Date of hearing: 14.9.2020

Sahibzada Asadullah, J.- Through the instant petition under

Article 199 of the Constitution of Islamic Republic of Pakistan,

order dated 29.7.2019, rendered by learned Judge Family Court-I,

D.I.Khan, whereby marriage between the spouses was dissolved by

invoking the provision of West Pakistan Family Courts Act, 1964.

2. The following statement of facts will assist in the

against petitioner for dissolution of marriage under Christian

Personal Law, detail whereof fully described in the headnote of the

plaint. The petitioner appeared before learned Family Court and

contested the suit by filing his written statement wherein he prayed

for restitution of conjugal rights. After failure of Pre-trial

reconciliation, learned Family Court-I, D.I.Khan passed the

Keeping in view the present fact and

Feeling disgruntled from the said order, the petitioner

filed the present constitutional petition.

3. Heard. Record perused.

4. At commencing stage of the arguments, learned

counsel for the petitioner, took a preliminary objection regarding

Family Court under Section 5 of the West Pakistan Family Courts

Act, 1964 (“Act”) has no jurisdiction to entertain the matters of

non-Muslims. Whereas on the question of jurisdiction under

Section 5 of the “Act”, learned counsel for the respondent

submitted that it extends to non-Muslims also and that the said

provision is religion neutral.

5. After hearing the submissions of the learned counsel

found that two important questions of public important arise in the

The meaning and scope of “subject to the

Muslim Family Law Ordinance, 1961 or does

From the plain reading of above, it is crystal clear that

on the question of jurisdiction of the Family Court being “subject

to” “MFLO” the jurisdiction of the Court only in cases of Muslims

is subject to “MFLO” but not for non-Muslims and therefore, the

jurisdiction of the Family Court is not affected by the subjection

clause mentioned above.

6. The question is to determine the meaning of the term

“subject to” employed in Section 5(1) of the Act. For ready

reference, Section 5(1) is reproduced hereunder:-.

“5. JURISDICTION.--- (1) Subject to

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 Part of the

7. A close examination of the provisions of the Family

jurisdiction to entertain suits relating to dissolution of marriage,

jactitation of marriage etc. but subject to the provisions of the

is an inconsistency between Muslim Family Laws Ordinance, 1961

Family Laws Ordinance will prevail and shall be given effect to in

and the provisions of other laws are not affected thereby.

Accordingly, suits of this nature filed by the parties other than

Muslim citizens of Pakistan if otherwise competent under any

accordance with the provisions of the Muslim Family Laws

Ordinance but by the proper law applicable to them.”

8. It is settled position that “MFLO” applies only to

Muslims as has been clearly provided in Section 1 Subsection (2)