P L D 2021 Balochistan 20
Before Rozi Khan Barrech, J
SADIA GILL ---Petitioner
Versus
VISHAL MASIH and another ---Respondents
Civil Revision No. 474 of 2019, decided on 19th August, 2020.
Divorce Act (IV of 1869) ---
----S. 3(2), (3) ---Civil Procedure Code (V of 1908), S.20 & O.VII, R.10 ---Suit for separation
and dissolution of marriage ---Territorial jurisdiction ---Parties were Christian by faith and
suing spouse sought separation and divorce on the plea of desertion ---Defending spouse
sought return of plaint on the plea that they were living at place "Q" and cause of action had
also accrued at place "Q" therefore, Courts at place "M" had no power to adjudicate---Validity ---Suing spouse had choice of selecting his / her forum either as (i) the district where
parties had last resided together or (ii) the district within the local limits of which both the husband and wife resided, though living separately--- Matter was governed by first category
that parties were married at place "Q" and lastly resided together at place "M" ---For
determination of jurisdiction, provision of S.20, C.P.C. was not to be taken into consideration
as provision of S.3(3) of Divorce Act, 1869, catered for the position with regard to
determination of jurisdiction of Court ---In presence of provision in special law the provision
of general law was not to be taken into consideration ---High Court declined to interfere in
the order passed by Trial Court ---Revision was dismissed in circumstances.
Muhammad Siddiq v. Zawar Hussain PLD 1974 SC 572; Syed Mushahid Shah and
others v. Federal Investment Agency and others 2017 CLD 1198 and State Life Insurance
Corporation of Pakistan through Chairman and others v. Mst. Sardar Begum and others 2017 CLD 1080 rel.
Najeeb Tareen for Petitioner.
Aminullah Gharsheen for Respondent No.1.
Ahmid Ali Baloch, A.A.G. for Respondent No.2.
Date of hearing: 12th August, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---This civil revision petition in terms of section 115,
Code of Civil Procedure Code, 1908 (hereinafter "the C.P.C.") is arising out of the order
dated 17.9.2019 (hereinafter "the impugned Order") passed by learned Civil Judge/Judicial
Magistrate Muslim Bagh (hereinafter "the trial Court") whereby the application under secti on
Order VII, Rule 10, C.P.C. filed by respondent No.1/defendant was dismissed.
2. Facts necessary for adjudication of the instant petition are that the respondent No.1
filed a suit under Divorce Act, 1869 (hereinafter "the Act") for judicial separation an d
divorce on the ground of desertion against the petitioner/defendant (hereinafter "the petitioner") before the trial court with following prayers:
"It is accordingly, respectively prayed that the suit of plaintiff may be decreed against defendant in following terms:
I. Judicial Separation between the parties from the date of 26.09.2017 may kindly be ordered followed by dissolve the marriage tie between the parties on the ground of desertion.
II. Any other relief which this Hon'ble Court deems fit and proper may also be
granted."
3. The petitioner resisted the suit being defendant. While submitting her written
statement, she controverted the assertions contained in the plaint and also filed an application under Order VII, Rule 10, C.P.C. on the ground that petitioner is residing in Quetta as well as the cause of action has also been accrued herein, therefore trial court at Muslim Bagh has no power to adjudicate upon the matter and the same is liable to be returned.
4. The application was contested by respondent No.l. After hearing arguments of learned
counsel for the parties, the trial court dismissed the application of the petitioner filed under
Order VII, Rule 10, C.P.C. vide order dated 17.9.2019. Hence, this petition.
5. I have heard learned counsel for the petitioner as well as respondent No.1 at
considerable length and also perused the record.
6. Admittedly in para No. 7 of the plaint the plaintiff/respondent mentioned that "both
the parties are residing at Quetta, therefore this Hon'b le court has jurisdiction to adjudicate
upon the matter." But on the other hand in the plaint, which contain the name of Court of Civil Judge Muslim Bagh at the title page, the word Quetta appearing in Para No. 7 of the plaint is just typographical mistake on the part of the parties.
7. It is also an admitted fact that marriage certificate of the parties showed that the
parties entered into marriage on 16.5.2017 at Quetta. The petitioner and respondent No.1 were residing at Muslim Bagh. The residence of res pondent No.1 can be further ascertained
by his CNIC and domicile too, which show him as resident of Muslim Bagh. The respondent No.1 averted in his plaint that the petitioner herself deserted from the house of respondent No.1 on 26.9.2017. On the other han d the petitioner stated in her written statement that she
did not leave the house of respondent No.1 rather the respondent No.1 expelled her from his house. From the above facts of the case, it is established that parties were lastly residing in the house of the respondent No.1 at Muslim Bagh.
8. The other point, which needs determination is whether the Civil Judge, Muslim Bagh,
had jurisdiction to entertain the suit or otherwise. The term "District Court" has been defined
in section 3(3) of the Divorce Act , thus: -
"(3) 'District Court' means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together."
It will be plain from reading the language of section 3(2) that petitioning/suing spouse
has choice of selecting his/her forum either as. 1) The District where the parties have last
resided together. 2) The District within the local limits of w hich both the husband and wife
resided, though living separately "reside" at the date of the presentation of the petition, the
present case is clearly governed the first contingency, that in on the very showing of the petitioner herself they were married at Quetta and lastly resided together at Muslim Bagh.
9. The contention of learned counsel for the petitioner that petitioner is residing at
Quetta and the Court of Civil Judge Muslim Bagh has no jurisdiction and it is fair jurisdiction of Civil Judge Distr ict Quetta in view of section 20 of C.P.C. as to the arguments
that for the purpose to determination to be placed of suing the provision of section 20, C.P.C. are to be taken into consideration, which provide that the suit ought to be filed in a court wher e the defendant is residing.
10. For determination of the jurisdiction section 20 is not to be taken into consideration
particularly in the prevailing position of the legal provision contained in special law viz Divorce Act 1869. The provision of section 3 (3) of the Act cater position with regard to
determination of the jurisdiction of the court and in presence of such provision in special law the provision of general law should not be taken into consideration. Reliance is placed in the
case titled as Muham mad Siddiq v. Zawar Hussain (PLD 1974 SC page 572) and it was held
as under:
"It is no doubt true that whenever any special jurisdiction is created or a power is conferred upon a Civil Court then in the absence of any provision to the contrary, the provis ions of the Code will apply to such proceedings. But it is equally well settled
that in the case of any conflict between the provisions of the Code and any local law the latter will over -ride any provisions to the contrary contained in the Code."
11. Hence, where a Special law determines a place of suing, which in the present case in
terms of section 3(3) could be either the principal Civil Court of Original jurisdiction in a district, the same would prevail over the provisions of section 20, C.P.C. It is now trite law
that the provisions of special law always override the provisions of the general law to the extent of any conflict or inconsistency between the two.
12. In the case titled as Syed Mushahid Shah and others v. Federal Investment Agency
and others (2017 CLD 1198 Supreme Court of Pakistan) and State Life Insurance
Corporation of Pakistan through Chairman and others v. Mst. Sardar Begum and others (2017 CLD 1080 Supreme Court of Pakistan) it has invariably been held as under:
"Hence where a Sp ecial law determines a place of suing, which in the present case in
terms of section 3(3) could be either the principal Civil Court of Original jurisdiction
in a district, the same would prevail over the provisions of section 20 of the Code of Civil Proced ure. It is now trite law that the provisions of special law always override
the provisions of the general law to the extent of any conflict or inconsistency between the two."
13. In view of the above discussion, the trial court below has thus dealt in accordance
with the law and arrived at a just decision, the result is that the petition is dismissed. The findings of the court below is maintained with regard to jurisdiction of Civil Judge Muslim Bagh and the trial court is directed to decide the pending sui t of respondent No.1
expeditiously and to decide the suit as soon as possible.
MH/191/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.