Legal Sanctity of Nikah between Christian spouses
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This case involved a dispute over where a divorce lawsuit could be heard. A husband and wife had married in Karachi through a Nikahnama (Islamic marriage contract) registered with the Nikah Registrar in Garden West, Karachi. They later moved to Canada, went through a second Nikah ceremony there to satisfy Canadian legal requirements, and the wife eventually obtained a judicial separation from a Canadian court. When the wife filed a suit in Karachi seeking dissolution of the marriage, the Family Court initially returned her plaint, saying it lacked jurisdiction since both parties had become Canadian nationals. She appealed, and the Additional District Judge set aside that order, ruling that evidence needed to be recorded before deciding the jurisdiction question. The husband then challenged this in the High Court.
The Sindh High Court dismissed the husband's petition. It held that he could not prove the couple had actually given up their Pakistani citizenship, and since the original Nikah was validly registered in Karachi, the Karachi courts could hear the case. The court also noted that under Islamic law, a second Nikah performed on top of an existing valid marriage is meaningless, and a foreign judicial separation does
یہ مقدمہ اس تنازع سے متعلق تھا کہ طلاق کا دعویٰ کہاں سنا جا سکتا ہے۔ ایک میاں بیوی نے کراچی میں نکاح نامے کے ذریعے شادی کی تھی جو گارڈن ویسٹ، کراچی کے نکاح رجسٹرار کے ہاں رجسٹرڈ تھا۔ بعد ازاں وہ کینیڈا منتقل ہو گئے، جہاں کینیڈا کے قانونی تقاضے پورے کرنے کے لیے انہوں نے دوبارہ نکاح کی رسم ادا کی، اور بالآخر بیوی نے کینیڈا کی عدالت سے عدالتی علیحدگی (judicial separation) حاصل کر لی۔ جب بیوی نے کراچی میں فسخ نکاح کے لیے دعویٰ دائر کیا تو فیملی کورٹ نے ابتدائی طور پر یہ کہتے ہوئے اس کا عرضی واپس کر دی کہ چونکہ دونوں فریقین کینیڈین شہری بن چکے ہیں اس لیے اسے اس پر سماعت کا اختیار نہیں ہے۔ بیوی نے اس فیصلے کے خلاف اپیل کی، اور ایڈیشنل ڈسٹرکٹ جج نے وہ حکم کالعدم قرار دیتے ہوئے فیصلہ دیا کہ دائرہ اختیار کا سوال طے کرنے سے پہلے شواہد ریکارڈ کیے ج
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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 another Nikah 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, Clifton , Karachi . 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.