Khadeja Bibi etc. vs A.D.J etc.

Stereo. H C J D A 38.

Judgment Sheet

LAHORE HIGH COURT,

Rawalpindi Bench, Rawalpindi

JUDICIAL DEPARTMENT

C.R. No.261-D/2021

Khadeja Bibi & another.

VS.

Additional District Judge, etc.

JUDGMENT

Date of hearing: 21.09.2026

Petitioners by: Mrs. Sarkar Abbas and Mrs. Noureen Mumtaz Chattha, Advocates.

Respondents No.3 to Ex-parte vide order dated 17.11.2026 5 by:

Respondents No.6 to Mr. Muhammad Idrees Rafiq Bhatti, 9 by: Assistant Advocate General.

Mr. Muhammad Irshad, Assistant Advocate General.

Syed Ahsan Raza Kazmi, J. Through the instant civil revision petition, instituted under Section 115 of the Code of Civil Procedure, 1908, the petitioners have called in question the legality and propriety of the judgment and decree dated 03.10.2020 passed by the learned Civil Judge, Rawalpindi, whereby their suit was dismissed, as well as the judgment and decree dated 30.03.2021 passed by the learned Additional District Judge, Rawalpindi, whereby their appeal under Section 96 CPC was dismissed and the decision of the learned Trial Court was maintained.

2.Briefly stated, the petitioners instituted a suit for declaration, cancellation, permanent injunction and mandatory injunction, seeking, inter alia, a declaration that the divorce notice purportedly issued in respect of their marriage was fake, forged and fraudulent and that the consequential Divorce Effective Certificate issued by the official respondents was illegal, without lawful authority and of no legal effect.

The respondents contested the suit by filing their respective written statements. The learned Trial Court framed issues and proceeded with the recording of oral and documentary evidence. However, at the conclusion of the proceedings, it dismissed the suit, principally on the ground that the matter fell within the exclusive jurisdiction of the Family Court under the West Pakistan Family Courts Act, 1964. The petitioners’ appeal against the said judgment and decree was also dismissed by the learned Additional District Judge, Rawalpindi, vide judgment and decree dated 30.03.2021. Hence, the present civil revision petition.

3.Learned counsel for the petitioners contends that the Courts below failed to appreciate the true nature of the controversy and the substance of the relief sought by the petitioners. It is argued that the grievance of the petitioners does not merely concern the dissolution of marriage or the determination of a matrimonial dispute; rather, it concerns the purported initiation of divorce proceedings by a third party, without the authority, consent or participation of the husband, followed by the issuance of an official Divorce Effective Certificate. Learned counsel maintains that the proceedings culminating in the issuance of the certificate were fundamentally defective, as no divorce had ever been pronounced by petitioner No. 1 and no notice had been issued by him in accordance with Section 7 of the Muslim Family Laws Ordinance, 1961. It is further contended that the Courts below, after having proceeded with the matter and examined the evidence, failed to provide an effective adjudication of the petitioners’ grievance and erroneously non-suited them on the question of jurisdiction.

4.I have heard learned counsel for the petitioners as well as the learned Law Officer and have examined the available record with their assistance. It is noted that, vide order dated 06.12.2021, respondents No. 3 and 4, despite having been represented through learned counsel on earlier occasions, were proceeded against ex parte upon failure of their representative to enter appearance. The matter has, therefore, been examined in the light of the available record and the submissions addressed by the parties appearing before this Court.

5.The core issue of law that falls for determination before this Court concerns the legal propriety of a trial court conducting a full-fledged trial, framing issues, recording evidence, and rendering findings on the merits of a suit, only to conclude at the final stage that the matter exclusively falls within the jurisdiction of the Family Court under the West Pakistan Family Courts Act, 1964, and consequently dismissing the suit.

6.It is a fundamental canon of civil jurisprudence that jurisdiction is the root of judicial power. A court of law must first satisfy itself regarding its subject-matter competence as a preliminary threshold. Under Section 5 of the West Pakistan Family Courts Act, 1964, read with its Schedule, exclusive jurisdiction over specified family disputes (such as dower, maintenance, dissolution of marriage, and custody) is vested strictly in the Family Court, thereby impliedly ousting the general jurisdiction of the ordinary Civil Court under Section 9 of the Code of Civil Procedure, 1908

(CPC).

7.In the present case, the petitioners’ grievance concerns the alleged unauthorized initiation of divorce proceedings and the consequential issuance of a Divorce Effective Certificate by the official respondents. The controversy is, therefore, intrinsically connected with the marital status of the petitioners and the legal consequences of the purported dissolution of their marriage. The mere allegation that the divorce notice or certificate is forged or fraudulent does not, by itself, confer jurisdiction upon an ordinary Civil Court where the substantive dispute falls within the exclusive domain of the Family Court. The Supreme Court of Pakistan, in “Muhammad Yousaf Vs. Additional District Judge, Multan and others” (2023 SCMR 1002), considered the scope of the jurisdiction conferred upon Family Courts following the amendment introduced by the Family Courts (Amendment) Act, 2015 (XI of 2015), whereby the residuary entry "any other matter arising out of the Nikahnama" was inserted at serial No. 10 in Part I of the Schedule to the West Pakistan Family Courts Act, 1964. The Apex Court observed: - "We further see that the nature of the claim asserted in the civil suit of the petitioner falls within the exclusive jurisdiction of the family court since 2015 when the

Family Courts Act, 1964 was amended in Punjab and a new residuary entry - 'any other matter arising out of the Nikahnama' - was introduced at serial No. 10 in Part I of the Schedule to the Act (by way of Family Courts (Amendment) Act, 2015 (XI of 2015)). Thus a suit challenging the validity of any entry of the Nikahnama was to be tried exclusively by the family court."

The above pronouncement underscores that the forum competent to adjudicate a family-related controversy must be identified by reference to the true nature of the dispute and the applicable statutory provisions. The Supreme Court further elucidated the governing principles in “Muhammad Shakeel and others Vs. Additional District Judge, Faisalabad and others” (PLD 2025 Supreme Court 572), observing that the jurisdiction of a Family Court is primarily determined by the subject matter of the dispute rather than the identities of the parties. The relevant passage reads: - "A comprehensive examination of the preamble, section 2(d), section 5, and the schedule of the Family Courts Act of 1964 provides substantial clarity on two foundational principles that underlie the legal framework governing the Family Court. Firstly, it becomes clear that the jurisdiction of the Family Court is not contingent upon the identities of the individuals or persons involved; instead, it is fundamentally defined by the nature of the subject matter presented in the suit."

The aforesaid principle reinforces the conclusion that the petitioners' grievance, in substance, concerns a matter relating to their marital status and the purported dissolution of their marriage, which is required to be examined within the applicable statutory framework governing family disputes. Consequently, the conclusion reached by the learned Courts below regarding the want of jurisdiction of the ordinary Civil Court does not call for interference.

8.Nevertheless, the exercise of revisional jurisdiction by this Court is not rendered redundant merely because the Courts below have reached a conclusion regarding their lack of jurisdiction. The impugned judgments and decrees remain amenable to examination to determine whether the Courts below adopted the legally prescribed procedure and whether their orders have resulted in a failure of justice. Where a Court concludes that it

lacks jurisdiction to entertain a suit, it cannot proceed to adjudicate the substantive rights of the parties as though it were competent to do so. The appropriate procedural course, ordinarily, is to act in accordance with Order VII Rule 10 CPC and return the plaint for presentation before the competent Court, subject to the applicable law. Reliance can be placed upon the cases titled as “Muhammad Afzal Khan and others Vs. Ali Akbar and others” (2005 CLC 988), “Ms. Namoos Zaheer Vs. Azfar Hussain and another” (2016 CLC 1425) and “Raja Khurshid Ali Vs. Dr. Abdul Malik” (1991 SCMR 1944). The material distinction in the present case is that the controversy has already undergone extensive proceedings, the parties have had an opportunity to place their respective positions before the Court, and oral as well as documentary evidence has been recorded. The record is stated to contain material directly bearing upon the circumstances in which the impugned certificate was procured. In these circumstances, the question before this Court is not simply whether the Courts below were correct in identifying the proper forum, but also whether the proceedings culminating in the impugned judgments and the consequential civil consequences complained of by the petitioners can be allowed to remain unexamined.

9.The next question before entering into the substantive controversy, is to determine the proper exercise of the revisional jurisdiction of this Court. The first question is whether, in the circumstances of the present case, this Court should merely set aside the impugned judgments and remit the matter for further proceedings before another forum, or whether the controversy can appropriately be brought to a final conclusion on the basis of the material already available on the record.

10.The supervisory jurisdiction of this Court must, however, be exercised within the limits prescribed by law. The fact that evidence has already been recorded cannot, standing alone, confer upon a Court a jurisdiction which the statute withholds from it. Nor can the procedural error of one Court, by itself, enlarge the subject-matter jurisdiction of another. The course adopted in the present revision must, therefore, rest upon the nature of the relief sought, the statutory framework governing

the dispute and the extent to which the existing record permits a lawful and effective resolution without prejudicing the rights of any party. In the present case, the parties are elderly citizens who have already spent number of years pursuing their remedies before the courts; therefore, compelling them to institute fresh proceedings, undergo a de novo trial, and re-examine evidence already recorded would occasion undue hardship and frustrate the ends of justice. Procedural rules are intended to advance, rather than obstruct, the administration of justice, and this Court, in exercise of its supervisory revisional jurisdiction under Section 115 CPC, is required to examine whether the impugned judgment and decree can lawfully withstand the jurisdictional and procedural objections raised against them. The revisional jurisdiction is invoked to correct the legal consequences flowing from an erroneous judgment and to prevent the petitioners’ grievance from being left unresolved. Accordingly, while examining the legality of the impugned proceedings and decree, this Court shall proceed to assess the evidence already available on record in the light of the applicable statutory requirements, without treating the completion of the earlier trial as a substitute for the jurisdictional requirements prescribed by law. Where the entire evidence is available on record, the parties have had a full opportunity to present their respective cases, and no further factual inquiry is required, a futile remand or retrial would serve no useful purpose. The Supreme Court of Pakistan has emphasized that disputes should, wherever possible, be decided on their substantive merits instead of subjecting litigants to prolonged technical proceedings, particularly where advanced age, hardship, and delay are involved. Reliance is placed upon cases titled as “Mst. Shahida Zareen Vs. Iqrar Ahmed Siddiqui” (2010 SCMR 1119) “The Secretary/Chairman Railways, Government of Pakistan, Ministry of Railways, Islamabad and others Vs. Tariq Mansoor and others” (2016 SCMR 807) and “Faisal Paracha and another Vs. Additional District Judge and others” (2026 SCMR 1355). Consequently, notwithstanding the procedural error committed by the learned Trial Court in dismissing the suit instead of returning the plaint under Order VII Rule 10 CPC, this Court considers it appropriate, subject to the jurisdictional and statutory requirements of

law, to examine the evidence available on record and determine the controversy on its substantive merits, thereby avoiding unnecessary procedural hardship and ensuring a just, effective, and conclusive resolution of the dispute.

11.The present case requires consideration of the nature of the impugned administrative act. The petitioners do not merely seek a declaration concerning the existence or otherwise of a matrimonial relationship; they challenge an official certificate which, according to them, was generated on the basis of a divorce notice submitted by a person who had no established authority to act on behalf of petitioner No.1. The legality of that administrative act cannot be determined merely by reference to the fact that a certificate was issued or that the relevant entry was made in an official register. An official record is required to rest upon a lawful factual and statutory foundation. Where that foundation is specifically challenged, the authority issuing or maintaining the record must be able to demonstrate the legal basis upon which the impugned entry was made.

12.Coming to the merits of the controversy, the material facts necessary for its determination are not complicated. The petitioners assert that they were lawfully married and continued to reside together in a subsisting marital relationship. Petitioner No.1 categorically denies having pronounced divorce upon petitioner No.2, whether orally or in writing, or having issued any notice under Section 7(1) of the Muslim Family Laws Ordinance, 1961, to the Chairman of the concerned Union Council. Petitioner No.2, in turn, denies having received any notice of divorce or any summons for reconciliation. Their case is that, notwithstanding the absence of any such act on their part, an official Divorce Effective Certificate was issued, purporting to declare their marriage dissolved.

13.Section 7(1) of the Muslim Family Laws Ordinance, 1961, provides that a man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman

notice in writing of having done so and supply a copy thereof to the wife. The statutory scheme thus proceeds upon the existence of an actual pronouncement of divorce, followed by the prescribed written notice and the statutory process contemplated by law. The administrative machinery established under the Ordinance is intended to operate upon the occurrence of the legally relevant event; it is not intended to create that event independently of the person whose act is required by law.

14.The distinction between the pronouncement of divorce and the subsequent administrative process is fundamental. A notice under Section 7 is not an independent instrument by which a third party may, at will, bring about the dissolution of another person’s marriage. The statutory process is consequential upon the pronouncement of divorce and cannot lawfully be initiated in the absence of that foundational act. Likewise, the issuance of a certificate recording the effectiveness of a purported divorce cannot, by itself, cure the absence of the very act upon which the statutory process depends. It follows that the authority receiving a divorce notice must have a lawful basis for treating the communication as a notice contemplated by Section 7. The identity of the person submitting it, the capacity in which it is submitted and the existence of the act to which the notice relates are not inconsequential administrative details. They go to the root of the authority to initiate and process the statutory proceedings. If the notice is submitted by a third party without established authority from the person concerned, and no pronouncement of divorce by that person is established, the resulting administrative action cannot acquire legality merely because the prescribed authority has processed the application or issued a certificate.

15.In the present case, the petitioners specifically maintain that petitioner No.1 neither pronounced divorce nor authorized respondent No.4 to initiate the proceedings on his behalf. The available record, as presented before this Court, indicates that the notice in question was submitted by respondent No.4, who is stated to be the sibling of petitioner No.1. Respondent No.4 has not established any lawful authority, including an authorization specifically empowering him to act on behalf

of petitioner No.1 in this regard. The record, therefore, does not disclose a lawful basis for treating the act of respondent No.4 as the act of petitioner No.1. The relationship of a person submitting a notice with the husband or wife cannot, by itself, confer authority to exercise a personal legal right on behalf of that spouse. A sibling, parent or other relative does not acquire such authority merely by virtue of the relationship. In the absence of a legally recognized basis for acting on behalf of the person concerned, the official respondents could not lawfully treat the third party’s act as sufficient proof that the husband had pronounced divorce and had initiated the statutory process.

16.The subsequent conduct of the official respondents also requires scrutiny. The Chairman of the Union Council and the concerned officials perform statutory functions in connection with the notice, reconciliation process and the consequential certification contemplated by law. Their functions must be exercised in accordance with the statutory scheme and upon verification of the material necessary to establish that the proceedings have been lawfully initiated. They cannot proceed on the assumption that a communication received from any person, irrespective of his identity or authority, is sufficient to set the statutory process in motion. The absence of a valid initiating act cannot be overcome merely by conducting administrative proceedings thereafter. Nor can the passage of the prescribed period, or the preparation of a certificate at its conclusion, retrospectively validate proceedings that lacked a lawful foundation from the outset. Where the essential statutory precondition is absent, subsequent procedural steps cannot supply what was missing at the inception.

17.The petitioners have further asserted that no notice was served upon petitioner No.2 and that she was never called upon to participate in reconciliation proceedings. These assertions assume significance when considered alongside the denial by petitioner No.1 of having pronounced divorce or initiated the proceedings. The statutory process is not an empty formality. It is intended to provide an opportunity for reconciliation and to regulate the legal consequences of a pronouncement of divorce in

accordance with law. The prescribed notice and reconciliation procedure cannot be dispensed with merely because an application has been received and the relevant authority has proceeded to issue a certificate. At the same time, the absence of service of notice upon the wife must be assessed in the context of the applicable statutory provisions and the available record. In the present case, the principal defect is not confined to a complaint about the manner in which notice was served; it concerns the antecedent question whether a lawful divorce notice was ever submitted by, or on behalf of, the person who was required to initiate the statutory process. If that foundational requirement is not satisfied, the subsequent administrative proceedings cannot sustain the certificate.

18.The official respondents were required to act upon a legally cognizable notice and to ensure that the statutory requirements governing the process were observed. They could not treat the assertion of a third party as conclusive proof of a pronouncement of divorce by petitioner No.1, particularly when the authority of the person submitting the notice was not established. The issuance of a Divorce Effective Certificate in such circumstances would permit an administrative entry to determine a person’s matrimonial status without the essential factual and legal basis required by the governing law. The consequences of such an act are substantial. An official certificate purporting to record the dissolution of a marriage is capable of affecting the legal status of both spouses and the official records maintained in relation to them. It is, therefore, incumbent upon the competent authority to ensure that the certificate is traceable to a lawful proceeding. Administrative convenience, the completion of formalities or the mere existence of an official entry cannot prevail over the absence of the statutory conditions upon which the validity of that entry depends.

19.It is equally important to distinguish between a genuine dispute concerning the legal effect of a divorce validly pronounced and a case in which the very initiation of the divorce process is challenged as unauthorized. In the former situation, the Court must determine the legal consequences of the established act in accordance with the applicable law.

In the latter, the inquiry necessarily extends to the existence of the foundational act and the authority under which the administrative proceedings were commenced. The official respondents cannot rely upon the certificate itself as proof of the validity of the process which culminated in its issuance, where the very basis of that process is under challenge. On the facts presented, the denial of petitioner No.1 is specific and categorical. The petitioners’ position is further supported by the asserted absence of any notice issued by him and by the material indicating that respondent No.4 alone submitted the communication in question. No lawful authority enabling respondent No.4 to initiate the proceedings on behalf of petitioner No.1 has been established. The resulting certificate, therefore, lacks the necessary legal foundation and cannot be sustained merely on the basis that the official respondents acted upon the communication received by them.

20.The dismissal of the suit, without adopting the legally appropriate course, exposed the petitioners to the consequences of an adjudication by a forum that had itself declined jurisdiction over the subject matter. The learned Appellate Court, in turn, failed to correct this procedural defect and maintained the decision of the learned Trial Court. The impugned judgments and decrees, therefore, cannot be sustained in their present form. Their setting aside is necessary to remove the legal consequences of the erroneous course adopted by the Courts below. The rights of the parties must be determined through a legally permissible exercise of jurisdiction. In the present matter, the Court has examined the challenge to the impugned administrative certificate by reference to the statutory requirements governing its issuance and the material available on record. The conclusion concerning the certificate rests upon the absence of an established pronouncement of divorce by petitioner No.1, the absence of established authority in respondent No.4 to initiate the proceedings on his behalf, and the resulting failure to demonstrate a lawful foundation for the administrative action. These defects go to the root of the impugned certificate. The certificate cannot be sustained as a lawful record of dissolution of marriage when the essential act upon which the statutory

process depends has not been established. The official respondents cannot be permitted to maintain an entry affecting the matrimonial status of the petitioners solely on the basis of a notice submitted by a third party whose authority to act on behalf of petitioner No.1 has not been demonstrated.

21.In view of the foregoing discussion, the impugned judgments and decrees dated 03.10.2020 and 30.03.2021 cannot be allowed to stand. The controversy raised by the petitioners concerns not merely an irregularity in the subsequent administrative proceedings but the absence of a demonstrated lawful basis for initiating those proceedings in the first place. The continued operation of the impugned Divorce Effective Certificate, in the circumstances established on the available record, would perpetuate an official entry whose legal foundation has not been shown to exist.

22.Accordingly, the civil revision petition is allowed. The judgment and decree dated 03.10.2020 passed by the learned Civil Judge, Rawalpindi, and the judgment and decree dated 30.03.2021 passed by the learned Additional District Judge, Rawalpindi, are set aside. The impugned Divorce Effective Certificate, having been issued without an established lawful foundation under the statutory scheme, is declared to be without lawful authority and of no legal effect. The concerned official respondents shall take consequential action in accordance with law to cancel the said certificate and correct the relevant official record.

(Syed Ahsan Raza Kazmi)

JUDGE

Approved for reporting.

JUDGE

Ejaz*