Two Conflicting Judgments of LHC and IHC on Whether an Officer of the Pakistan Mission abroad has Jurisdiction of a Chairman, Arbitration Council.

𝐓𝐰𝐨 𝐂𝐨𝐧𝐟𝐥𝐢𝐜𝐭𝐢𝐧𝐠 𝐉𝐮𝐝𝐠𝐦𝐞𝐧𝐭𝐬 𝐨𝐟 𝐋𝐚𝐡𝐨𝐫𝐞 𝐇𝐢𝐠𝐡 𝐂𝐨𝐮𝐫𝐭 𝐚𝐧𝐝 𝐈𝐬𝐥𝐚𝐦𝐚𝐛𝐚𝐝 𝐇𝐢𝐠𝐡 𝐂𝐨𝐮𝐫𝐭 𝐨𝐧 𝐖𝐡𝐞𝐭𝐡𝐞𝐫 𝐚𝐧 𝐎𝐟𝐟𝐢𝐜𝐞𝐫 𝐨𝐟 𝐭𝐡𝐞 𝐏𝐚𝐤𝐢𝐬𝐭𝐚𝐧 𝐌𝐢𝐬𝐬𝐢𝐨𝐧 𝐚𝐛𝐫𝐨𝐚𝐝 𝐡𝐚𝐬 𝐉𝐮𝐫𝐢𝐬𝐝𝐢𝐜𝐭𝐢𝐨𝐧 𝐨𝐟 𝐚 𝐂𝐡𝐚𝐢𝐫𝐦𝐚𝐧, 𝐀𝐫𝐛𝐢𝐭𝐫𝐚𝐭𝐢𝐨𝐧 𝐂𝐨𝐮𝐧𝐜𝐢𝐥.

The Muslim Family Law Ordinance. 1961, stipulates that if a spouse wishes to divorce another spouse, he/she should file an application under section 7 of the Ordinance for Talaq before the Chairman of the Arbitration Council as defined under Section 2 (b) of the Ordinance. The Chairman is defined in section 2 (b) which is reproduced herein below for ease of reference:

“𝐒𝐞𝐜𝐭𝐢𝐨𝐧 𝟐(𝐛)

(b) “Chairman” means the Chairman of the Union Council or a person appointed by the Federal Government in the Cantonment areas or by the Provincial Government in other areas or by an Officer authorized in that behalf by any such Government to discharge the functions of chairman under Ordinance:..”

This section authorises the Federal Government and the Provincial Governments to appoint such an officer who can discharge functions of a Chairman of the Arbitration Council. The question arises that does this section empowers these Governments appoint such an officers in this behalf beyond the territorial limits of Pakistan?

The Federal Government has issued S.R.O. No.1086-K/61 dated 08.11.1961 in this regard which has authorised Director General (Administration) Ministry of External Affairs to appoint officers to Pakistan’s Foreign Missions to discharge functions of Chairman as defined under section 2(b) of the Ordinance.

𝐅𝐢𝐧𝐝𝐢𝐧𝐠𝐬 𝐨𝐟 𝐭𝐡𝐞 𝐈𝐬𝐥𝐚𝐦𝐚𝐛𝐚𝐝 𝐇𝐢𝐠𝐡 𝐂𝐨𝐮𝐫𝐭:

The Islamabad High Court answers the above question in negative and holds in a detailed judgment of 27 pages that such an interpretation would defeat the concept of federalism as this would allow the Provincial Governments as well to appoint an officer in this behalf abroad. Similarly, the Ordinance has extra territorial applicability over Pakistanis wherever they may be. It implies that the Ordinance and the jurisdiction of the Arbitration Council has been enlarged to those citizens   who live abroad. Hence, establishing a parallel Arbitration Council or an office of Chairman does not make any sense when the domestic Arbitration Councils have extra territorial jurisdiction. The IHC further held that the whole scheme of our family laws suggests  that there be a proper record of the marriages and the matters connected thereto. This purpose is not served by the officers appointed in this behalf in the Pakistan Missions abroad.  Thus, the IHC declared the S.R.O. No.1086-K/61 dated 08.11.1961 Ultra Vires Section 2 (b) of the Ordinance.

𝐅𝐢𝐧𝐝𝐢𝐧𝐠𝐬 𝐨𝐟 𝐭𝐡𝐞 𝐋𝐚𝐡𝐨𝐫𝐞 𝐇𝐢𝐠𝐡 𝐂𝐨𝐮𝐫𝐭:

However, the Lahore High Court has recently given a judgment on similar facts and has held that the said S.R.O is completely in vogue in Punjab as a judgment of one High Court is not binding on another High Court. The S.R.O has not been withdrawn by the Federal Government thus it is applicable to the extent of the other provinces and the officers of the Pakistani Mission abroad authorised in his behalf have jurisdiction to decide the divorce applications.

This highlights an issue of our country that we have travelled a long journey from the inception of our country but we are still stuck in pity  legal issues. We have not developed our laws neither we have ever tried to draft them well.

Islamabad High Court Judgment:

Lahore High Court Judgment: