2010 PLP 470 (MLD)

MRS. QAISER IQBAL, J.

The applicant is seeing quashment of proceedings in a Private Criminal Complaint No.64 of 2008, under section 6 of the Muslim Family Laws Ordinance, 1961, pending adjudication before the learned XVth Civil Judge and Judicial Magistrate, Karachi East. Succinctly the facts leading to the case are that the respondent No.1 filed a complaint stating therein that she was married with Atiq-ur-Rehman son of Qari Saeed-ur-Rehman on 17-2-1992, the applicant contracted second marriage with one Shaiqa daughter of Muhammad Safdar without prior permission and consent of the respondent No.1 for entering into a second marriage nor he filed any application to the Nazim, Union Council, Jamshed Town, Karachi for obtaining permission of Arbitration Council as envisaged under section 6 of the Muslim Family Laws Ordinance, 1961. The complaint was returned by the learned XVth Civil Judge and Judicial Magistrate, Karachi East to the Respondent No.1 with the directions to file before the Union Council concerned vide order, dated 29-2-2008, which was challenged in Criminal Revision Application No.8 of 2008, the learned 1st Additional District and Sessions Judge, Karachi East, set aside the order of the learned trial Court, remanded the complaint with the directions to record the statement of respondent No.1 under section 200, Cr.P.C. as well as statement of her witnesses under section 202, Cr.P.C. The complaint was admitted for hearing after preliminary enquiry on 16-4-2008, subsequent thereof Bailable warrants for procuring the attendance of the applicant were issued. Learned counsel for the applicant has contended that provision of section 6 does not contemplate an action on behalf of private persons, which can only be initiated on behalf of the Union Council. The respondent No.1 has resorted to an action without jurisdiction intended for harassment. Respondent No.1 being a private person had no authority to initiate proceedings, complaint based upon accusation of polygamy is not sustainable in law, the proceedings initiated by the respondent No.1 are liable to be quashed. In support of the above contention reliance has been placed on the following case-law:-- (1) Subadar Malik Sher Muhammad v. The State (1986 PCr.LJ Quetta 1510. (2) Zakir Hussain Siddiqui v. Mst. Nazim Bano and others (1989 CLC Karachi 1062). Much of the stress has been laid by the learned counsel for the applicant in respect of the amendment in section 6 for the Province of 'Punjab in the Muslim Family Laws Ordinance, 1961, which is reproduced herein below in extenso:-- "6(1). No man, during the subsistence of an existence marriage, shall except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance. (2) An application for permission under subsection (1) shall be submitted to the Chairman in the prescribed manner together with the prescribed fee, and shall state reasons for the proposed marriage, and whether the consent of existing wife or wives has been obtained thereto. (3) On receipt of the application under subsection (2), Chairman shall ask the applicant and his existence wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such conditions if any, as may be deemed fit, the permission applied for. (4) In deciding the application the Arbitration Council shall record its reasons for the decision and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision, in the case of West Pakistan to the Collector and in the case of East Pakistan, to the Sub-Divisional Officer concerned and his decision shall be final and shall not be called in question in any Court. (5) Any man who contracts another marriage without the permission of the Arbitration Council shall; (a) pay immediately the entire amount of the dower whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and (b) on conviction upon complaint the punishable with simple imprisonment which may extend to one year or with fine which may extend to five thousand rupees, or with both." Learned counsel for the respondent No.1 has vehemently supported the impugned order. Mr. Mushtaq A. Memon, learned Amicus Curiae adverting to the vires of the section 6 vis-a-vis Rule 21 of the Muslim Family Laws Rules, 1961 urged that in the Provinces of Sindh, Balouchistan and N.-W.F.P., the complaint regarding polygamy could be instituted by the concerned Union Council proceedings initiated on the complaint of the respondent No.1 are invalid as no cause of action has accrued to the respondent No.1 for proceedings on the accusation of polygamy, can be adjudicated upon a complaint made by the concerned Union Council as specified under Rule 21 of the Muslim Family Laws Rules, 1961, which is reproduced herein below in extenso:- "

21. No Court shall take cognizance of any offence, under the Ordinance or these Rules, save on a complaint in writing by the Union Council stating the facts constituting the offence." It is next urged that the Chairman, Union, council cannot authorize the respondent for initiating an action on behalf of the Union Council, as the Chairman and the Union Council are two different entities. The emphasis upon Union Council to initiate action in the event of polygamy, which finds support from the case of Subedar Malik Sher Muhammad v. The State supra and Zakir Hussain Siddiqui v. Mst. Nasim Bano and others (1989 CLC 1062). Mr. Musthaq A. Memon, learned Amicus Curiae has referred to the amendment in Rule 21 for Province of Punjab came in existence on 21-11-1996 whereby a complaint in writing by an aggrieved party can be lodged whereby only husband can be prosecuted and second wife cannot be prosecuted in support thereof reliance has been placed on the following case-law:-- (1) Faheemuddin v. Sabeeha Begum (PLD 1991 SC 1074). (2) Kausar Perveen v. The State (2004 YLR 2242). I have considered the arguments of learned counsel for the parties, advanced at bar, perused the material of the case. It is well settled law that as to what has been provided under the law has to be followed in the same manner, an aggrieved party could avail normal remedies by approaching learned trial Courts Notwithstanding, it is not the intention of lawmaker that an aggrieved party under section 6(5) should approach the Court of law for redress, except that Union Council shall have the jurisdiction over the subject in the event of polygamy as the section does not contemplate delegation of authority to the private persons for initiating an action on behalf of the Union Council. In the instant case, proceedings initiated by the learned trial Court on the complaint of respondent were found to be devoid of lawful authority, it will be an exercise in futility to allow the private complaint to linger on, which tantamount to be patent illegality and flagrant abuse of process of law. In my opinion, there appears to be a bar in entertaining a private complaint directly filed by the respondent against the applicant, which amounts to violate the principle of justice, requires interference at this juncture for exercise of power of quashment. For the forgoing reasons, Criminal Miscellaneous Application is allowed impugned order is set aside, proceedings 'pending before the learned trial Court are directed to be quashed. This Criminal Miscellaneous application was disposed of by a short order, dated 27-5-2009, these are the reasons for the same. H.B.T./A-7/K Proceeding quashed.