Polygamy

2024 CLC 1170 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.20Muslim Family Laws Ordinance (VIII of 1961), S.6Trial of offencesJurisdictionPolygamyLocus standi to file complaintScope

Petitioner / wife filed criminal complaint through her attorney against respondent / husband for contracting second marriage without permission of petitioner

Trial Court and Lower Appellate Court dismissed complaint and appeal filed by petitioner

Validity

Family Court is empowered to take cognizance and try any offence under Muslim Family Laws Ordinance, 1961

Petitioner was precluded to file complaint through attorney

High Court declined to interfere in orders passed by two Courts below as there was no perversity or material irregularity in the orders

Constitutional petition was dismissed, in circumstances.

2024 MLD 786 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.6PolygamyContracting second Nikah during subsistence of marriagePrivate complaint filed by first/existing wifeIngredients of the alleged offence, non- existence ofUnlawful act and criminal intent

First/existing wife filed private complaint not only against her husband but also against second wife, witnesses of Nikah, Nikah Reciter, Registrar and secretary Union Council

Family Court after recording cursory evidence of the complainant, summoned the accused /husband and dismissed the complaint to the extent of remaining accused persons (second wife, witnesses of Nikah, Nikah Reciter, and secretary/registrar Union Council)

Appellate Court dismissed the criminal revision preferred by the complainant against the order of the Family Court

Plea of the petitioner (first wife/complainant) was that that sufficient evidence in the shape of second Nikahnama was available to proceed against the remaining respondents accused of facilitating the offence

Validity

Complaint filed against any accused must state the facts disclosing existence of both the unlawful act and the criminal intent so that the Court may be satisfied regarding existence of every ingredient of the alleged offence

Court is not required to casually accept the written complaint until it has satisfied itself that prima facie the case has been made out against the persons who have been accused of the criminal offence

In order to arrive at just evaluation, the Court ordinarily examines the complainant and the witnesses as cursory evidence

Purpose behind that practice is to protect the public from false and frivolous complaints filed against them in criminal Courts

Complaint in the present case did not disclose commission of any offence, much less the offence prescribed under S. 6(5) of the Ordinance 1961 allegedly committed by any of the respondents except the husband who, being accused of contracting another marriage without permission of Arbitration Council, had been lawfully summoned by the Court of competent jurisdiction

Petitioner had not been able to point out what offence, if any, disclosed in the complaint filed by the petitioner, was prima facie made out against other respondents

No illegality or jurisdictional error had been noticed in the impugned orders passed by the Courts below warranting interference in exercise of jurisdiction under Art. 199 of the Constitution

Constitutional petition was dismissed in limine, in circumstances.

2024 MLD 786 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.6Penal Code (XLV of 1860), S. 109PolygamyContracting second Nikah during subsistence of marriagePrivate complaint filed by first/existing wifeAbetmentScopeInchoate offence

First/existing wife filed private complaint not only against her husband but also against second wife, witnesses of Nikah, Nikah Reciter, Registrar and secretary Union Council

Family Court after recording cursory evidence of the complainant, summoned the accused /husband and dismissed the complaint to the extent of remaining accused persons (second wife, witnesses of Nikah, Nikah Reciter, and Secretary/Registrar Union Council)

Appellate Court dismissed the criminal revision preferred by the complainant against the order of the Family Court

Plea of the petitioner (first wife/complainant) was that that sufficient evidence in the shape of second Nikahnama was available to proceed against the remaining respondents being accused of facilitating the offence

Validity

Muslim Family Laws Ordinance, 1961 ('the Ordinance, 1961') is a special statute; in the absence of any specific provision in the Ordinance, 1961 permitting applicability of the Pakistan Penal Code, provisions such as S. 109 of the P.P.C. for the offence of abetment cannot be read into and made applicable to broaden scope of the offence prescribed under S.6(5) of the Ordinance, 1961

Complaint in the present case did not disclose commission of any offence, much less the offence prescribed under S. 6(5) of the Ordinance 1961 allegedly committed by any of the respondents except the husband who, being accused of contracting another marriage without permission of Arbitration Council, had been lawfully summoned by the Court of competent jurisdiction

Petitioner had not been able to point out what offence, if any, disclosed in the complaint filed by the petitioner, was prima facie made out against other respondents

No illegality or jurisdictional error had been noticed in the impugned orders passed by the Courts below warranting interference in exercise of jurisdiction under Article 199 of the Constitution

Constitutional petition was dismissed in limine, in circumstances.

2024 MLD 786 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 6PolygamyContracting second Nikah during subsistence of marriagePrivate complaint filed by first/existing wifeIngredients of the alleged offence, non-existence ofPunishment or penaltyInchoate offence

First/existing wife filed private complaint not only against her husband but also against second wife, witnesses of Nikah, Nikah Reciter, Registrar and Secretary Union Council

Family Court after recording cursory evidence of the complainant, summoned the accused /husband and dismissed the complaint to the extent of remaining accused persons (second wife, witnesses of Nikah, Nikah Reciter and Secretary/Registrar Union Council)

Appellate Court dismissed the criminal revision preferred by the complainant against the order of the Family Court

Plea of the petitioner (first wife/complainant) was that that sufficient evidence in the shape of second Nikahnama was available to proceed against the remaining respondents accused of facilitating the offence

Validity

Provisions of S.6 of the Muslim Family Laws Ordinance, 1961 ('the Ordinance 1961') manifest that S. 6 neither makes the registration of another marriage contracted without permission of the Arbitration Council an offence nor the Ordinance prescribes any inchoate offence in relation to polygamy such as attempt, solicitation or conspiracy

Section 6 of the Ordinance 1961 does not prescribe any punishment or penalty against anyone other than the husband who contracts another marriage without permission of the Arbitration Council concerned

Enactments prescribing an offence are to be construed strictly and the words used therein cannot be extended by construction

Complaint in the present case did not disclose commission of any offence, much less the offence prescribed under S. 6(5) of the Ordinance 1961 allegedly committed by any of the respondents except the husband who, being accused of contracting another marriage without permission of Arbitration Council, had been lawfully summoned by the Court of competent jurisdiction

Petitioner had not been able to point out what offence, if any, disclosed in the complaint filed by the petitioner, was prima facie made out against other respondents

No illegality or jurisdictional error had been noticed in the impugned orders passed by the Courts below warranting interference in exercise of jurisdiction under Art. 199 of the Constitution

Constitutional petition was dismissed in limine, in circumstances.

2023 YLR 2140 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 6PolygamyScopePolygamy is a subject matter covered by S. 6 of the Muslim Family Laws Ordinance, 1961

Subsection (1) postulates that no man, during the subsistence of an existing 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 the Muslim Family Laws Ordinance, 1961

Subsection (5) stipulates consequences for contracting another marriage without the permission of the Arbitration Council in terms of making him liable to pay immediately the entire amount of the dower, whether prompt or deferred, due to existing wife or wives, if not so paid, to be recovered as arrears of land revenue and prescribes it to be an offence triable upon complaint and punishable on conviction with simple imprisonment which may extend to one year and with fine of five hundred thousand rupees.

2023 YLR 2140 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 6Qanun-e-Shahadat (10 of 1984), Art. 163Oaths Act (X of 1873), Ss. 8, 9, 10 & 11PolygamyAcceptance or denial of claim on oathScope

Respondent (wife) moved a complaint against the petitioner (husband) under S. 6(5) of the Muslim Family Laws Ordinance, 1961, for contracting second marriage without permission of the Arbitration Council

During the course of cross-examination upon the respondent, a question regarding birthplaces of her elder children was put to her, in response to which she offered if the petitioner took oath on Holy Quran that the two children were born at his house, she would withdraw the complaint, which was accepted by the petitioner

However, the Family Court observed that oath on Holy Quran was not applicable in criminal proceedings

Petitioner filed an appeal before the Sessions Judge, which was dismissed

Validity

Article 163 of the Qanun-e-Shahadat, 1984, governs acceptance or denial of claim on oath, application whereof to laws relating to criminal proceedings has expressly been excluded under clause (3)

Additionally, S. 8 of the Oaths Act, 1873, specifies the power of Court to tender certain oaths and S. 9 of the Oaths Act, 1873, embodies discretionary power of the Court to ask party or witness whether he will make oath proposed by the opposite party, while S. 10 outlines the administration of oath if accepted and S. 11 outlines the status of the evidence so given to be conclusive proof of the matter as against the person who offered to be bound as above

Provisions of Ss. 8 to 11 of the Oaths Act, 1873, are not applicable to criminal proceedings

No illegality or jurisdictional error was found in the impugned orders

Constitutional petition was dismissed.

2017 PLD 187 SUPREME-COURT Judicial Precedent

S. 6(2)PolygamyHusband contracting another marriage without permission from Arbitration Council

Plea of husband that at the time of second marriage term of elected councillors had expired and local government elections had not been held, therefore, there was no Chairman of the Arbitration Council before whom he could submit an application for second marriage

Validity

Said plea was not sustainable because in the absence of elected representatives the Administrator or another designated officer acted as the Chairman

Petition for leave to appeal was dismissed accordingly.

2017 PLD 187 SUPREME-COURT Judicial Precedent

S. 6(5)(b)[Punjab] Rules made under the Muslim Family Laws Ordinance, 1961, R. 21PolygamyHusband contracting another marriage without permission from Arbitration CouncilPerson competent to file complaintScope

Plea of husband that the court could not take cognizance of the offence on the complaint of the first wife since the Union Council had not itself complained to the court

Validity

Said plea was not correct because R.21 of the [Punjab] Rules made under the Muslim Family Laws Ordinance, 1961 required the submission of complaint by an "aggrieved party"

Wife clearly was an aggrieved party and sent a written complaint, which was forwarded to the Magistrate by the Administrator, Union Council

Since the rule did not stipulate whether the complaint was to be submitted to the Court by the aggrieved party herself or it may be routed through the office of the Chairman or the Union Council it would not be appropriate to impose any particular mode of submission of complaints in such regard

Petition for leave to appeal was dismissed accordingly.

2017 PLD 187 SUPREME-COURT Judicial Precedent

S. 6PolygamyHusband contracting another marriage without permission from Arbitration CouncilQuestion as to whether S.6 of Muslim Family Laws Ordinance, 1961 was against the Injunctions of Islam

Held, that concealment by a husband of his previous marriage/s or contracting another marriage with callous disregard of his wife may disrupt the love, tranquillity and mercy ordained by Allah Almighty

When a husband, without his wife's permission or in secret, took another wife, question was whether his dealing with the first wife could be categorized as just or whether he was maintaining the footing of kindness and equity

After issuing the warning that wives must be dealt justly, Almighty Allah wanted to prevent husbands from doing injustice by prescribing that in such cases a man should take only one [wife]

Since S.6 of the Muslim Family Laws Ordinance, 1961 sought to prevent injustice being done, thus, it conformed to the Islamic injunctions.

2015 PLD 208 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 6(5)West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.Constitution of Pakistan, Art.199Constitutional petitionPolygamyPayment of dower in case husband contracted a second marriage without permission of Arbitration CouncilScope

Suit for recovery of maintenance allowance, and dower was decreed inter alia on the ground that the husband had taken a second wife without obtaining permission of the Arbitration Council in terms of S.6(5) of the Muslim Family Laws Ordinance, 1961

Contention of the husband/petitioner was that suit for recovery of downer could not be decreed as the dower was deferred and not prompt

Held, that language of S.6(5)(a) of the Muslim Family Laws Ordinance, 1961 was very clear that in case a man contracted a second marriage without the requisite permission from the Arbitration Council concerned, he shall be liable to immediately pay to the existing wife/wives, the entire amount of the dower due, whether the same was prompt or deferred

In the present case, nothing was on record which showed that the husband/petitioner obtained the necessary permission from the Arbitration Council concerned

No illegality, therefore, existed in the impugned order

Constitutional petition was dismissed, in circumstances.

2013 CLC 1203 PESHAWAR-HIGH-COURT Judicial Precedent

S. 6Dissolution of Muslim Marriages Act (VIII of 1939), S.2PolygamyDissolution of marriageCrueltyGrounds

When husband had not only neglected the wife rather had contracted the second marriage without the consent of the wife as well as without fulfilling the formalities provided under S.6 of the Muslim Family Laws Ordinance, 1961, such was also a ground of "cruelty".