Muslim Family Laws Ordinance: IHC dismisses petition challenging Section 6

ISLAMABAD: The Islamabad High Court (IHC) on Thursday turned down a petition challenging Section 6 of the Muslim Family Laws Ordinance, 1961, which says that no man can contract the second marriage without the permission of his first wife.

A single bench of Chief Justice Athar Minallah dismissed the petition filed by a woman who wanted to become the third wife of a person.

The petitioner, Zill-e-Huma Farooq, assailed the vires of Section 6 of the Muslim Family Laws Ordinance, 1961 and submitted in her petition that she was prevented from entering into a marriage contract with a man because his other two wives refused to give their consent.

The Section 6 of this law states, "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 this Ordinance."

The counsel for the petitioner mainly argued that the Section 6 of the Ordinance of 1961 was in conflict with the injunctions of Islam and Articles 2A and 35 of the Constitution of Pakistan.

The bench observed that the Ordinance of 1961 was promulgated and notified in the official gazette on 02-03-1961 with the object of giving effect to the recommendations of the Commission on Marriage and Family Laws.

The Section 6 deals with polygamy. Sub-section (1) of the Section 6 is couched in negative language and provides that during the subsistence of an existing marriage, no man shall contract another marriage except with the previous permission in writing of the Arbitration Council. Sub-section (2) provides that an application seeking permission shall be submitted to the Chairman in the prescribed manner together with the prescribed fee and shall state the reasons for the proposed marriage and whether the consent of the existing wife or wives has been obtained thereto. Sub section (3) empowers the Chairman to grant permission if satisfied that the proposed marriage is necessary and just. Sub section (4) further describes the manner in which the application has to be dealt with by the Arbitration Council. Sub section (5) provides the consequences in the event of contracting another marriage without the permission of the Arbitration Council.

It added that Clause (b) further provides that on conviction upon complaint, in addition to the payment of dower, the person would be punished with simple imprisonment which may extend to one year and/or a fine of five thousand rupees.

Justice Athar Minallah said that the provisions and the validity thereof were challenged through several petitions before the Federal Shariat Court. Section 6 of the Ordinance of 1961 was also examined. The Federal Shariat Court rendered an exhaustive judgment reported as "Allah Rakha and others v Federation of Pakistan and others", wherein the provisions of Section 6 of the Ordinance of 1961 were declared to be valid and intra vires.

He added that it was eloquently observed that it did not have the effect of declaring the subsequent marriage as illegal but has merely prescribed the conditions required to be fulfilled before doing so, failing which the non-observance thereof would expose the husband to the consequences explicitly described therein.

He also said that it was further observed that the spirit of the provisions was reformative and that it has prescribed a corrective measure for the prevention of injustice to the existing wife/wives.

The IHC Chief Justice mentioned that in the case titled "Syed Ali Nazwaz Gardezi v Lt Col Muhammad Yusuf" the apex Court has held that the Ordinance of 1961 only penalises the person who contracts another marriage in contravention of the provisions thereof by making him liable to imprisonment or a fine or both but does not invalidate the marriage itself.

He declared, "The provisions of section 6 have already been declared as intra vires by the Federal Shariat Court and the Supreme Court. Section 6 does not declare a subsequent marriage to be illegal but it merely prescribes the conditions required to be fulfilled before doing so. The non-observance of the said conditions exposes the husband to the consequences explicitly described therein i.e. upon conviction the husband can be sentenced to simple imprisonment which may extend to one year and/or fine."

He noted, "The petition is, therefore, without merit and it is accordingly dismissed. It is noted that the petitioner has made certain assertions in the memorandum of petition which raises questions regarding her bonafides to invoke the jurisdiction of this Court under Article 199 of the Constitution."

He added that the assertions made by the petitioner could also expose her to criminal proceedings.

He maintained that the petition is frivolous and, therefore, dismissed.

"A cost of Rs10,000 is imposed and the same is directed to be deposited with the Deputy Registrar (Judicial) of this Court, within one week from the date of receiving certified copy of this order."

Copyright Business Recorder, 2021