-Second marriage at Rawlapindi without prior permission of first wife by claiming unmarried-

 PLJ 2020 Cr.C. (Note) 109

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Muslim Family Laws Ordinance, 1961, S. 6(5)(b)--Pakistan Penal Code, (XLV of 1860), S. 420--Petitioner was contracted first marriage at AJK--Second marriage at Rawlapindi without prior permission of first wife by claiming unmarried--Territorial jurisdiction of concerned magistrate--Cognizance of matter--Challenge to--Petitioner-accused contracted second marriage at Rawalpindi and admittedly without prior permission of his first wife--Alleged offence was committed within the territory of Pakistan and therefore, the Court at Rawalpindi rightly took cognizance of the matter and issued process against the petitioner-accused--Needless to add that second marriage without permission of the first wife is punishable under the aforesaid penal provisions of the Muslim Family Laws Ordinance, 1961, with which the petitioner stands charged--Petition was dismissed. [Para 3] A

Mr. Makhdoom Niaz Inqlabi, Advocate for Petitioner.

Raja Shahid Mahmood Abbasi, Deputy Prosecutor General with Ms. Aisha Tasleem, Advocate for State.

Date of hearing: 11.3.2008.

PLJ 2020 Cr.C. (Note) 109
[Lahore High Court, Rawalpindi Bench]
Present: Kazim Ali Malik, J.
Syed MUJASSAM HUSSAIN SHAH--Petitioner
versus
Mst. AKHTAR SABIR and another--Respondents
Crl. Misc. 18-Q of 2007, decided on 11.3.2008.

Order

Syed Mujassam Hussain Shah, petitioner and Mst. Akhtar Sabir, respondent are admittedly Muslims. The petitioner contracted his first marriage with the respondent on 3.11.1995 at Mirpur, Azad Jamu and Kashmir and from this wed lock the respondent gave birth to one son and two daughters. On 15.1.2006 the petitioner contracted second marriage with Mst. Sobia Gillani at Rawalpindi without prior permission of his first wife claiming to be unmarried before the Nikah Khawan/Nikah Registrar. Mst. Akhtar Sabir, the first wife filed a complaint under Section 6(5)(b) of the Muslim Family Laws Ordinance, 1961 before the area Magistrate at Rawalpindi in whose territorial jurisdiction the petitioner had contracted second marriage. The learned trial Magistrate examined the complaint recorded her preliminary evidence and then summoned the petitioner to stand trial on the afore-said charge.

2. The petitioner-accused has sought quashment of proceedings of the complaint case on the ground that he was not liable for the charge as he contracted first marriage with the respondent-complainant at Mirpur Azad Jamu and Kashmir and that being resident of Azad Jamu and Kashmir he should not have been deemed to be a citizen of Pakistan. Reliance was placed on the case law laid down in Rehmat Ullah v. Mst. Shatnim Akhtar and another (1997 CLC Pesh. 16) and Mian Nazir Ahmad v. Abdur Rashid Qureshi (1986 CLC Azad J&K 1309).

3. I have gone through the case law cited by the learned counsel for the petitioner and would say that facts of the case in hand are altogether different from that of the precedent cases. In the case of Rehmat Ullah the wife had filed a suit for dissolution of marriage before the Court at Azad Jamu and Kashmir and had remained unsuccessful up to the august Supreme Court. Thereafter, she obtained a decree for dissolution of marriage from the Family Court at Mansehra (Pakistan) which was challenged before the Peshawar High Court which resolved the controversy with an observation that in the given circumstances the Family Court at Mansehra had no jurisdiction to entertain a Family-Court suit between the spouses, particularly when they already litigated their cause up to the Supreme Court. No such situation ever existed between the parties of the case in hand. They never approached any Court of Azad Jamu and Kashmir for resolution of their dispute. In the case of Mian Nazir Ahmad it was held that under Sections 2(6) and 46, C.P.C. a precept issued by a foreign Court would not be executable in the native country and appropriate remedy available to such decree holder would be to institute a suit on the basis of such foreign judgment and obtain decree from a Court of Azad Jamu and Kashmir against the judgment debtor. In the case in hand the petitioner-accused contracted second marriage at Rawalpindi and admittedly without prior permission of his first wife. The alleged offence was committed within the territory of Pakistan and therefore, the Court at Rawalpindi rightly took cognizance of the matter and issued process against the petitioner-accused. Needless to add that second marriage without permission of the first wife is punishable under the aforesaid penal provisions of the Muslim Family Laws Ordinance, 1961, with which the petitioner stands charged.

4. In the given circumstances, the petition in hand being without substance stands dismissed.

(M.M.R.)         Petition dismissed