IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT: Mr. Justice Dost Muhammad Khan
Mr. Justice Qazi Faez Isa
Mr. Justice Maqbool Baqar
Criminal Petition No. 1252 of 2016
(On appeal against the order dated
20.06.2016 passed by the Lahore High
Court, Multan Bench, Multan, in Crl. Rev.
No. 484/2016)
Ishtiaq Ahmad. Petitioner(s)
Versus
The State, etc. Respondent(s)
For the Petitioner(s): Mr. Aftab Alam Yasir, ASC
a/w petitioner in-person
Syed Rifaqat Hussain Shah, AOR
For the Respondent(s): N.R.
Date of hearing: February 17, 2017
JUDGMENT
Qazi Faez Isa, J: The petitioner seeks leave to appeal against his
conviction by the Magistrate, Taunsa Sharif which was upheld by
the Additional Sessions Judge, Taunsa Sharif, and the Multan
Bench of the Lahore High Court dismissed the petitioner’s revision
petition. The petitioner was convicted under section 6(5)(b) of the
Muslim Family Laws Ordinance, 1961 (“the Ordinance”) for
contracting another marriage without permission and was
sentenced to imprisonment for one month and to pay a fine of five
thousand rupees and in default of payment of fine to further
undergo simple imprisonment for twenty days.
2. The petitioner did not dispute that during the subsistence of
his marriage with Mst. Ruqia Hameed he had entered into a
marriage with Mst. Tehmeena. The petitioner took two stands, firstly, that under Muslim personal law which governed the parties,
“the petitioner has every right to accord with four marriages and
no limitation can be imposed”, and, secondly, that his first wife
had given him permission to contract a second marriage. The
learned counsel for the petitioner further contended that there was
no reason to seek permission for contracting a second marriage,
from the Arbitration Council under section 6(2) of the Ordinance,
since the term for which the councilors were elected had expired,
however, the local government elections were still not held,
therefore, there was no Chairman of the Arbitration Council nor
was there a Union Council which alone could submit a complaint
as per rule 21 of the rules made under the Muslim Family Laws
Ordinance, 1961 (“the Rules”). Reliance was also placed upon the
cases of Muhammad Yousaf v Chairman, Union Committee (1977
PCrLJ 107) and Ejaz Mahmood v Humaira (PLD 1983 Lahore 615).
3. The first issue raised by the petitioner is with regard to the
vires of section 6 of the Ordinance and whether permission of the
wife/wives and/or of the Arbitration Council stipulated therein
contravenes the injunctions of Islam. Before we proceed to
consider this issue it would be appropriate to reproduce section 6
of the Ordinance:
“6. Polygamy.
(1) 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.
(2) An application for permission under sub-section (1)
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 existing wife or wives has been obtained thereto.
(3) On receipt of application under sub-section (2) the
Chairman shall ask the applicant and his existing 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, to the collector 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 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 be punishable with
simple imprisonment which may extend to one year,
or with fine which may extend to five thousand
rupees, or with both.”
4. The aforesaid issue was considered in the case Allah Rakha v
Federation of Pakistan (PLD 2000 Federal Shariat Court 1); the
Federal Shariat Court held that the provisions of section 6 of the
Ordinance did not violate any of the injunctions of Islam (see
paragraphs 88 to 94, pages 56 & 57). The Federal Shariat Court
observed that the third verse of surah an-nisa (wherein reference is
made to polygamy) itself prescribes the precondition of adal
(justice):
“…the very Ayat which gives this permission also prescribes
a condition of “ عدل ” and the Holy Qur’an has laid emphasis
in the same verse on the gravity and hardship of the
condition which Allah Himself says is very difficult to be
fulfilled.
89. Now section 6 of the Ordinance as framed, in no
manner places any prohibition in having more than one
wife. It only requires that the condition of “ عدل ” prescribed
by Holy Qur’an itself should be satisfied by the male who
wants to have more than one wife. The provision for
constituting an Arbitration Council, therefore, cannot in
itself be said to be violative of Injunctions of Qur’an as only
a procedure has been prescribed how the Qura’nic Verse
will be observed in its totality with reference to the
condition of “ عدل ” placed in the Verse itself.” (page 56)
The Federal Shariat Court also considered the components of
a nikah (marriage in Islam), the rights and obligations of a
husband and wife, the love and affection between them and how
disputes could arise if the husband were to take another wife:
“…[nikah] is a social contract of very high status and
conjoins a couple and the spouses in a sacred association,
with mutual rights and obligations, to be performed in a
spirit of love and affection that should last life long, as
envisaged by Ayah No. 21 of Sura No. 30, Ayah No. 228 of
Sura Baqara and Ayah No. 19 of Sura-e-Nisa. Therefore,
anything, big or small, that may provide a cause for a
breach in mutual love and trust is viewed seriously by
Islamic Injunctions. In such situations the Holy Qur’an
enjoins upon all Muslims to take appropriate measures to
save this sacred union from disruption. Reference in this
connection may be made to Verse No. 35 of Sura Al-Nisa,
already reproduced hereinabove. Since one of the reasons
for such disputes may be intention of the husband to
contract subsequent marriage of his choice… .” (page 56-7)
5. In the case of Faheemuddin v Sabeeha Begum (PLD 1991
Supreme Court 1074) the second wife filed a complaint against her
husband who had concealed from her his earlier subsisting
marriage. The husband urged that the second wife had no locus
standi to file a complaint under section 6 of the Ordinance and
only an existing wife could do so as the said section intended to
protect existing wife/wives. This Court disagreed. The importance
of marriage, misrepresenting ones marital status, the unhappiness
that may result as a cause thereof, the concept of a harmonious
married life, the mandate of doing justice between wives and how
the confidence of a wife may be shattered by the deception
practiced upon her were considered (page 1079). It may also be
difficult, if not impossible, to sustain a relationship on a lie.
6. The Federal Shariat Court in the case of Allah Rakha (above)
referred to verse 21 of surah 30 ar-rum of the Holy Quran, in which verse Almighty Allah reveals that the love, tranquility and mercy
are concomitant to marriage:
“And among His Signs is this, that
He created for you mates from amongst yourselves,
That ye may dwell in tranquility with them, and
He has put love and mercy between your (hearts):
Verily, in that are Signs for those who reflect.”
Concealment by a husband of his previous marriage/s or
contracting another marriage with callous disregard of his wife
may disrupt the love, tranquility and mercy ordained by Allah
Almighty; “affection” is amongst the favours bestowed by the
Almighty for which we need to “give thanks” (verse 78 of surah 16
an-nahl). The magnitude of this affection is immeasurable; “He
hath put affection between their hearts: not if thou hadst spent all
that is in the earth, couldst thou have produced that affection, but
Allah hath done it” (verse 63 of surah 8 an-anfal). Words of
Almighty Allah constitute the verses of the Holy Quran and as
such are of immense importance to believers; every effort must be
made to adhere to them. Almighty Allah directs believers “to study”
the Quran and those that do “are the ones that believe therein”
(verse 121 of surah 2 al-baqarah). The Almighty states that to dwell
with one’s spouse in tranquility, love and mercy is amongst His
“Signs (ayah) for those who reflect (tafakkur)” (verse 21 of surah 30
ar-rum), and, “do not treat Allah’s Signs as a jest” (verse 231 of
surah 2 al-baqarah).
7. Husbands are also required to “deal justly” with their wives
and to, “live with them [wives] on a footing of kindness and equity”
(verses 3 and 19 respectively of surah 4 an-nisa). If a husband,
without his wife’s permission or in secret, takes another wife can
his dealing with the first wife be categorized just or is he maintaining the footing of kindness and equity? After issuing the
warning that wives must be dealt justly Almighty Allah wants, “to
prevent you [husbands] from doing injustice” by prescribing that in
such cases “then only one [wife]” (verse 3 of surah 4 an-nisa). Since
section 6 of the Ordinance seeks to prevent injustice being done,
then it conforms to Islamic injunctions.
8. We now proceed to consider the merits of this particular
case. The learned counsel’s contention that, at the relevant time
there was no Chairman of the Arbitration Council since local
government elections had not been held, is not sustainable
because in the absence of elected representatives the
Administrator or another designated officer acts as the Chairman.
As regards the contention that, the court could not take cognizance
of the offence since the Union Council had not itself complained to
the court is not correct because in the Province of Punjab rule 21
of the Rules was substituted (in 1976) and the new substituted
rule requires the submission of complaint by an “aggrieved party”.
The 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 does not stipulate
whether the complaint is 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 this
regard.
9. The petitioner was required by law to submit an application
to the Chairman and seek permission to enter into the proposed 0marriage. In such an application he was required to, “state the
reasons for the proposed marriage and whether the consent of
existing wife or wives had been obtained thereto”. The Chairman
on receipt of such an application is to call upon the petitioner and
his wife to nominate their respective representatives, and the
Arbitration Council so constituted, after satisfying itself that the
proposed marriage was “necessary and just” may grant permission
with or without any conditions. In considering whether the
proposed marriage is necessary and just the Arbitration Council
considers the following, amongst other, grounds: “sterility, physical
infirmity, physical unfitness for the conjugal relation, willful
avoidance of a decree for restitution of conjugal rights, or insanity
on the part of an existing wife” (rule 14 of the Rules).
10. Admittedly, the petitioner did not submit an application
seeking permission to enter into another marriage, as required by
sub-section (2) of section 6 of the Ordinance read with rule 6(2) of
the Rules, therefore, the Arbitration Council was not constituted,
let alone one that could have granted him the requisite permission.
The petitioner disregarded the law and must suffer its
consequences. It was contended that the first wife had given her
consent, but this bare statement is contradicted by the fact that
the wife had herself submitted a complaint against her husband,
testified in court and was subjected to cross-examination, but
maintained her stance. The petitioner did not testify on oath under
section 340(2) of the Code of Criminal Procedure (“CrPC”) to aver
that his wife gave her consent for him to contract another
marriage. The learned counsel sought to rely on the petitioner’s statement under section 342 of CrPC, but such statement is not in
itself sufficient to establish that permission had been granted.
11. The petitioner concedes that he was already married and he
also had a child from his first wife when he contracted a second
marriage without obtaining permission from the Arbitration
Council. The ingredients of the offence under section 6(5)(b) of the
Ordinance thus stood established. The petitioner was lucky as the
trial court had treated him very leniently in the matter of
punishment by sentencing him to imprisonment for only one
month as he could have been imprisoned for up to a year.
Consequently, this petition for leave to appeal is dismissed and
leave is refused.
Judge
Judge
Judge
ISLAMABAD
February 21, 2016
Approved for Reporting
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