PLJ 2023 Cr.C. 656
[Lahore High Court, Multan Bench]
Present: Ali Baqar Najafi, J.
versus
STATE etc.--Respondents
Crl. Rev. No. 6973 of 2023, decided on 4.4.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 435/439--Muslim Family Laws Ordinance, 1961 (VIII of 1961),
S. 6(5)(b)--Criminal revision--Polygamy--Second marriage permission of first wife--Suit for recovery of dowry articles--Court has gone through, evidence produced before trial court and has observed that in absence of a written permission for second marriage by Respondent No. 2 he was punished for one year--However, while determining culpability of petitioner, conduct of Respondent No. 2 will also be relevant--Had she filed private complaint immediately after contracting second marriage by petitioner, she would have been at a different footing--The court can understand why she had preferred not to file a case against her husband at relevant time but she should have also seen consequences of not exercising her legal right by accepting second marriage of her husband--By Single Bench of this court that contracting of second marriage without permission of Arbitration Council is a crime and must be punished--In present case, keeping in view acquiescence of Respondent No. 2 and very fact that no written permission was granted by Arbitration Council to petitioner to contract second marriage, High court is of view that sentence undergone by petitioner so far is sufficient to meet ends of justice--Obviously, case of petitioner was not dealt with by new amendment since complaint was filed in year 2021 i.e. after amendment of 2015.
[P. 659] A, C & D
2010 PCr.LJ 950.
Polygamy--
----Polygamy has not been declared “Haraam” in Islamic Shariah but has been regulated by law of land which has not been declared un-Islamic so far--Of course, contracting second marriage is not commanded but may be permissible under certain conditions--Infertility, sterility, physical infirmity, physical unfitness for conjugal relations, willful avoidance of a decree of conjugal rights and insanity on part of existing wife may contribute as factor towards permission for second marriage. [P. 659] B
2011 YLR 1595.
Ch. Zulfiqar Ali Moazzam, Advocate for Petitioner.
Mr. Ijaz Ahmad Pannun, Deputy District Public Prosecutor for State.
Mr. Hassan Adnan, Advocate for Respondent No. 2.
Date of hearing: 4.4.2023.
Order
Through this criminal revision under Section 435/439 Cr.P.C., the order dated 22.01.2022 passed by learned Senior Civil Judge (Family Division) Kasur and the order dated 11.01.2023 passed by learned Additional Sessions Judge, Kasur have been challenged whereby the complaint filed by Respondent No. 2 was allowed and the petitioner was convicted under Section 6(5)(b) of Muslim Family Laws Ordinance, 1961 and sentenced to 06 months SI with fine of Rs. 5 lacs and in default whereof was to further undergo SI for a period of 30 days which sentence was modified by the learned appellate court in appeal filed by the petitioner by extending the period of imprisonment to 01 year but reduced the fine to Rs. 5000/-.
2. Brief facts giving rise to the filing of this criminal revision are that the petitioner got married with Respondent No. 2 on 21.06.1998 in lieu of dower of gold ornaments weighing 05 tolas or
Rs. 40,00,000/- alternate which is unpaid. After the marriage, one daughter namely Hamna Rafiq was born who survived whereas other 03 children unfortunately died. According to the Respondent No. 2, the petitioner soleminized second marriage with one Azra Bibi on 10.09.2007 without her permission but she continued to live with her husband as he did not divorce her. Meanwhile, a suit for recovery of dowry articles and maintenance allowance was filed by her and also filed a private complaint under Section 6(5) of Muslim Family Laws Ordinance, 1961 on 11.01.2021 against the petitioner and one Qari Muhammad Aslam Saqib, the Nikahkhawan on the ground that petitioner committed polygamy without her permission. The cursory statement of Respondent No. 2. was recorded who categorically stated that in the year 2007 the petitioner contracted second marriage with one Azra Bibi without her permission and that 14 years ago she was turned out from his house but during her stay, the petitioner contracted second marriage. She also produced Muhammad Sharif, her real brother. She has produced her own nikahnama as Mark-A whereas nikahnama of Azra Bibi as Mark-B. In the statement under section 342 Cr.P.C. the petitioner has admitted that he contracted marriage but with the permission of his first wife,
3. The above discussion has brought this court to the following facts with consensus of the parties:--
(i) The petitioner contracted second marriage during subsistence of marriage with Maryam Bibi/Respondent No. 2.
(ii) The second wife Azra Bibi remained with the petitioner and until filing of the private complaint she continued to live with the petitioner.
(iii) Respondent No. 2 did not raise any objection on second marriage of the petitioner until the filing of the private complaint by her after the passage of a period of more than 14 years on 11.01.2021.
(iv) The petitioner has not been able to produce written permission issued by the Arbitration Council and now he has claimed that Respondent No. 2 has given the permission.
(v) The conduct of Respondent No. 2 demonstrates that she permitted the second marriage to sustain and continue with her implied permission.
4. Keeping in view the above facts, this court has gone through, the evidence produced before the trial court and has observed that in the absence of a written permission for second marriage by the Respondent No. 2 he was punished for one year. However, while determining the culpability of the petitioner, the conduct of Respondent No. 2 will also be relevant. Had she filed the private complaint immediately after contracting the second marriage by the petitioner, she would have been at a different footing. The court can understand why she had preferred not to file a case against her husband at the relevant time but she should have also seen the consequences of not exercising her legal right by accepting the second marriage of her husband.
5. Polygamy has not been declared “Haraam” in the Islamic Shariah but has been regulated by the law of the land which has not been declared un-Islamic so far. Of course, contracting second marriage is not commanded but may be permissible under certain conditions. Infertility, sterility, physical infirmity, physical unfitness for conjugal relations, willful avoidance of a decree of conjugal rights and insanity on the part of the existing wife may contribute as factor towards the permission for second marriage. It is not denied that Respondent No. 2 conceived three times but her new born babies died and only one daughter could survive luckily. In the judgment titled “Raja Muhammad Azram vs. Mst. Jamila Banaras and another” reported as 2011 YLR 1595, it has been observed by the Single Bench of this court that contracting of second marriage without permission of the Arbitration Council is a crime and must be punished. Likewise, in case titled “Shamim Mai vs. Allah Ditta and others” reported as 2010 P.Cr.L.J. 950, since there was a permission by Arbitration Council, therefore, complaint was dismissed.
6. In the present case, keeping in view the acquiescence of Respondent No. 2 and the very fact that no written permission was granted by the Arbitration Council to the petitioner to contract second marriage, this court is of the view that the sentence undergone by the petitioner so far is sufficient to meet the ends of justice. Obviously, the case of the petitioner was not dealt with by the new amendment since
the complaint was filed in the year 2021 i.e. after the amendment of 2015. The punishment may extend to one year, therefore, while dismissing this criminal revision, the sentence already undergone by the petitioner is considered sufficient. He be released forthwith if not required in any other case.
(A.A.K.) Revision dismissed
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