The Islamabad High Court (IHC) on Monday made it mandatory for all men, desiring a second marriage, to get the approval from arbitration councils.
In a 17-page judgment, IHC Chief Justice Atar Minallah said that getting permission from the first wife would not be enough for contracting a second marriage.
“Getting the approval from the Arbitration Council will be mandatory under Muslim Family Laws Ordinance 1962,” he said.
In his remarks, Justice Minallah said that any man wishing to marry a second wife would file an application with the council chairperson. “If the Arbitration Council denies the approval, the person will not be allowed to marry a second wife,” he said.
The judgment was issued on the petition filed by Dilshad Bibi, through council Ali Hussain Bhatti.
In accordance with the said ordinance, the judgment said: “No man shall contract another marriage except with the previous permission in writing of the Arbitration Council,” adding that an application seeking permission shall be submitted to the chairperson 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.
It said that the sub section-III of the ordinance empowers the chairperson to grant permission if satisfied that the proposed marriage is necessary and just.
The judgment further stated that clause (b) of this law 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.
The judgment says that Liaqat Ali Meer, spouse of the petitioner Dilshad, entered into a marriage contract on May 15, 2011 which was duly registered in Islamabad under the Muslim Family Laws Ordinance. For some time the couple lived in Islamabad and later moved to Muzaffarabad, Azad Jammu and Kashmir. Due to matrimonial differences, Dilshad returned to Islamabad in January 2013.
The judgment says that when the petitioner became suspicious that the respondent contracted a second marriage without her consent in violation of law, she approached the court under the prescribed laws and the plea referred to arbitration council for its views and after all the learned Magistrate in May 2014, framed the charge to which the respondent did not plead guilty.
The learned magistrate, after recording of evidence and affording an opportunity of hearing to the parties, convicted the respondent under sub section (5) of section 6 of the Ordinance of 1961 and sentenced him to undergo simple imprisonment for a term of one month and in addition imposed a fine amounting to Rs 5,000/- and in the event of default, to undergo a further period of simple imprisonment of fifteen days.
The respondent preferred an appeal which was dismissed by the learned appellate court. The learned Additional Sessions Judge, Islamabad (West) allowed the appeal on the sole ground that since the respondent was a resident of Azad Jammu and Kashmir, therefore, the provisions of the Ordinance of 1961 were not applicable or attracted in his case. The petitioner has, therefore, challenged judgment in May 2017 in the IHC as instant plea.
The counsel for the petitioner has contended that the learned appellate court has misconstrued the provisions of the Ordinance of 1961; no objection was taken by or on behalf of the respondent regarding the jurisdiction of the learned trial court; the respondent holds a National Identity Card issued by National Database and Registration Authority (NADRA) and, therefore, he is a citizen of Pakistan and thus covered under sub section (2) of section 1 of the Ordinance of 1961. In response, the council for respondent (Liaqat Ali Meer), argued that he was not a citizen of Pakistan and, therefore, sub section (2) of section 1 is not attracted in his case. He justified that holding NIC by NADRA is not a conclusive test for declaring or treating the respondent as a citizen of Pakistan, adding that therefore, interference is not required while exercising revisionary powers.
