Approval of Arbitration Council compulsory for second marriage: IHC

Updated June 25, 2019

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Justice Minallah upholds sentence awarded to man who married again without first wife’s consent. — Dawn/File
Justice Minallah upholds sentence awarded to man who married again without first wife’s consent. — Dawn/File

ISLAMABAD: Contrary to the popular belief that the consent of first wife is the only requirement for second marriage, Islamabad High Court (IHC) has declared that approval of Arbitration Council is even more compulsory for tying the knot with second wife.

IHC Justice Athar Minallah, while accepting an appeal filed by Dilshad Bibi, upheld the sentence awarded to her husband by the trial court for contracting second marriage without the prior approval of the Arbitration Council as well as of the petitioner woman.

Petitioner Dilshad Bibi and her husband Muzaffar Mir entered into a marriage contract on May 15, 2011, which was duly registered in Islamabad under the Muslim Family Laws Ordinance, 1961.

For some time the couple lived in Islamabad and later moved to Muzaffarabad, Azad Jammu and Kashmir. Due to differences, the petitioner returned to Islamabad on January 8, 2013.

Justice Minallah upholds sentence awarded to man who married again without first wife’s consent

Mir contracted a second marriage without the consent of the petitioner, which led to filing of a complaint by the latter seeking initiation of proceedings under sub section (5) of section 6 of the Ordinance of 1961.

The complaint was considered by the Arbitration Council and the latter referred to the competent forum contemplated under Rule 21 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961.

It was alleged by the petitioner that the respondent Mir had contracted another marriage without her permission, which is required under sub section (1) of section 6 of the Ordinance of 1961.

The magistrate, vide order dated April 15, 2014, framed the charge to which the respondent did not plead guilty. Three witnesses entered the witness box on behalf of the petitioner.

The magistrate, after recording evidence and affording an opportunity of hearing to the parties, sentenced Mir to imprisonment for a term of one month and imposed a fine of Rs5,000.

Mir filed an appeal which was dismissed by the learned appellate court vide judgement, dated June 16, 2016.

He then filed a review before IHC and the case was remanded to the additional district and sessions judge of Islamabad who set aside the conviction on the sole ground that since Mir was a resident of Azad Kashmir, therefore, the provisions of the Ordinance of 1961 were not applicable in his case.

Dilshad Bibi on the other hand challenged the order before IHC.

IHC Justice Minallah, after hearing the arguments and perusing the relevant record as well as the legal provisions, observed that “a plain reading of the Ordinance of 1961 read with the Rules of 1961 unambiguously shows that it extends to the whole of Pakistan and applies to all Muslim citizens of Pakistan”.

The court ruled that “the factors required to be taken into consideration by the Arbitration Council in granting permission for contracting a subsequent marriage have been prescribed in sub sections (2), (3) and (4) of section 6 of the Ordinance of 1961.

The Arbitration Council cannot act mechanically while granting permission because the statute has declared that before doing so it has to be satisfied that such permission would be just and necessary. A husband who contracts another marriage during the subsistence of an earlier one in contravention of the provisions of the Ordinance of 1961 definitely exposes himself to the risk of being imprisoned or fined or to both.

The court order read: “In the facts and circumstances of the case in hand, it is an admitted position that the respondent, regardless of his place of residence, holds a National Identity Card issued to him by the authority under the Ordinance of 2000. As long as the National Identity Card remains valid and subsisting, the respondent cannot claim to be a person who is not a citizen of Pakistan. The marriage was contracted between the parties and duly registered in Islamabad and, therefore, to the extent of the petitioner the cause of action in the context of section 6 of the Ordinance of 1961 has arisen in Islamabad.

The court, however, remanded the case back to the trial court for a rehearing with the direction for an early decision.

Published in Dawn, June 25th, 2019