Athar Minallah, C.J. Through this petition, the petitioner namely, Zill-e-Huma Farooq has assailed the vires of section 6 of the Muslim Family Laws Ordinance, 1961 (hereinafter referred to as the 'Ordinance of 1961'). The petitioner asserts that she is prevented from entering into a marriage contract with respondent no.2 because his other two wives i.e. respondents no.3 and 4 are refusing to give their consent.
2. The learned counsel for the petitioner has been heard at length. He has mainly argued that section 6 of the Ordinance of 1961 is in conflict with the injunctions of Islam and Articles 2A and 35 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the 'Constitution').
3. The learned counsel has been heard and the record has been perused with his able assistance.
4. The Ordinance of 1961 was promulgated and notified in the official gazette on 02-03-1961 with the object of giving effect to the recommendations of the Commission on Marriage and Family Laws. Section 6 deals with polygamy . Sub section (1) of section 6 is couched in negative language and provide s that during the subsistence of an existing marriage, no man shall contract another marriage except with the previous permission in writing of the Arbitration Council. Sub section (2) provides that an application seeking permission shall be submitted to the Chairman in the prescribed manner toget her 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. Sub section (3) empowers the Chairman to grant permission if satisfied that the proposed marriage is necessary and just. Sub section (4) further describes the manner in which the application has to be dealt with by the Arbitration Council. Sub section (5) provides the consequences in the event of contracting another marriage without the permission of the Arbitration Council. Clause (a) provides that a person who has contracted a marriage without the permission shall immediately pay the entire amount of dower, whether prompt or deferred, which may be due to the existing wife or wives, and if not so paid, it shall be recoverable as arrears of land revenue. Clause (b) further 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. In exercise of powers conferred under section 11 of the Ordinance of 1961, the competent authority has made the Rules of 1961. Rule 3 describes the jurisdiction of a Union Council. Clause (a) of Rule 3 describes the manner in which an application seeking permission to contract another marriage has to be dealt with. Rule 14 elaborates the guidelines for the purposes of determination required to be made by the Arbitration Council while considering what is just and necessary for an order to give permission for contracting a second marriage and in this regard some factors have also been described. Rule 15 is in respect of requir ements for making an application under sub section (1) of the Ordinance of 1961. Rule 21 is couched in negative language and provides that no Court shall take cognizance of any offence under the Ordinance of 1961 or the Rules of 1961 save on a complaint in writing by the Union Council stating the facts constituting the of fence.
5. The above provisions and the validity thereof were challenged through several petitions before the learned Federal Shariat Court. Section 6 of the Ordinance of 1961 was also examined. The learned Federal Shariat Court rendered an exhaustive judgment reported as 'Allah Rakha and others v. Federation of Pakistan and others'
[PLD 2000 FSC 1], wherein the provisions of section 6 of the Ordinance of 1961 were declared to be valid and intra vires. It was eloquently observed that it did not have the effect of declaring the subsequent marriage as illegal but has merely prescribed the conditions required to be fulfilled before doing so, failing which the non-observance thereof would expose the husband to the consequences explicitly described therein. It was further observed that the spirit of the provisions was reformative and that it has prescribed a corrective measure for the prevention of injustice to the existing wife/wives. In the case titled 'Syed Ali Nazwaz Gardezi v. Lt. Col. Muhammad Yusuf '
[PLD 1963 SC 51] the apex Court has held that the Ordinance of 1961 only penalises the person who contracts another marriage in contravention of the provisions thereof by making him liable to imprisonment or a fine or both but does not invalidate the marriage itself.
6. In the light of the above discussion, the provisions of section 6 have already been declared as intra vires by the learned Federal Shariat Court and the august Supreme Court. Section 6 does not declare a subsequent marriage to be illegal but it merely prescribes the conditions required to be fulfilled before doing so. The non observance of the said conditions exposes the husband to the consequences explicitly described therein i.e. upon conviction the husband can be sentenced to simple imprisonment which may extend to one year and / or fine. The petition is, therefore, without merit and it is accordingly dismissed. It is noted that the petitioner has made certain assertions in the memorandum of petition which raises questions regarding her bonafides to invoke the jurisdiction of this Court under Article 199 of the Constitution. The assertions made by the petitioner could also expose her to criminal proceedings. The petition is frivolous and, therefore, dismissed. A cost of Rs.10,000/- (rupees ten thousand only) is imposed and the same is directed to be deposited with the Deputy Registrar (Judicial) of this Court within one week from the date of receiving certified copy of this order. The amount of costs shall be utilized for payment of expenses/fee to learned counsels appointed by this Court in the pending Jail Appeals.