This petition under section 561-A, Cr. P. C. Seeks the quash--merit of proceedings under section 6 of the Muslim Family Laws Ordinance, 1961 (hereinafter called the Ordinance) pending in the Court of Resident Magistrate, Kamalia, District Lyallpur.
2. The brief facts of the prosecution case are that the petitioner and respondent No. 2 were married about 6-7 years ago and from the wedlock they have to children. However, the petitioner resolved to take another wife and in order to secure the necessary permission made an application to Union Council No. 1 of Chak No. 129/9-L, Tebsil and District Sahiwal. The applica--tion in question was made on 1-7-1970 and the requisite permis--sion granted to the petitioner on 20-7-1970, where after he married one list. Lalan on 24-8-1970.
3. Being aggrieved of the said marriage, respondent No. 2 filed an application before the Chairman, Union Council No. 157 of Cbak No. 718, Tehsil Toba Tek Singh, District Lyallpur, complaining that during the subsistence of their marriage the petitioner took another wife in violation of the requirements of the Ordinance. It is alleged that after some inquiry into these allegations the said Union Council filed a complaint against the petitioner in the Court of Ilaqa Magistrate, Kamalia, on 5-9-70, complaining that the petitioner had violated the provisions of section 6 of the Ordinance.
And, therefore, be dealt with according, to law.
The grievance is that the Union Council at Toba Tek Singh had no locus standi to file the said complaint against the petitioner and consequently the learned Magistrate at Kamalia had no jurisdiction to proceed in the matter.
4. The learned counsel for the parties are not in agreement in regard to certain facts which are relevant for the disposal of this application. The learned counsel for the petitioner says that when the petitioner sought the permission of Union Council at Sahiwal, to take a second wife, respondent No. 2 was residing with him, had consented to his second marriage, had received the notice of the proceedings from the Chairman, Union Council, but had chosen not to appear in the proceedings.
As against this the learned counsel .For the State argued that when the petitioner applied to the Union Council at Sahiwal, respondent No. 2 was living with her parents at Kamalia, that she neither received the notice of the proceedings nor consented to the second marriage of the petitioner. In fact, when she came to know that the petitioner bad moved the Union Council at Sahiwal for permission to take second wife she promptly made an application to the Chairman, Union Council at Kamalia pointing out that she being the resident of Union Council No. 157 of Chak No. 718, Tehsil Toba Tek Singh, District Lyallpur, the petitioner could not seek the necessary permission from the Union Council at Sahiwal.
5. From these assertions it is clear that the parties are dis--puting the fact whether respondent No. 2 was residing with the petitioner at Sahiwal, when he sought the permission of the Union Council for taking second wife, or was residing with her parents at Kamalia, District Lyallpur. A lot depends upon the determination of this question. If respondent No. 2 was able to establish her version then the proceedings pending in the Court of Magistrate at Kamalia, against the petitioner, would be competent, because in that event he would be guilty of violation of rules framed under the Muslim Family Laws Ordinance, 1961 (herein-- after called the rules). Since the determination of this question still awaits the decision of the Court below, the petition on this, ground itself is liable to be dismissed.
6. The learned counsel for the petitioner, however, argued that assuming that the version of respondent No. 2 was correct, even then the Magistrate at Kamalia had no jurisdiction to proceed against him. The precise contention is that since the petitioner had contracted second marriage at Sahiwal the Magistrate at Kamalia would have no jurisdiction in the matter. In support of this contention the learned counsel relied upon a Division Bench Judgment from the Dacca High Court in the case of Abu Sufian v. Nurjahan Begum (18 D L R 230).
This judgment no doubt supports the contention of the learned counsel. But the learned counsel admits before me that the decision of their Lordships wag mainly grounded on the provisions of the Criminal Procedure Code; their attention not having been invited to section 3 of the Ordinance which reads :- "3 (1). The provisions of this Ordinance `shall have effect notwithstanding any law, custom or usage and the registration of Muslim marriages shall take place only in accordance with those provisions.
(2) For the removal of doubt, it is hereby declared that the provisions of the Arbitration Act, 1940 (X of 1940) the Code of Civil Procedure, 1908 (Act V of 1908) and any other law regulating the Procedure of Courts, shall not apply to any Arbitration Council."
The language of section 3, which is unambiguous, exclude the application of Criminal Procedure Code to the proceedings under the Ordinance and considering that this section was not even adverted to in the Dacca case I do not see how does it help the learned counsel for the petitioner.
7. The learned counsel for the petitioner, however, argued that section 3 of the Ordinance overrides only those laws which might come in conflict with those provisions of the Ordinance which relate to the registration of Muslim marriages. The conten--tion is not only misconceived but if accepted would render the whole Ordinance ineffective. In support of this conclusion reference may be made to sections 4 and 6 of the Ordinance by which the Muslim Law of Marriages and inheritance has been revolutioned. According to section 4, if the son or daughter of the propositus dies, before the opening of the succession, the children of such son or daughter, if any, living at the the the succession opens, shall receive a share equivalent to the share which their father or mother, if alive, would have received. It is common knowledge that the provisions of this section are said to be according to the common belief of Muslims, in conflict with the injunctions of Holy Quran on the subject of inheritance. Therefore, if the contention of the learned counsel was accepted, then the law of inheritance, as prescribed by the Quranic injunctions, would hold the field and in the process section 4 of the Ordinance would become redundant. Surely no such inter pretation is permissible which is bound to defeat the very object of the Ordinance for which it was enacted.
8. So far as the facts of the case are concerned it is admitted` that the law in regard to taking a second wife by a' Muslim is contained in section 6 of the Ordinance. According to this section no man, during the subsistence of his existing marriage, shall, except with the previous permission in writing of the Arbit--ration Council, contract another marriage, nor shall any such marriage, if contracted without such permission, be registered under the Ordinance. The section also provides for the constitu--tion of an Arbitration Council, in which the existing wife has the right to be represented by her nominee. It further provides that in the case of any contravention of the requirements of these sections the accused would be liable, among others; to be proceeded against and if convicted would be liable to a sentence of one year's simple imprisonment or with fine which may extend to Rs. 5,000 or both.
In order to implement the provisions of the Ordinance statutory rules have been framed thereunder, known as West Pakistan Rules under the Muslim Family Laws Ordinance, 1961.
Rule 3, which appears under the heading `Arbitration Council' may be reproduced : --- "3. The Union Council which shall have jurisdiction in the matter for the purposes of clause (d) of section 2 shall be as follows, namely :-
(a) 1n the case of an application for permission to contract another marriage under sub-clause (2) of section 6, it shall be the Union Council of the Union or Town where the existing wife of the applicant, or where he has more wives than one, the wife with whom the applicant was married last, is residing at the the of his making the application.
9. It would be seen that for the purpose of taking second wife, the petitioner was obliged to seek the permission of Union Council No. 157 of Chak No. 718, District Lyallpur, where respondent No. 2 claims to have been residing. The fact that according to the prosecution he did not do so and instead took a second wife in pursuance of the permission of the Union Council at Sahiwal, would prima facie bring him within the mischief of subsection (5) of section 6 of the Ordinance and consequently the complaint filed against him by the Union Council of District Lyallpur in the Court of the Magistrate at Kamalia would be competent.
10. In view of this discussion there is no force in this petition which is dismissed.