1. ' This writ petition filed under Article 199 of the Constitution of Islamia Republic of Pakistan raises an interesting and also a little difficult question of law relating to venue for trial of an offence under section 6 (5) (b) of Muslim Family Laws Ordinance, 1961. Islam permits polygamy. Subject to its prohibitive and restrictive provisions, a Muslim may have as many as four wives at a time. Muslim Family Laws Ordinance, 1961 does not profess to prohibit the permissible polygamy, but restricts its exercise for contracting a second marriage only with the permission of the Arbitration Council.
2. Marriage contracted without necessary permission from the Arbitration Council is not void, but is an offence liable to punishment for imprisonment, which may extend to one year or with fine, which may extend to five thousand rupees or with both. Further, in the event of a marriage contracted without the permission of Arbitration Council, entire amount of dower, whether prompt or deferred becomes immediately payable to the existing wife or wives, and is also recoverable as arrears of land revenue. Also section 2 (ii-a) of Dissolution of Muslim Marriages Act 1939, as amended, made it an additional ground for dissolution of marriage. It is seen from the above that contracting of a marriage in contravention of section 6 of Muslim Family Laws Ordinance, 1961, was not only an offence but it gave rise to certain civil consequences in favour of existing wife or wives, as the case may be. Section 6 of the above Ordinance runs as:- S.6. Polygamy.-- (1) No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance.
(2) An application for permission under subsection (1) shall be submitted to the Chairman in the prescribed manner, together with the prescribed fee and shall state the reasons for the proposed marriage, and whether the consent of existing wife or wives has been obtained thereto.
(3) On receipt of the application under subsection (2), the Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the poposed marriage is necessary and just, grant subject to such conditions, if any, as may be deemed fit, the permission applied for.
(4) In deciding the application, the Arbitration Council shall record its reasons for the decision and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision (to the Collector) concerned and his decision shall be final and shall not be called in question in any Court.
(5) Any man who contracts another marriage without the permission of the Arbitration Council shall:-
(a) Pay immediately the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and
(b) On conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both."
3. ' Like section 6 of the above Ordinance, its sections 5 and 7 made their contraventions punishable offences. Rule 21 of Muslim Family Laws Rules, 1961, as originally framed, provided that "no Court shall take cognizance of any offence under the Ordinance or these rules save on a complaint in writing by the Union Council stating the facts constituting the offence." Above Rule was substituted in Punjab on 26-11-1976 which in its substituted form, read as "21. No Court shall take cognizance of any offence under the Ordinance or these rules save on a complaint in writing by the aggrieved party, stating the facts constituting the offence." Though the Ordinance declared certain acts and omissions as punishable offences, but neither the Ordinance nor the Rules framed under it provided for a venue of the trial of the offences committed thereunder nor is there any other provisions in them to indicate about the jurisdiction of the Courts to try such offences. In the existing omission, the Court has to look to the provisions of Criminal P.C. For searching out the venue for trial of the offences and the jurisdiction of the Courts to hold trial in respect of them.
4. Section 5(2) of Criminal Procedure Code lays down that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions of the Cr.P.C, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The act of contracting another marriage in violation of the provisions con teamed is section 6 of the Ordinance is an offence under a Special Law and, thereore, in the absence of any provisions regulating the venue of its trial and providing for a separate Court or procedure for trial in respect of it, the procedure in the Criminal Procedure Code shall attract to the offence and its consequent trial. So the question for consideration would be as to which Court would be competent tp hold trial of the offence of taking another wife in contravention of section 6 of the Muslim Family Laws Ordinance, 1961; the Court under whose jurisdiction the aggrieved wife resides or the Court in whose territorial jurisdiction the second marriage was celebrated. Necessary constitutents of an offence under section 6(5) of the Ordinance are a previous marriage and an existing wife/wives, absence of a requisite permission from the Arbitration Council for taking additional wife and celebration of marriage in violation of section 6 of the Ordinance. All the above three are essential ingredients of the offence under section 6(5) of the Ordinance. As for the venue for its trial, this Court in the case of Mst. Sardar Begum v. Malik Muhammad Anwar and another (1982 PCr.LJ 1298 (Lahore) observed that "as regards the territorial jurisdiction, it is true that under section 177 of the Cr.P.C, an offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed, but a Court where part of the offence has been committed is also competent to take cognizance of an offence even though a part of the offence has been committed in the territorial jurisdiction of another Court. Under section 6(5) Of the Muslim Family Laws Ordinance, 1961, an offence is committed when a man contracts another marriage without the permission of the Arbitration Council. This means that contracting of a second marriage and the absence of permission of the Arbitration Council are two important ingredients of the offence. In the present case, the marriage was contracted in Ahmadpur East, District Bahawalpur, without the permission of the Arbitration Council in District Gujranwala. Under sections 179 and 180 of the Cr.P.C, the Magistrate both of Bahawalpur and Gujranwala Districts will have the jurisdiction to try these cases.
5. The leamed counsel appearing on behalf of the State has produced a photo copy of a judgment of Decca High Court in the case of Abu Sufian v. Noor Jahan Begum (1966) 18 DLR 230, in order to show that it was only the Court at Bahawalpur which has the jurisdiction and not the one at Gujranwala.
6. With utmost respect to the Hon'ble Judge, I am of the view that the provisions of sections 179 and 180 of the Cr.P.C, were not brought to the notice of Hon'ble Judge." In Shaukat Ali v. Kalsoom Akhtar and another (PLD 1991 Lahore 247) considering the same point about venue for trial of an offence under section 6(5) of the Ordinance, this Court took the view, that "all offences under the Pakistan Penal Code are to be investigated, inquired into and tried in accordance with the provisions of the Cr.P.C. Section 5(1) ibid clearly so provides, ln subsection (2), it is further laid down that all the offences under any other law shall be investigated, inquired into, tried or otherwise dealt with according to the provisions of the Code subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The offence of bigamy under section 6(5) of the Muslim Family Laws Ordinance is an offence under a Special Law, but neither in the Ordinance nor in the Rules framed thereunder any separate Court or procedure for trial is indicated. So in view of the provision of subsection (2) of section 5 of the Code, it is to be tried in accordance with the provisions of the Code. Section 177 ibid requires that every offence shall ordinarily be tried by a Court within the local limits of whose jurisdiction it was committed. The offence under section 6(5) of the Ordinance would thus be triable by the Illaqa Magistrate in whose jurisdiction it has allegedly been committed. Die relevant provisions of the Cr.P.C, which deal with the jurisdiction of the Courts to try the offences are contained in Chapter XV of the Code. Section 177 of the Code provides that every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. Section 179 of the Code says that when a person is an accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done, or such consequence has ensued. Succeeding section 180 of the Code provides that when an act is an offence by reason of its relation to any other act, which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of "the first mentioned offence may be inquired into or tried by a Court within the local limits of whose jurisdiction either act was done. In Amirchand and his wife Mussammat Permeshri v. Emperor (AIR 1924 Lahore 732), it was held that "the offence of bigamy and the abetment of bigamy is triable only in the District in which the second marriage or the abetment took place and not in the District in which the woman is reported to have been enticed away." In T.N. Venkataraman and others v. Pushkalammal (AIR (37) 1950 Madras 823) dealing with a case under Madras Hindu (Bigamy Prevention and Divorce) Act, 1949, the Court said that since section 4 of the Act did not provide for the venue of the trial of the offence committed thereunder nor is there any other provision in the Act which deals with the jurisdiction of the Courts to try offences committed under the Act, so the provisions of Criminal P.C. Are attracted and under section 177 of the Code, it is only that Court within whose jurisdiction, the offence of bigamy was committed that could try the accused charged with that offence and the residence of the offender does not confer jurisdiction upon a Court to try an offence that took place outside its jurisdiction. Similarly in Mst.
7. Ghulain Zohra v. The State and another (1969 PCr.LJ 67 (Karachi) and Mst Haseena alias Munn! And 3 others v. Muhammad Ismail and another (1980 PCr.LJ II8 (Karachi) relying on section 177 of Criminal P.C. It was held that it is only that Court within whose jurisdiction the offence of bigamy was committed, which could try the accused charged with that offence. There are other judgments also in support of the above view, but it would be unnecessary to cite them.
2. In the case under consideration, existing wife, Mst. Abida Sultan was married to Naseem Akhtar Durrani at Chah Sultan in Rawalpindi City on 3-2-1984. The husband also was resident of and belonged to Chah Sultan in Rawalpindi City. Rule 3 (a) of Family Laws Rules provided that an application for permission to contract another marriage under subsection (2) of section 6 of Muslim Family Laws Ordinance could be made to the Union Council of the Union or the Town wheie the existing wife was residing. Obviously, an application for contracting a second marriage could be made to the Union Coundl/Union Committee comprising the area where the existing wife was residing Le. Chah Sultan, Rawalpindi City. Allegation is that the petitioner did not obtain permission from the Arbitration Council of the area, and, contracted marriage with Mussarrat Hameed daughter of Hameed Ahmad, resident of Tret, in Tehsil Murree. Second marriage was solemnized by the petitioner on 10-8-1987. Therefore, though the final act of contracting a second marriage took place at Tret in Tehsil Murree, yet the two essential ingredients for constitutiong an offence under section 6(5) of the Ordinance Le. The residence of the existing wife and the location of Arbitration Council fell within the area of Tehsil Rawalpindi. Therefore, in view of clear rule of law laid down in the case of Sardar Begum by this Court with which I respectfully agree, the Court of a Magistrate at Rawalpindi as well as that at Murree both had jurisdiction to try the complaint filed by the respondent and an order passed by the trial Court at Rawalpindi summoning the petitioner to face the trial before it was not open to any serious exception. In this view, I would agree with the learned Judge below and endorse his decision and dismiss the writ petition in limine.
3. At the end, it may be necessary to notice that having regard to the clear object underlying legislation on Family Laws, to put the matter about the venue for trial of the offences created under the Family Laws Ordinance, 1961,and the Courts trying them beyond doubt, it may be worthwhile to make amendments either in the Ordinance or the Rules framed thereunder. Indian Legislature in enacting Code of Criminal Procedure, 1973, has added subsection (2) to section 182 to provide a convenient jurisdiction to the offended spouse. Under the old Code, the offence of bigamy was tried or inquired into only at the place where bigamous marriage was celebrated. Besides, section 198, Criminal Procedure Code made a complaint by the aggrieved spouse necessary for taking proceedings against the bigamist. This procedure put an impediment in the way of prosecuting the offender and enabled him to go to a distant place, marry there and come back to live at his original place and live with his or her second spouse in the same neighbourhood as the first. Since bigamy is conceived as an offence against the institution of marriage in a society, Indian legislature extended the venue of inquiry or trial of the offence to the place where the offender last resided with his or her lawfully married spouse. Amended subsection (2) of section 182 of Code of Criminal Procedure, 1973 runs as "(2) Any offence punishable under section 494 or section 49S of the Indian Penal Code (45 of 1860) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage or the wife by the first marriage has taken up permanent residence after the commission of the offence."
8. ' Amendment proposed on the above lines may prove beneficial to the aggrieved party and may also promote the object in view. With the above object in view, copy of the judgment may be sent to the Secretary, Ministry of Law, Government of the Punjab, to suggest and propose, if considered necessary, appropriate amendments to the law so as to put the matter relating to venue for trial of the offences under Family Laws Ordinance and the Court holding the trial beyond doubts and dispute. in limine