' Dr. Nargas Rehana respondent/complainant was married to Major (Retd.) Khalid Iqbal, the brother of Basharat lqbal petitioner, at Jauharabad on 9-3-1974. During the subsistence of the marriage the Major remarried under a registered Nikah at Hyderabad (Sindh) on 19-3-1987. Feeling aggrieved, the first wife (the respondent/complainant) filed a complaint under section 6(5) of the Muslims Family Laws Ordinance, 1961 read with Rule 21 of the Rules framed under section 11 ibid in the Court of Illaqa Magistrate at Lahore. The Magistrate has taken cognizance of the offence. The proceedigns in this regard pending in the Court of Illaqa Magistrate are desired to be quashed. So, the present petition.
2. Reliance of the learned counsel for the petitioner is upon the provisions of section 177 of Criminal Procedure Code which came up for consideration before their Lordships of the Dacca High Court in Abu Safian v. The State 18 D L R Dacca 230. Learned counsel for the respondent/ complainant referred to section 3 of the Muslim Family Laws Ordinance, Rule 3 of the Rules framed under the Ordinance and Nazabat v. The State and another 1971 P Cr. L J 148 and argued that special procedure having been prescribed for obtaining permission of the Arbitration Council for second marriage which (Abritration Council) was to be constituted by the Chairman of the Union Council/Committee in which the first wife was residing and she admittedly being a resident of Union Committee at Lahore, the Illaqa Magistrate at Lahore, had the jurisdiction.
3. Section 3 of the Ordinance lays down that the provisions of the Ordinance shall have effect notwithstanding any law, custom or usage and for removal of doubt it has been specifically declared that the provisions of the Code of Civil Procedure and any other law regulating the procedure of Civil Courts (which would include the Code of Criminal Procedure regulating the procedure of Criminal Courts) shall not apply to an Arbitration Council. Section 6 of the Ordinance deals with polygamy and provides that no man during the subsistance of an existing marriage shall contract another marriage except with the previous permission in writing of the Arbitration Council. An application for permission is to be submitted to the Chairman in the prescribed manner. Subsection (5) of section 6 is the penal provision, providing for punishment, when another marriage is contracted without the permission of the Arbitration Council. Section 2 of the Ordinance defines Arbitration Council as a body consisting of the Chairman and a representative of each of the parties to a matter to be dealt with under the Ordinance. Chairman is defined as the Chairman of the Union Council or a person appointed by the Federal Government in the cantonment areas or by the Provincial Government in other areas or by an Officer authorised in that behalf by any such Government to discharge the functions of the Chairman under the Ordinance. According to clause (d) of section 2 Union Council means a Union Council or the Union Committee constituted under the Basic Democracies Order, 1959 and having jurisdiction in the matter as prescribed. Rule 3 of the Rules framed under the Ordinance prescribes the jurisdiction of the Union Council/Committee in respect of the matters for the purpose of clause (d) of section 2 referred to above. According to it, in the case of an application for permission to contract another marriage under subsection (2) of section 6 of the Ordinance, it shall be the Union Council/Committee where the existing wife of the applicant was residing. Dr. Nargas Rehana was admittedly residing at Lahore, so keeping in view of the above provisions of the Ordinance and Rule framed thereunder and the principle laid down in Nazabat's case, the Illaqa Magistrate at Lahore, has the jurisdiction in the matter. The argument advanced by the learned counsel for the respondent/complainant is upheld. It seems that the provisions of section 3 of the Ordinance and the Rules framed under section 11 thereof had not been brought to the notice of their Lordships of the Dacca High Court while dealing with Abu Safian's case.
4. There is another aspect of the case. In the case of Abu Safian the provisions of section 177 of the Code of Criminal Procedure were only considered and brought under discussion but the position is made more clear when we consider section 179 ibid as well. It (section 179) lays down that when a person is accused of the commission of any offence by reason of anything which has been done, and of consequence which has ensued, such offence may be enquired into or tried by a Court within the local limits of whose jurisdiction any such consequence has ensued. Illustrations (b) and
(c) appended to the section are very much appropriate in the facts of the present case. The offence alleged against the Major is of second marriage which was solemnized at Hyderabad, but its consequence has ensued at Lahore as well where the first wife is residing. In view of the matter as well the Court at Lahore certainly has the jurisdiction.
5. The upshot is that the petition being without any substance is dismissed.