LHC says only family courts could try ‘second marriage offence’

LAHORE: The Lahore High Court (LHC) has ruled that only family courts have got exclusive jurisdiction to take cognisance of offences pertaining to solemnising second marriage without the permission of the first wife.

In its five-page long judgment, Justice Muhammad Amjad Rafiq voided three months imprisonment and Rs 0.5million fine on Muzaffar Nawaz by a magisterial court, ruling that offence section 6 (5)(b) of the Muslim Family Laws Ordinance, 1961 was tried by a magistrate, who had no jurisdiction in the matter. Therefore, the entire proceedings including the trial would stand vitiated, he added.

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Ishrat Rasool, the first wife of Muzaffar Nawaz, had filed a private complaint against her husband. The petitioner contended that she solemnised marriage with Muzaffar on September 2, 2013. She said that during the subsistence of their marriage, her husband solemnised another marriage with Sitara Jabeen on April 15, 2015, without her permission.

The complaint was entrusted to a magistrate at Rahim Yar Khan, who through, a judgment issued on May 17, 2019, after conducting the trial, convicted the husband and sentenced him to simple imprisonment of three months with a fine of Rs 0.5 million.

Later, a sessions court dismissed Muzaffar’s appeal and upheld the conviction following which, the convict approached LHC to revoke the orders of lower courts.

“Only the family court had the jurisdiction to try a complaint/offence under section 6(5)(b) of The Muslim Family Laws Ordinance, 1961. The trial conducted by the magistrate was a blatant violation of Article 175(2) of the Constitution. The magistrate has erroneously assumed the jurisdiction. Hence, the trial stands vitiated and the judgments of both the courts below are set-aside and all the proceedings conducted by these courts are quashed,” the LHC judgment read.

The verdict further elaborated that an amendment was introduced in Section 20 of the West Pakistan Family Courts Act, 1964, by Family Courts (Amendment) Ordinance 2002, and the family court was conferred with the power of Judicial Magistrate first class for taking cognisance and trial of any offence under this Act; the Muslim Family Laws Ordinance, 161 and the Child Marriage Restraint Act, 1929.

“The intention of the legislature reflected from the amendment is to fold all family affairs under an umbrella so that sanctity of family affairs and dignity of spouses could be saved from public exposure in ordinary courts,” the order stated.

The order read that the word “exclusive” used in Section 5 makes it vividly clear that no other court can assume jurisdiction in respect of provisions of the Muslim Family Laws Ordinance except the court constituted under the West Pakistan Family Courts Act, 1964.

“It is further clarified that only family court can assume jurisdiction in some offences of Pakistan Penal Code (PPC) as mentioned in Part II of the Schedule if committed against the spouses. It was the reason that under section 20 Family Court was authorized to act as Magistrate of Ist Class,” the judgment read.

The court further explained that sub-Article (2) of Article 270AA of the Constitution of Islamic Republic of Pakistan, 1973, was inserted by way of Eighteenth Amendment Act, X of 2010.

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“270AA (2). Except as provided in clause (1) and subject to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, all other laws including President’s Order, Acts, Ordinances, Chief Executive’s Orders, regulations, enactments, notifications, rules, orders or bye-laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the thirty-first day of October, two thousand and three (both days inclusive) and still in force shall continue to be in force until altered, repealed or amended by the competent authority.”

“In the presence of above specific saving clause, this Court has been informed that Section 5 and 20 as amended by Family Courts (Amendment) Ordinance 2002 (LV of 2002) has not been altered, repealed or amended by the competent authority, as such, the same is in vogue and applicable with all force,” the LHC judgment concluded.