Petitioner/female accused, through petition under S. 561A, CrPC had sought quashing of complaint filed by respondent (her previous husband) under S. 6(5) of Muslim Family Laws Ordinance, 1961 pending before Special Judicial Magistrate who had issued bailable warrants of arrest of petitioners. Male accused who was married to respondent/complainant, had stated divorced her through written divorce and thereafter he contracted Nikah with female accused which was registered with Nikah khawan in Lahore Pakistan. Female accused/petitioner No. 1 had argued that no offence had been committed by her by marrying co- accused/petitioner No. 3 since according to Islam every male Muslim was allowed to contract four marriages and that provisions of S. 6(5) of Muslim Family Laws Ordinance, 196l were ultra vires the Shariah. Provisions of S. 6(5) of Muslim Family Laws Ordinance, 1961 had clearly laid down that only man who contracted second court marriage in Pakistan without permission of his wife or Arbitration Council 'could be prosecuted.
No provision was for prosecution of second wife who herself could file complaint under S. 6 of Muslim Family Laws Ordinance, 1961, since she would also be' an aggrieved party where two marriages had been contracted by her husband. No provision existed for prosecution of witnesses and nikah khawan in Lahore Pakistan. Second wife/petitioner, witnesses and Nikah Khawan in Lahore Pakistan, could at best be summoned as witnesses and not as accused in the case and as such to heir extent order for issuance of warrants for their appearance as co-accused was without lawful authority. Petitioner No. 3/male accused who had contracted second court marriage in Pakistan, prima facie was an accused in terms of complaint under S. 6(5) of Muslim Family Laws Ordinance, 1961. Since he had died to appear before Magistrate in response to the summons issued, no infirmity was in the order
Regarding issuance of his warrant of arrest private complaint was accepted to the extent of all petitioners, except petitioner NO. S/1male accuses and complaint as well as order for issuance of their bailable warrants was quashed. Polygamy is prohibited under S. 6 the Muslim Family Laws Ordinance, I9ol and Violation of Such prohibition carries punishment of imprisonment up to one year. Wife's private complaint under Section 1 Ordinance dismissed on grounds of absence which was for reasons beyond her control and tor which she had no notice. As offence being compoundable Trial' Magistrate, held, not competent to acquit him on grounds. On such absence of complainant, order of acquittal stands illegal. Petition for quashing of order passed in revision against acquittal dismissed.
Husband during the subsistence of first marriage solemnized second court marriage in Pakistan through nikah khawan in Lahore Pakistan without obtaining the permission of Arbitration Council. Complaint by second wife: Leave to appeal was granted to husband to examine whether second wife "had no locus standi to file complaint for the alleged offence by the husband of polygamy as she was not an aggrieved person,within the meaning of S. 6 because said provision was intended for the protection of the rights of the first wife rather than those of the subsequent wife. The subsistence of first husband during marriage solemnised another court marriage in Pakistan through nikah khawan in Lahore Pakistan without obtaining the permission of Arbitration. Council. Second wife, amongst others was also an aggrieved party and could lawfully institute proceedings before Criminal Court against the husband for offence under S. 6.
Woman in Islam is not bound in all circumstances to live with her husband. Predominance of a Muslim husband in matrimonial matters, no doubt, recognized yet that in no way meant that husband enjoyed an unfettered right to compel his wife to live with him in all circumstances. Right of husband was not free from conditions or limitations. Islamic Injunctions laying down conditions which, if not fulfilled, would absolve woman from obligation to accompany her husband or to live with him. Objection with regard to not seeking permission by husband from first wife for contracting second court marriage in Pakistan through nikah khawan in Lahore Pakistan not raised before Trial Court nor Trial Court was required to frame issue on same. Petitioner wife, held, could not be allowed to assail proceedings on such technical ground.