ISLAMABAD - Islamabad High Court (IHC) on Thursday turned down a petition challenging the section 6 of the Muslim Family Laws Ordinance, 1961 which says that no man can contract second marriage without permission of his first wife.
A single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah dismissed the petition filed by a woman who wanted to become third wife of a person.
The petitioner namely, Zill-e-Huma Farooq assailed the vires of section 6 of the Muslim Family Laws Ordinance, 1961 and asserted in her petition that she is prevented from entering into a marriage contract with a man because his other two wives are refusing to give their consent.
The section 6 of this law states, “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.”
The counsel for the petitioner mainly argued that section 6 of the Ordinance of 1961 is in conflict with the injunctions of Islam and Articles 2A and 35 of the Constitution of the Islamic Republic of Pakistan.
The bench observed that the Ordinance of 1961 was promulgated and notified in the official gazette on 02-03-1961 with the object of giving effect to the recommendations of the Commission on Marriage and Family Laws. Section 6 deals with polygamy. Sub section (1) of section 6 is couched in negative language and provides that during the subsistence of an existing marriage, no man shall contract another marriage except with the previous permission in writing of the Arbitration Council. Sub section (2) provides that an application seeking permission 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 the existing wife or wives has been obtained thereto. Sub section (3) empowers the Chairman to grant permission if satisfied that the proposed marriage is necessary and just. Sub section (4) further describes the manner in which the application has to be dealt with by the Arbitration Council. Sub section (5) provides the consequences in the event of contracting another marriage without the permission of the Arbitration Council.
Justice Athar said that the above provisions and the validity thereof were challenged through several petitions before the learned Federal Shariat Court. Section 6 of the Ordinance of 1961 was also examined. The learned Federal Shariat Court rendered an exhaustive judgement reported as ‘Allah Rakha and others v. Federation of Pakistan and others’, wherein the provisions of section 6 of the Ordinance of 1961 were declared to be valid and intra vires.
He noted, “The petition is, therefore, without merit and it is accordingly dismissed. It is noted that the petitioner has made certain assertions in the memorandum of petition which raises questions regarding her bonafides to invoke the jurisdiction of this Court under Article 199 of the Constitution.
