Only the first wife can challenge the second marriage of her husband if contracted without her permission, ruled by Lahore High Court.
Justice Muhammad Amjad Rafiq issued the ruling quashing a first information report (FIR) against a man registered on an application by his brother-in-law for contracting a second marriage allegedly without the mandatory permission from his first wife.
The Sheikhupura police had registered the impugned FIR in 2013 against Ghazanfar Naveed, the petitioner seeking quashment, on the complaint of the brother of his first wife. Earlier, another FIR was registered in 2011 against him on a similar charge by the same complainant, which was cancelled by a judicial magistrate.
The complainant then lodged the impugned FIR based on the same plea, though with a twist that Naveed contracted a second marriage by preparing a forged permission letter purportedly issued by his first wife. The matter had been pending before a magistrate for trial since 2013.
The counsel for the petitioner mainly argued that under the dicta laid down by the Supreme Court in the famous case of ‘Ms. Sughran Bibi v. The State’ (PLD 2018 SC 595), no second FIR was permissible on the same facts and there was no difference between the two FIRs against the petitioner.
He said the matter was between the spouses and touched the terms and conditions of a marriage certificate/nikahnama and in such an eventuality the ordinary court loses jurisdiction in view of special provisions contained in the Family Courts Act, 1964.
On the other hand, the counsel for the complainant argued that this was not a matter to be tried by a family court because the alleged forgery committed by the petitioner did not fall within the purview of a family dispute.
Justice Rafiq, in his verdict, observed that it is trite that a second FIR is not permissible under the law and that every version in an FIR put forward by the same complainant or different parties to the proceedings would be recorded in the same FIR and if the first stood cancelled, the party concerned may file a private complaint or an application for review of the cancellation order.
In the present case, since the complainant has not done this, there was no occasion for him to get another FIR lodged, the judge added. The judge noted that whether the permission letter was forged or genuine is an issue to be decided by the family court.
He further observed that so far, the first wife had not challenged the second marriage of her husband/petitioner, who is the aggrieved party, in terms of filing a complaint under Section 6(5) of The Muslim Family Laws Ordinance, 1961. The judge maintained that the complainant, being a brother of the first wife, cannot be termed an aggrieved party nor can he be authorised to file such a complaint.
“When the first wife, being sine qua non for initiating the proceedings, an alternative illegal course, that too through a person not aggrieved at all, is nothing but farce,” Justice Rafiq ruled.
He declared that the magistrate was not justified in taking cognisance of the case, which was exclusively triable by a family court. Allowing the petition, the judge declared that the impugned FIR was not competent under the law and quashed the same.
However, he observed that the wife may agitate before the family court by filing a complaint with the grievance on the touchstone of her husband contracting a second marriage without her permission.
