ZAKIR HUSSAIN SIDDIQUI Versus NASIM BANO

The petitioner has felt aggrieved again st the order passed by the Deputy Commissioner, Karachi, on 9‑5‑1985.

2. The relevant facts are that the petitioner was the husband of Mst. Nasim Bano. The petitioner is alleged to have contracted a second marriage during the subsistence of his marriage with Mst. Nasim Bano. Mst. Nasim Bano thereupon filed an application under section 6 of Muslim Family Laws Ordinance, 1961, before XIXth Civil Judge and Chairman Conciliation Court, Karachi, for taking cognizance of offence of bigamy and ordering the prosecution of the petitioner for the bigamous act. On 5‑1‑1983, the petitioner asked the Civil Judge to return the plaint, as the Court was incompetent to entertain a Chairman case. On 19‑7‑1983, the Civil Judge passed the order that he had no jurisdiction to entertain the matter as it was not specified in the Schedule and further observed that the .Arbitration Council was the competent authority to deal with the matter. The plaint, was therefore, returned for presentation to proper forum.

3. The respondent filed revision under section 6(4) of the Muslim Family Laws Ordinance before the Dy. Commissioner. After the arguments the Deputy Commissioner passed the impugned order and held that the Civil and Family Judge has misinterpreted the law and position. It was observed that the grievance is triable by the Chairman Arbitration Council, as the complaint regarding polygamy is the exclusive jurisdiction of the Arbitration Council in accordance with the provisions of Muslim Family Laws Ordinance, 1961. He, therefore, remanded the case back to the Civil Judge to try and dispose of the same on merits as Chairman Arbitration Council.

4. Mr. Maroof Ali Khan, learned counsel for petitioner, contended that the respondent No.l had not passed a correct order and that he had no jurisdiction to deal with the matter. It appears to me that the respondent No.l as well as respondent No.2 have not correctly appreciated the position of a complaint under section 6 (5) of Muslim Family Laws Ordinance, 1961. The Arbitration Council is only for the purposes of deciding an application for permission to contract a second marriage and thereafter its function stops. If a person is aggrieved A by an order one way or the other passed by the Arbitration Council in respect of permission of a second marriage then the aggrieved person, whether husband or wife, can file a revision under section 9 of Muslim Family Laws Ordinance 1961, to an S.D.O. The Arbitration Council has, however, no function to perform in respect of a complaint made for punishing a person, who has contracted a second marriage without the permission of the Arbitration Council. For this purpose Rule 21 of Muslim Family Laws Rules, 1961, is very relevant, which provides as under:‑

"21. No Court shall take cognizance of any offence under the Ordinance or these rules, save on a complaint in writing by the Union Council stating the facts constituting the offence."

It is, therefore, apparent that the complaint in respect of bigamy is to be made by the Union Council and by none else. The Arbitration Council has nothing to do with such a complaint. Moreover, it is clear from reading the Schedule of the Family Courts Act, 1964, B that Family Court Judge can only deal with the matter of dissolution of marriage, dower, maintenance, restitution of conjugal rights, custody of children, guardianship and jactitation of marriage and, therefore, he has no jurisdiction to deal with and try an offence of bigamy and, therefore, the Family Court Judge will have no jurisdiction in such cases. Such offence can only be tried by a Magistrate.

5. The respondent No.3 had approached the Chairman Conciliation but it was probably a misconception. It was only a Union Council, which could be approached in the matter of filing a complaint of bigamy. Mr. A.K.M. Idrees, learned counsel for respondent No.3 has stated that mere misdescription was of no consequence inasmuch as the concerned Civil Judge was the Chairman of the Union Council. For this different notifications have been relied upon but I need not go into that position because even the petitioner's counsel had not denied that the said Civil Judge was designated as a Chairman of the Union Council. Mr. Maroof's main contention was that the Chairman of Union is a different entity from the Union Council itself and for this he has relied upon P L D 1975 Lah. 951 and also P L D 1967 Pesh: 201 as well as 1984 P Cr. L J 111, where it has been held that the Chairman of the Union Council and Union Council are different entities. It is, therefore, apparent that the respondent No.3 could approach only the Union Council for the purpose of filing the complaint of bigamy and, therefore, in effect the Civil Judge had passed a correct order for returning the complaint to respondent No.3. The Deputy Commissioner had not passed a correct order because the Arbitration Council has no function in the matter of complaint of Bigamy. The respondent No.3 can, therefore, present her complaint to the Union Council and the same can then be forwarded by the Union Council to the concerned Magistrate for trial. Consequently, this petition is allowed, as the order of respondent No.l has been found to be without authority.

6. Mr. A.K.M. Idrees had pointed out that there is no Union Council in existence and, therefore, there is possibly a vacuum in respect of filing of complaints in respect of bigamy. If this position is correct, then it is unfortunate. The matter then requires serious consideration by the Government of Sind for remedying the situation at very early date. After all rights should not be allowed to be lost for lack of forum. I would, therefore, order that the copy of this judgment be sent to the Secretary; Law Department, Sind Secretariat, Government of Sind, Karachi, for necessary action in this regard.

M.Z.S./Z‑76/k Petition accepted.