Mian KHADIM HUSSAIN vs Mst. FAUZIA HUSSAIN And Another

ORDER

1. NASIM HASAN SHAH, J.--The petitioner, Mian Khadim Hussain, was married to Mst. Fauzia Hussain (respondent No.1 herein) on 28-6-1975 under the Registration of Marriage Act, 1949, in Birmingham (United Kingdom). Later on, he came to Pakistan and got married to Mst. Farhat Saeeda in Gujrat on 22-4-1982. Mst. Fauzia filed a complaint with the Chairman, Arbitration Council, Ward No.4, Municipal Committee, Gujrat that the petitioner had taken another wife, without her permission and, therefore, had contravened the provisions of section 6(5) of Muslim Family Laws Ordinance, 1961. This complaint was forwarded to the Ilaqa Magistrate on 31-7-1983 by the Chairman, Arbitration Council for trial.

2. When the case was taken up Mian Khadim Hussain submitted an application under section 249-A, Cr.P.C. Seeking acquittal. The application was accepted by the Magistrate 1st Class, Gujrat, vide his order, dated 7-12-1983 and the petitioner was acquitted under section 249-A, Cr.P.C. On the ground that there was no likelihood of the accused being ultimately convicted of any offence.

3. Feeling aggrieved, Mst. Fauzia Hussain, respondent No. l, filed a petition for leave to appeal before the Lahore High Court against .He aforesaid order under section 417(2) of the Criminal Procedure Code.

4. A learned Single Judge of the said learned Court by a detailed and comprehensive order allowed the said petition, set aside the order of acquittal, dated 7-12-1983 passed by the learned Magistrate and remanded the complaint of Mst. Fauzia Hussain for trial according to law. In the course of the order the learned Judge observed:-- "In the instant case, the marriage of Mst. Fauzia Hussain and Mian Khadim Hussain was duly registered before the Deputy Registrar, at Birmingham. It was not registered under the Muslim Family Laws Ordinance but that would not make the marriage between them as a 'doubtful fact'.

5. The parties lived together as husband and wife. They had two daughters out of their wed-lock. Mst.

6. Fauzia Hussain filed a suit for dissolution of marriage and for maintenance against Mian Khadim liussain who in retaliation filed a suit for restitution of conjugal rights against Mst. Fauzia Hussain in Pakistani Courts. This would mean that both the parties accepted and admitted the fact of their first marriage in Birmingham. The precise argument of the learned counsel fore respondent No. 1 was that as the first marriage was not registered under the Muslim Family Laws Ordinance, therefore, it was not necessary for him to seek permission of his first wife before contracting second marriage in Pakistan. I am not prepared to accept this argument of the learned counsel Even if the earlier marriage of the parties was performed in Birmingham, then also that was a valid marriage between the two Muslims and as such Mian Khadim Hussain could not have entered in second marriage without permission of his first wife under the Muslim Family Laws Ordinance."

7. Ch. Muhammad Abdus Saleem, learned counsel for the petitioner, has addressed a lengthy argument before us in which he raised a large number of points, some of which do seem to be arguable on the legal B plane. However, we feel that, in the circumstances of this case, this is not an appropriate occasion for adjudicating upon the points raised and we are not inclined to grant leave to appeal in this case.

8. This petition, accordingly, stands dismissed.