(Mst.) HUMAIRA SARWAR KHAN vs MUHAMMAD HUMAYUN MIRZA And Another
This appeal is directed against the order of the Magistrate 1st Class, Lahore, dismissing the appellant's private complaint under Section 6 of the Muslim Family Laws Ordinance, 1961, regarding the contracting of a second marriage without consent during the subsistence of a previous marriage. The core legal questions involve the maintainability of a criminal appeal against the dismissal of a private complaint and whether the respondent contracted a second marriage without permission during the subsistence of the marriage. The court held that the appeal was not maintainable as the proper remedy was a petition for leave to appeal, and further found on merits that the respondent had divorced the appellant prior to the second marriage and that the complaint was filed with mala fide intent to wreak vengeance. The key principle laid down is that an appeal against the acquittal or dismissal of a private complaint is not maintainable as a direct criminal appeal and requires a petition for leave to appeal.
- Is a criminal appeal maintainable against an order of a Magistrate dismissing a private complaint?
- What is the correct remedy against an order dismissing a private complaint under Section 6 of the Muslim Family Laws Ordinance 1961?
- Whether a husband is liable under Section 6 of the Muslim Family Laws Ordinance 1961 if he contracts a second marriage after divorcing his previous wife?
- Section 6, Muslim Family Laws Ordinance 1961
JUDGMENT RAJA MUHAMMAD SABIR, J. -- This appeal is directed against the order of Magistrate 1st Class, Lahore dated 16.11.1995 dismissing complaint of the appellant under Section 6 of the Muslim Family Laws Ordinance, 1961, against respondent No. 1.
2. Brief facts of the case are that respondent Muhammad Humayun Mirza and appellant Mst.
Humaira Sarwar Khan were husband and were. A suit for dissolution of marriage was instituted by the appellant which was decreed on the basis of khula on 13.12.1992. The respondent entered into second marriage on 29.11.1992 whereupon the appellant filed a private complaint on 22.12.1993 alleging that respondent contracted second marriage without her consent during subsistence of the previous marriage and as such he was liable to be punished in accordance with law. After recording of evidence of the parties, the said complaint was dismissed by the Magistrate on 16.11.1996.
3. Learned counsel for the appellant contends that the suit for dissolution for marriage was decided on 13. 12.1992 whereas the respondent contracted second marriage with another woman without permission of the appellant on 29.11.1992 i.e. 15 days earlier of the dissolution of marriage, therefore, he is guilty for the offence under Section 6 of the Muslim Family Laws Ordinance, 1961 and liable to be punished accordingly.
4. Learned counsel for respondent No. 1 raised legal objection that this appeal is not maintainable being arisen out of a private complaint. He submits that instead of filing this criminal appeal the appellant should have filed petition for leave to appeal against the impugned order. He further submits that respondent No. 1 stated before the trial Court that prior to contracting second marriage he had already divorced the appellant who instituted the private complaint after one year and one month with mala i.e intention to take avenge of her insult of having been -divorced.
5. I have heard the learned counsel for the parties and perused the record. The appeal is not maintainable against the impugned order. The appellant should have filed a petition for leave to appeal instead of filing this criminal appeal. Moreover, the respondent has categorically stated in the trial Court that he had divorced the appellant before entering into second marriage. The appellant and respondent are at daggers drawn against each other. The appellant after one year and one month of the second marriage of the respondent, instituted the private complaint to wreak her vengeance against her previous husband. The appellant has failed to establish guilt of the respondent. Consequently this appeal is dismissed as not maintainable as well as on merit.