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LHC says only family courts can try ‘second marriage offense’

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LAHORE: The Lahore High Court (LHC) has ruled that only family courts have exclusive jurisdiction to hear offenses relating to solemnizing a second marriage without the permission of the first wife.

In his five-page judgment, Judge Muhammad Amjad Rafiq quashed three months’ imprisonment and a fine of 0.5 million rupees to Muzaffar Nawaz by a district court, ruling that the violation of Article 6 ( 5) (b) of the Muslim Family Laws Ordinance, 1961 was tried by a magistrate, who was not competent in the matter. Therefore, the whole procedure, including the trial, would remain flawed, he added.

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Ishrat Rasool, Muzaffar Nawaz’s first wife, had filed a private complaint against her husband. The petitioner claimed that she celebrated her marriage to Muzaffar on September 2, 2013. She stated that during the duration of their marriage, her husband performed another marriage with Sitara Jabeen on April 15, 2015, without her permission.

The complaint was entrusted to a magistrate of Rahim Yar Khan, who, by a judgment handed down on May 17, 2019, at the end of the trial, found the husband guilty and sentenced him to a simple prison sentence of three months with a fine of Rs 0.5 million.

A district court later dismissed Muzaffar’s appeal and upheld the conviction, following which the convict asked LHC to revoke the orders of the lower courts.

“Only the family court was competent to hear a complaint / misdemeanor under section 6 (5) (b) of the Muslim Family Law Ordinance, 1961. The trial conducted by the magistrate was a flagrant violation of article 175 (2) of the Constitution. The magistrate wrongly assumed jurisdiction. Consequently, the trial is flawed and the judgments of the two lower courts are set aside and all proceedings carried out by these courts are set aside, ”the LHC ruling states.

The verdict further clarified that an amendment had been introduced in Section 20 of the West Pakistan Family Courts Act 1964, through the Family Courts (Amendment) Order 2002 and that the family court has been given the power of first-class judicial magistrate to take cognizance and judge of any infringement of this law; the Muslim Family Law Ordinance, 161 and the Restriction of Child Marriage Act, 1929.

“The intention of the legislator reflected by the amendment is to bring together all family matters under one roof so that the sanctity of family matters and the dignity of spouses can be preserved from public display in ordinary courts,” said the prescription.

The ordinance stated that the word “exclusive” used in section 5 makes it clear that no other court can exercise jurisdiction over the provisions of the Muslim family law ordinance, except of the tribunal established under the West Pakistan Family Courts Act 1964.

“It is further clarified that only the Family Court can exercise jurisdiction over certain Pakistan Penal Code (PPC) offenses mentioned in Part II of the Annex if they are committed against the spouses. This was the reason why, under article 20, the family court was authorized to act as a magistrate of first class ”, one reads in the judgment.

The court further explained that subsection (2) of Article 270AA of the Constitution of the Islamic Republic of Pakistan, 1973, was inserted through the Eighteenth Amendment Act, X of 2010.

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“270AA (2). Except as provided in clause (1) and subject to the provisions of the Constitutional Law (Eighteenth Amendment), 2010, all other laws, including Presidential decrees, laws, ordinances, orders of the Chief of the executive, regulations, laws, notices, rules, ordinances or bye-laws made between the twelfth day of October one thousand nine hundred and ninety-nine and the thirty-first of October two thousand and three (the two days included) and still in force will continue to be in force until they are modified, repealed or modified by the competent authority.

“In the presence of the specific saving clause above, the Court was informed that Articles 5 and 20 as amended by the Family Courts (Amendment) Ordinance 2002 (LV 2002) did not not been modified, repealed or modified by the competent authority, as such, the same is in vogue and applicable with all force ”, concluded the LHC judgment.