Man convicted for contracting second marriage without wife's consent challenges family laws amendments

Petitioner was convicted under Muslim Family Laws Ordinance 1961

LAHORE: A man imprisoned for contracting second marriage without his first wife’s consent has challenged in Lahore High Court the amendments made by the provincial assembly to the Muslim Family Laws Ordinance (MFLO) 1961 and its rules in this regard.

“The amendments to MFLO 1961 as well as its Rules of 1961 are beyond the constitutional mandate of the provincial legislature hence ultra vires to the constitution of the Islamic Republic of Pakistan 1973 and against the basic principle of federalism,” he contended.

The petitioner, Dr Muhammad Mudassar, cited as respondents the Federation of Pakistan through the secretary of the ministry of law and parliamentary affairs and the provincial law secretary.

He contended that he was tried under section 6 of the MFLO and handed down one-month imprisonment and Rs500,000 fine through a judgment by the Sialkot special judicial magistrate on May 17 last year for contracting second marriage without the consent of his wife.

He submitted that section 1, subsection 2 of the MFLO declared that the law extended to the whole of Pakistan, was applicable on all Muslim citizens and had should come into force after notification by the federal government in the official gazette.

The petitioner said certain amendments were introduced by the provincial legislatures in the MFLO 1961 and its rules, which was beyond their constitutional mandate, domain and competence. He said lawmakers of a province should not legislate or amend laws that fell under a federal subject. He contended that the apex court had explained the domains of federal and provincial legislatures in a case of 2018.

He also quoted the court’s remarks that “when the main body of the Constitution provides for the competent legislature, it is not necessary to look into the legislative list”.

The petition questioned the domain of the provincial legislature in the light of articles 70, 137, 141, 142 and 143, read with the 1st and 4th schedules. The petitioner said there was a balance of powers between the federation and provinces with provincial autonomy in specified areas.

The Constitution, which was characterised as a living and organic thing, was not to be interpreted narrowly or restrictively, he said, adding that whilst the provincial legislatures were independent, they must operate within the sphere allotted to them and their prescribed limits.

Neither the federation nor the provinces should invade the rights of the others or encroach on the others’ legislative domain. He prayed that the amendments to the MFLO 1961 and its rules be declared beyond the constitutional mandate of the provincial legislature, hence ultra vires to the Constitution and against the basic principle of federalism.

The said the amendments should be declared void ab initio.