Is the family court involved in permission for a second marriage?

In   Permission of Second Marriage in Pakistan, the laws governing marriage and family matters are largely derived from Islamic principles, codified through legislation such as the Muslim Family Laws Ordinance (MFLO), 1961, and the Family Courts Act, 1964. One common point of confusion among the public is the role of the family court in granting permission for a second marriage by a Muslim man. Many people assume that a man must go to court to obtain such permission; however, this is not accurate. The process of obtaining permission for a second marriage is administrative, not judicial. Therefore, family courts are not directly involved in granting permission for a second marriage in Pakistan.

Legal Authority for Second Marriage: Arbitration Council, Not Family Court

The legal procedure for obtaining permission for a second marriage is clearly defined in Section 6 of the Muslim Family Laws Ordinance, 1961. According to this section:

“No man, during the subsistence of an existing marriage, shall, except with the prior permission in writing of the Arbitration Council, contract another marriage…”

This provision makes it clear that permission must be obtained from the Arbitration Council, which is formed under the authority of the Union Council, not the family court. The Arbitration Council is an administrative body, not a judicial one, and is headed by the Chairman of the Union Council or a notified official.

Steps for Permission from the Arbitration Council:

1. Application by Husband: The man must apply in writing to the Chairman of the Union Council, explaining why he wants to marry again.

2. Formation of Arbitration Council: The Chairman forms an Arbitration Council, which includes:

   • The Chairman (as Presiding Officer)

   • One representative from the husband

   • One representative from the existing wife

3. Hearing: The Council conducts a hearing and determines whether the proposed marriage is “just and necessary.”

4. Decision: Based on the evidence, the Council either grants or denies permission.

Role of Family Courts in Marital Matters

While family courts do not grant permission for second marriages, they play a crucial role in other related matters, particularly when there is a dispute, violation, or complaint involving second marriages. These include:

1. Divorce or Khula Proceedings

If a husband enters into a second marriage without following the legal procedure (i.e., without permission from the Arbitration Council), the first wife has the right to seek divorce on grounds such as cruelty, deception, or mental anguish. In such cases, the family court hears the case and may grant:

• Talaq (divorce initiated by the husband, if contested)

• Khula (divorce initiated by the wife)

2. Maintenance and Financial Claims

The first wife can approach the family court to claim:

• Monthly maintenance allowance

• Past unpaid maintenance

• Dower (Haq Mehr) or other financial entitlements

3. Custody and Guardianship of Children

After a second marriage, disputes often arise over the custody of children, especially if the marriage leads to separation or divorce. In such cases, the family court decides based on the best interests of the child.

4. Enforcement of Nikah Nama Clauses

If the marriage contract (Nikah Nama) contains a clause prohibiting second marriage without consent, or if the wife has been granted the delegated right of divorce (Talaq-e-Tafweez), the family court can enforce those clauses.

Violation of Section 6 and Criminal Proceedings

If a man marries a second time without the required permission, he commits an offense under Section 6(5) of the MFLO, which states:

“Whoever contravenes the provisions of sub-section (1) shall: Be punishable with simple imprisonment which may extend to one year, Or with a fine which may extend to five hundred thousand rupees, Or with both.”

This offense is triable by a criminal magistrate, not a family court. However, the family court may still deal with the consequences of such a violation, such as granting a divorce or maintenance.

When Can the Family Court Be Indirectly Involved?

 Permission for Second Marriage  Although family courts do not issue permission for a second marriage, they may be indirectly involved in some exceptional scenarios:

• If the first wife files a case claiming cruelty or mental torture due to the second marriage.

• If the Arbitration Council’s decision is challenged, and the matter escalates to a constitutional petition in the High Court (not the family court).

• If there are property or inheritance disputes between children or wives from different marriages.

Conclusion

To conclude, family courts in Pakistan are not responsible for granting permission for second marriages. That authority lies exclusively with the Arbitration Council, an administrative body formed under the Union Council. The esteemed team of expert lawyers at Khadija Law Associates excels in providing exceptional legal services to clients dealing with family disputes. However, the family court plays a critical role in handling the aftermath of a second marriage—particularly in cases involving divorce, maintenance, child custody, and enforcement of the marriage contract. Therefore, while a man does not need court permission to remarry, he must follow the legal procedure laid out in Section 6 of the MFLO. Failing to do so exposes him to criminal penalties and gives the first wife strong grounds to seek justice through the family court system.