A man was accused of forgery to establish the consent of his wife to contract a second marriage. After a complaint was filed, the LHC ruled on three main points. First, that the same complaint cannot be made through multiple FIRs and a subsequent FIR cannot follow on a matter where an FIR has already been registered. Second, a first wife is the only person who can bring a case against her husband if a second marriage is contracted without her permission. Third, an allegation of forgery by a husband against his wife to contract a second marriage is a matter for the family court and that a family court alone has jurisdiction under the Muslim Family Laws Ordinance (MFLO), 1961.

In a country where awareness regarding a person’s rights is limited, it is good that this case has received some media attention. Hopefully a debate will follow. In the spirit of such a debate, this article observes how the courts, judges and the environment in which they operate perpetuate misconceptions, particularly on family and gender related issues.

The court relied on Section 6 of the MFLO which deals with polygamy. It highlights that a subsequent marriage, without fulfilling certain legal requirements, can be challenged. The section states that a man must apply to the Arbitration Council requesting permission for an additional marriage. Information on whether the existing wife or wives’ permission to the marriage has been obtained, must also be provided. If a man does not receive the Council’s written permission, any subsequent marriage is invalid. Any man in violation of this can be subject to the payment of the entire amount of dower to the existing wife and may be punishable with imprisonment and a fine. Nowhere does this section, or the Ordinance, talk about who can or cannot bring a complaint against a husband who has not sought lawful permission from his existing wife. The LHC interpretation that only an existing wife can bring such a complaint, relies simply on the general principle that in a civil matter (which includes family law) a private party that is directly affected may bring a complaint. Hence, the LHC’s observation that “a person [bringing a complaint] not aggrieved at all, is nothing but farce.”

Neither the Penal Code provision on forgery nor any family related legislation states that a situation in which a husband attempts forgery against his wife should fall under the jurisdiction of the family court. In fact, forgery is a form of fraud, and is blind to whether the parties involved are family or bound by a marriage certificate.

What the court did not consider was sufficient locus (what in legal language is known as locus standi) in civil matters. Locus is when the directness of a litigant’s interest in proceedings is such that it warrants him to assert a claim. In this case, the court failed to consider whether the aggrieved wife’s brother had sufficient locus to bring forward a complaint. For example, is he a close enough family member to have a direct interest in the matter? Would his sister’s financial situation change if her husband remarried? Would that changed financial situation impact him (the brother) so as to have a direct interest in this second marriage? This was also an opportunity for the LHC to consider the widely accepted fact that women’s access to justice, for institutional, financial and societal reasons, is seriously restricted and perhaps a reason for why the brother-in-law, and not the not wife, is bringing the complaint.

The LHC went on to rule that the forgery in this case, where the accused allegedly forged the permission of his wife to contract a second marriage, is a matter for the family court. Forgery is a specific criminal offence. It can also potentially be a civil offence (when a financial loss has been suffered). This means that fraud can be claimed in both a criminal court and in the civil courts, and in some situations may be perused simultaneously. Neither the Penal Code provision on forgery nor any family related legislation states that a situation in which a husband attempts forgery against his wife should fall under the jurisdiction of the family court. In fact, forgery is a form of fraud, and is blind to whether the parties involved are family or bound by a marriage certificate. If, in fact, the husband did forge his wife’s signature, would this not be an opportunity for the court to set a precedent and highlight the legal requirement that genuine consent from an existing wife is necessary before a subsequent marriage? Further, if the court gave more consideration to the alleged forgery as just a Penal Code offence, the argument that only the aggrieved wife can bring the claim would weaken, and subsequently allow the argument of the accused’s brother-in-law’s eligibility to bring a complaint to gain more traction.

There is an institutional norm among all those that may come across anything remotely gender and family related to lump the issue into a specific category – in this case for the matter to be dealt with under family law. This broad brush - of everything between a husband a wife being either a private matter or restricted only to the family courts - that the court applied, failed to consider the very serious criminal allegation of dishonesty and fraud where the making or signing a document was for the intent to make others believe that authority and approval (in this case of the existing wife) had been sought. This case could have also taken into account the criminal intent of undermining the authority of the Union and Arbitration Council, bodies set up to regulate and protect all parties to a marriage under the 1961 Family Law Ordinance. We all look to the courts for reasoning that is rigorous, and which considers all societal and legal perspectives. We seek for these institutions to not reinforce the status quo; instead to shed myopic interpretations of the law, and in turn of society, one case law at a time.

The writer is a lawyer and consultant. Twitter: @BenazirJatoi