2016 CLC Lah 717
(a) Criminal Procedure Code (V of 1898)---
----Ss. 22-A & 22-B---Registration of FIR---Irregular marriage---Petitioner alleged that his daughter was abducted by respondents who also took away gold ornaments and cash amount with them from his house---Ex-officio Justice of Peace declined to interfere in the matter as daughter of the petitioner was a sui juris and had contracted second marriage after elapse of period of Iddat---Validity---Marriage entered into by a divorced lady before completion of Iddat period could be an irregular marriage and not void marriage---Marriage which was irregular could not be treated as void marriage---Union of husband and wife in irregular marriage could not be regarded as un-Islamic or against Sharia---Daughter of petitioner was divorced by her previous husband and if she had produced divorce deed, the same would be valid when the previous husband had not come forward to deny or dispute validity of 'Talaqnama'---High Court declined to interfere in the order passed by Ex-officio Justice of Peace---Petition was dismissed in circumstances.
Mst. Sughran v. Station House Officer and others 2004 YLR 1229; Fatima Bibi v. Station House Officer and others PLD 2005 Lah. 126 and Mst. Kundan Mai v. The State PLD 1988 FSC 89 ref.
Para No.2, Surah Al-Baqarah, Verse No.228 of Holy Quran; Mullah's Mohammadan Law; Shaukat Ali and others v. The State 2004 YLR 619 and Allah Dad v. Mukhtar and another 1992 SCMR 1273 rel.
(b) Islamic law---
----Marriage---Divorced lady---Iddat period---Non observance of---Effect---Marriage entered into by a divorced lady before completion of Iddat period could be an irregular marriage and not void marriage---Marriage which was irregular could not be treated as void marriage---Union of husband and wife in irregular marriage could not be regarded as un-Islamic or against Sharia.
Mst. Sughran. v. Station House Officer and others 2004 YLR 1229; Fatima Bibi v. Station House Officer, and others PLD 2005 Lah. 126 and Mst. Kundan Mai v. The State PLD 1988 FSC 89 ref.
Ch. Ghulam Farid Sanotra for Petitioner.
Ch. Iftikhar Iqbal Ahmad, A.A.G. for the State.
Malik Muhammad Azam Awan for Respondents.
Date of hearing: 11th September, 2015.
JUDGMENT
HAFIZ SHAHID NADEEM KAHLOON, J.--- Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the vires of order dated 21.06.2011 passed by learned Ex-Officio Justice of Peace (Addl. Sessions Judge) Khushab, whereby the application made by the petitioner under Sections 22-A and 22-B, Cr.P.C. seeking direction for registration of a case against respondents Nos.3 to 6 was dismissed.
2.The brief facts as narrated in the petition under Sections 22-A and 22-B, Cr.P.C. for the registration of criminal case against respondents Nos.3 to 6 moved by petitioner before Ex-officio Justice of Peace, Khushab, are that on 01.05.2011 they abducted Mst. Farzana Bibi, daughter of the petitioner and also took away gold ornaments weighing 5-tolas and net cash of Rs.50,000/- with them from the house of the petitioner. It is note worthy that Mst. Farzana Bibi was earlier married with one Muhammad Sarwar, who divorced her on 06.02.2011. Whereupon she contracted second marriage with one Mujahid Iqbal (respondent No.3) without observing the period of Iddat on 02.05.2011, therefore said Mujahid Iqbal is committing zina with his daughter (Mst.Farzana Bibi), but the learned Ex-officio Justice of Peace after procuring the report from the police, dismissed the application of the petitioner vide impugned order dated 21.06.2011. Hence, the instant writ petition.
3.The learned counsel for the petitioner submits that according to the contents of petition filed before the learned Justice of Peace, clearly cognizable offence was made out as during the period of Iddat, no second marriage can be solemnized and as such Nikah would not be valid rather void and the result of illegal cohabitation. Further submits that it is settled law that when the information regarding the commission of cognizable offence is given to police officer, he is duty bound to register a case, but in this case, the police officer has failed to perform his statutory duty and learned Ex-officio Justice of Peace was erred in law by dismissing the petition without any lawful justification, therefore, the same is not sustainable in the eye of law and is liable to be set-aside. Learned counsel for the petitioner in his support referred case law "Mst. Sughran v. Station House Officer etc." (2004 YLR 1229), "Fatima Bibi. v. Station House Officer, etc." (PLD 2005 Lahore 126) and "Mst. Kundan Mai v. The State" (PLD 1988 Federal Shariat Court 89).
4.The learned Assistant Advocate General assisted by learned counsel for the respondents has opposed the contention of learned counsel for the petitioner by arguing that no one had abducted Mst. Farzana Bibi, who being sui juris contracted second marriage after elapsing the period of Iddat as her first husband namely Muhammad Sarwar divorced her on 06.02.2011 as is evident from the Talaq-nama which is annexed with this writ petition. Further argued that Mst. Farzana Bibi, the alleged abductee also got her statement recorded on oath, whereby she negated the contention of the petitioner and as such the lady who contracted the second marriage knows better whether she is in a position to contract marriage as per period of her menstruations, because three menstruations are essential to fulfill the requirements of Iddat. Therefore, learned Ex-officio Justice of Peace has rightly passed the well reasoned order, which does not suffer from any illegality and infirmity.
5.Arguments heard and record perused.
6.Perusal of record shows that allegedly on committing the offence, the petitioner moved an application to local police, but could not get the FIR registered. There-after he moved a petition under Sections 22-A and 22-B, Cr.P.C. before learned Ex-officio Justice of Peace, who after procuring the report passed the following order:-
"Mst. Farzana Bibi is a sui juris has contracted marriage with her free consent after obtaining a decree for dissolution of marriage. So far as contention of the petitioner is concerned, she contracted second marriage during the period of Iddat. In this regard, there is conflict of vexes and the lady who contracted the marriage knows better whether she is in a position to contract marriage keeping in view the period of her menstruation. In view of above, this application having no merit is hereby dismissed."
7.It has been observed by this Court that no one has abducted Mst. Farzana Bibi, daughter of the petitioner, who was divorced lady and being sui juris contracted second marriage with her free will and consent and against the wishes of her father as according to alleged abductee, her father was forcing her to contract second marriage with another person of his choice. As per alleged abductee, she was not in a Iddat period, when she contracted second marriage. On the other hand, according to the petitioner, Mst. Farzana Bibi without completing the period of Iddat, contracted second marriage, which is illegal and she is committing zina, but I am of the view that according to Injunction of Islam, Holy Quran and Sunnah, three menstruations are essential to complete the period of Iddat and the divorcee lady is best judge, who has knowledge or ascertain the same.
8.In Para No.2, Surah Al-Baqarah, Verses No.228 of Holy Quran, it has been stated by Almighty-Allah as under:-
"The divorced women shall wait concerning themselves for three menstrual periods and it is not lawful for them to hide what Allah has created in their wombs, if they believe in Allah and the Last Day. And their husbands have the better rights to take them back during that period provided they desire reconciliation. And women have rights similar to those (of their husbands) over them (as regards obedience and respect) in a just manner, but men have a degree (of responsibility) over them. Allah is All mighty, wise about all things."
9.It is settled Islamic law that the marriage entered into divorced lady before the completion of Iddat period would be irregular marriage and not void marriage as per law laid down in Mullah's Muhammadan Law. Marriage which is irregular cannot be treated as void marriage. The union of husband and wife in irregular marriage cannot be regarded against un-Islamic or Shariah. Alleged female accused having been divorced by previous husband if produced divorce-deed, would be valid when previous husband has not come forward to deny or dispute the validity of "Talaq-nama". In this regard reliance can be placed in case reported as "Shaukat Ali, etc. v. The State" (2004 YLR 619):
10.Even other-wise, Injunction of Islam with regard to the validity of marriage shall prevail for the propose of Ordinance, 1979 over the existing law. Reliance can be placed in this regard "Allah Dad v. Mukhtar and another." (1992 SCMR 1273). Wherein it has been held as under:--
"Remarriage of a woman requires a period of "Iddat" for 39-days. The period of "Iddat" laid down by the Holy Quran is not 90-days. It is rather three periods of menstruations which do not necessary extend to 90-days. According to Hanifi Jurists the minimum period of menstruation is 3-days and the minimum period of "Tuhr" (period of purity) is 15-days. In the light of these principles, the minimum period of "Iddat" may 39-days because this is the period in which it is possible for a woman to have three menstruations with two intervening period of purity."
It is, thus, clear that a marriage performed after 3-menstruations period from the divorce, can be a valid marriage according to Shariah.".
11.Moreover, the learned counsel for the petitioner could not point out any legal and factual infirmity in the impugned order passed by learned Ex-officio Justice of Peace and also could not refute what has been stated in the police report and parawise comments furnished by the police. In such circumstances, learned Ex-officio Justice of Peace has rightly passed impugned order after considering the real facts on every aspect of the case and thorough probe the matter. Citations referred above by the learned counsel for the petitioner are not applicable to the facts and circumstances of the present case.
Resultantly, the impugned order dated 21.06.2011 passed by learned Justice of Peace is in accordance with law and same is hereby up-held and instant writ petition being devoid of any merits is hereby dismissed.
MH/M-303/LPetition dismissed.
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