2004 Y L R 1229
"Quashing of F.I.R/Declined".
The Federal Shariat Court in Mst. Kundan Mai v. The State PLD 1988 FSC page 89 has held that if the Nikah has been contracted during Iddat period and the spouses start living as husband and wife, they are guilty of offence under section 10(2) of the Offence, of Zina (Enforcement of Hudood) Ordinance (VII of 1979).
It has also been held that the Nikah performed during Iddat period is liable to be cancelled as according to Shariah that Nikah is void and in order to validate the same, the spouses can contract Nikah for the second time and if they fail to revive their Nikah, they will be guilty of the above-said offence
The Supreme Court of Pakistan in Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf PLD 1963 SC page 51 has held that during the period of 90 days where after divorce becomes effective the divorcee woman remains wife of the husband who pronounces divorce.
The Supreme Court of Pakistan in case reported as Ghulam Shabbir Shah v. The State 1983 SCMR page 942 while holding that the second marriage contracted without observing iddat period was an irregular marriage which ceases to be a valid marriage had maintained the conviction.
Nikah performed during Iddat period was liable to be cancelled as according to Shariah said Nikah was void and in order to validate the same, spouses could contract Nikah for the second time and if they failed to revive their Nikah, they would be guilty of offence under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2004 Y L R 1229
[Lahore]
Before Ijaz Ahmad Chaudhry, J
Mst. SUGHRAN---Petitioner
Versus
STATION HOUSE OFFICER and 2 others---Respondents
Writ Petition No.4925/Q of 2003, decided on 17th December, 2003.
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
Ss. 10/16---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Quashing of F.I.R.
Suit for dissolution of marriage filed by petitioner against her husband was decreed and petitioner (lady) during her Iddat period had contracted second marriage with the co-accused--Effect.
If Nikah was contracted by the lady during Iddat period and spouses started living as husband and wife, they were guilty of offence under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
Nikah performed during Iddat period was liable to be cancelled as according to Shariah said Nikah was void and in order to validate the same, spouses could contract Nikah for the second time and if they failed to revive their Nikah, they would be guilty of offence under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
Marriage having been contracted by the petitioner with the co-accused during Iddat period, unless they would perform Nikah again, they could not live as husband and wife and would be guilty of offence of Zina.
Second marriage contracted by a lady without observing iddat period, was an irregular marriage which ceased to be a valid marriage.
Conviction of the lady was maintained especially when no law was produced in support of the contention that Nikah performed during iddat could be regularized after expiry of 90 days.
F.I.R. against the petitioner, in circumstances, could not be quashed, in circumstances.
Allah Dad v. Mukhtar and another 1992 SCMR 1273; NLR 1993 770; Mst. Kundan Mai v. The State PLD 1988 FSC 89; Ghulam Hussain v. Sirajul Haque and others 1997 PCr.LJ 1214; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51; Ghulam Shabbir Shah v. The State 1983 SCMR 942 and 1994 SCMR 2142 ref.
Sardar Tariq Sher Khan for Petitioner.
Muhammad Qasim Khan, A.A.-G.
ORDER
Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks quashment of F.I.R. No. 172 of 2003 dated 6-11-2003 registered under sections 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) at Police Station Mahmood Kot District Muzaffargarh at the instance of her mother respondent No.2.
2. Briefly the facts narrated in the F.I.R. are that Mst. Sughran Mai petitioner was married with Bashir Ahmad who filed a suit for dissolution of marriage, which was decreed vide judgment and decree dated 15-3-2003 and during the Iddat period, on 27-3-2003, she contracted second marriage with Muhammad Bilal co-accused, whereafter they started living as him band and wife. Hence case was registered. Mst Sughran petitioner was released on bail. Afterwards Muhammad Bilal co-accused was also admitted to bail. The complainant claimed that the petitioner again eloped with him, therefore, the present case was registered.
3. Learned counsel for the petitioner contends that earlier F.I.R. No.67 of 2003 was registered on 5-5-2003 at the same police station with the same allegations wherein Mst. Sughran Mai petitioner and Muhammad Bilal were arrested and they were released on bail by this Court, who being husband and wife are not guilty of offences under sections 10(2)/16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) as now the period of Iddat has already expired and their Nikah has become regular. He further contends that under Article 257 of Muhammadan Law, the marriage performed during Iddat period is not void but may be irregular and cannot be said to be unlawful under Article 264 of Muhammadan Law. Relies upon Allah Dad v. Mukhtar and another 1992 page 1273 in support of his contention It is further contended that the registration of the second F.I.R. on the same allegations is with mala fide intention and ulterior motive in order to humiliate petitioner and her husband.
Also relies upon "1992 SCMR 1273" to contend that with the bonafide belief they are living as husband and wife hence the impugned F.I.R. is liable to be quashed.
4. On the other hand the complainant/ respondent No.2 has appeared in person. who states that the marriage was contracted by the petitioner with Muhammad Bilal co accused during Iddat period and unless they contract Nikah again, they cannot live as husband and wife, hence they are guilty of the above-said offences. She has also filed written arguments alleging that the case has been correctly registered aid relies upon "NLR 1993 page 770." and PLD 1988 FSC page 89".
5. I have heard the arguments of both the parties and also perused the case law cited by them. Learned A.A.-G has also been heard.
6. The Federal Shariat Court in Mst. Kundan Mai v. The State PLD 1988 FSC page 89 has held that if the Nikah has been contracted during Iddat period ant the spouses start living as husband and wife, they are guilty of offence under section 10(2) of the Offence, of Zina (Enforcement of Hudood) Ordinance (VII of 1979). It has also been held that the Nikah performed during Iddat period is liable to be cancelled as according to Shariah that Nikah is void and in order to validate the same, the spouses can contract Nikah for the second time and if they fail to revive their Nikah, they will be guilty of the above-said offence. The relevant portion is reproduced below:--
The other case cited by the complainant reported as Ghulam Hussain v. Sirajul Haque and others 1997 PCr. LJ 1214 is on the point that second F.I.R. can be lodged.
7. I have also searched out the case law on the subject. The Supreme Court of Pakistan in Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf PLD 1963 SC page 51 has held that during the period of 90 days whereafter divorce becomes effective the divorcee woman remains wife of the husband who pronounces divorce. The Supreme Court of Pakistan in case reported as Ghulam Shabbir Shah v. The State 1983 SCMR page 942 while holding that the second marriage contracted without observing Iddat period was an irregular marriage which ceases to be a valid marriage had maintained the conviction. The relevant portion is as under:--
"In section 4 while defining Zina the word "marriage" has been qualified by another word "validly", while in section 5 Zina liable to Hadd the word "marriage", is used without such qualification. A valid marriage has been defined as "marriage contracted and solemnized in accordance with Shariah with all its constituents and conditions, without any legal impediment" (Dr. Tanzilur Rahman). A Code of Muslim Personal Law). Even Mulla's Muhammadan Law recognizes the distinction of valid and invalid marriages and in the category of invalid marriages are placed the irregular marriages and void marriages. So the moment the learned counsel accepts that it was an irregular marriage, it ceases to be a valid marriage.
On no principle of interpretation of Statutes can dissignificant qualifying word "validly" be ignored, treated as redundant or a surplusage. It has to be given a meaning and full effect. So an irregular marriage affords no protection where the law requires as in section 4, a valid marriage."
The case-law reported as Allah Dad v. Mukhtar and another 1992 SCMR page 1273 cited by the learned counsel for the petitioner runs contrary to the facts and circumstances of the present case wherein it was held that the second marriage after the divorce while observing Iddat could not be declared as invalid only for the reasons that the notice was not sent to the Chairman. Even in the said judgment the marriage performed during Iddat period was held to be void. The relevant portion is reproduced here for ready reference:--
"This point was also raised before the trial Court but was rejected on the ground that Nikah during the "Iddat" of the former husband is only an irregular Nikah and is not void, but we do not agree with this finding of the trial Court, because, firstly a marriage contracted during the period of "Iddat" is not merely an irregular marriage, it has been termed by the Muslim Jurists as Batil (void). See Ibn Abidin: Raddul-Muhtar, Vol. 2, p. 482 and secondly, because even if is held to be irregular, it is still an invalid marriage, for both the irregular (Fasid) and void (Batil) marriages fall in the category of "invalid marriage". (See Ibn Abidin Vo1.2. page 835)."
8. In view of above discussion, I am of the view that no case is made out for quashment of F.I.R., No case-law has been produced in support of the contention that the Nikah performed during Iddat period can be regularized after the expiry of 90 days, which question is still open in the present case and under Article 203-DD of the Constitution of the Islamic Republic of Pakistan, 1973, the Federal Shariat Court is the proper forum which can declare any provisions of law or act repugnant to the Injunctions of Islam.
It is also factual controversy that whether after her release on bail in the earlier case the petitioner started living with her in-laws or she came to her mother's house wherefrom she again eloped with Muhammad Bilal co-accused as claimed in the impugned F.I.R., which can be resolved after recording of evidence and this Court cannot assume the role of Investigating Officer as has been held in " 1994 SCMR page 2142".
9. For the foregoing reasons this writ petition having no merit is dismissed. However, it is clarified that the above observations or the case-law cited in this order will not prejudice the case of either party at the trial.
H.B.T./S-15/L Petition dismissed.
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