PLJ 2015 Lahore 1201

[Multan Bench Multan]

Present: Ibad-ur-Rehman Lodhi, J.

KAUSAR PARVEEN and another--Petitioners

versus

S.H.O., P.S. CITY JALALPUR PIRWALA, DISTRICT MULTAN
and 2 others--Respondents

W.P. No. 13585 of 2014, decided on 16.2.2015.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 375-iv, 376, 380, 457, 493-A and 496-B--Quashing of FIR--Illegally wedded wife entered into a marriage--Suit for dissolution of marriage, decreed in ex-parteproceedings--On very next day petitioner-accused entered into marriage--Status of regular marriage--Matrimonial life on strength of valid marriage--Iddat period--Criminality--Question of--Whether second marriage would be termed as valid, void or irregular--Determination--Validity--FIR was registered on wrong premises and no criminality was established even prima facie connecting with alleged crime--If FIR was permitted to remain in field, it would not only wastage of precious public time of Courts but also wastage of precious time of investigating agency by overburdening as would result in causing unjustified interference in matrimonial life on strength of a valid marriage--It will be not beneficial to allow further prosecution of registered criminal case--No further proceedings on basis of such FIR were allowed to be carried out by any forum or agency--Petition was allowed. [P. 1206] C

Mohammadan Law--

----Marriage before completion of iddat--Suit for dissolution of marriage, decreed in ex-parte proceeding on very next day entered into marriage-Validity--Marriage with a woman before completion of iddat is irregular and not void--Iddat was described as period during which it was incumbent upon a woman, whose marriage had been dissolved by divorce or death to remain in seclusion and to abstain from marrying another husband--In case marriage was dissolute by death, wife was bound to observe iddatwhether marriage was consummated or not and in case of dissolution of marriage by divorce, wife was bound to observe iddat only if marriage was consummated--If there was no consummation, there is no iddat and she is free to marry immediate.      [P. 1203 & 1204] A

Muslim Family Law Ordinance, 1961--

----S. 7--Issuance of notice and effect--Divorce--Validity--It is settled position that on validity of divorce, absence of such notice would have no bearing.                                         [P. 1205] B

Mr. Muhammad Ali Siddiqui, Advocate for Petitioners.

Mr. M.R. Fakhar Baloch, Advocate for Respondent 2.

Mr. Muhammad Abdul Wadood, D.P.G. for State.

Date of hearing: 11.12.2014.

Judgment

With the background that Kausar Parveen (Petitioner No. 1) was in his wedlock, Muhammad Iqbal(Respondent No. 2) got registered a criminal case by means of FIR No. 400, dated 20.09.2014, under Sections 375-iv, 376, 380, 457, 493-A and 496-B, PPC, at Police Station, City Jalalpur Pir Wala, District Multan, with the allegation that Petitioner No. 1, being his legally wedded wife, entered into a marriage with one Samar Khan (Petitioner No. 2), which is a criminal offence. Theft of gold ornaments and some cash amount was also alleged in the FIR.

2.  The petitioners, through the present Constitutional petition, seek quashment of said FIR.

3.  According to the facts relevant for the purposes of the present petition, Kausar Parveen(Petitioner No. 1) filed a suit for dissolution of her marriage before a learned Judge Family Court on 09.07.2013, which was decreed in ex-parte proceedings on 06.09.2013. On very next day i.e. 07.09.2013, the petitioners entered into marriage. Earlier to the suit filed on 09.07.2013, Petitioner No. 1 preferred a suit for jactitation of her marriage on 23.05.2013 which was withdrawn on 04.07.2013.

4.  Respondent No. 2 has placed on record some additional documents and with the help of the same attempted to create impression that in the said suit for dissolution of marriage, Petitioner No. 1 subsequently appeared before the learned Judge Family Court and consented to recall the order dated 04.07.2013, by accepting the application moved by Respondent No. 2, for recalling the said order. In order to properly appreciate the contention for Respondent No. 2, the additional documents have been examined carefully. The same includes an undated application carrying non-judicial stamp, showing the same as purchased on 21.10.2013, stated to have been moved before the learned Judge Family Court, who passed a decree for dissolution of marriage. Not only that the said application was undated, but the statement of Petitioner No. 1, showing to have been recorded in pursuance to such application is again an undated document, which follows with no formal order of the learned Judge, showing final disposal of such application. The statement stated to have been made by Petitioner No. 1 again creates no sense, which is reproduced herein below:

بیان ازان کوثر پروین دختر محمد عاشق زوجہ اقبال حسین بموجودگی و شناخت کونسل مسئول علیہا ﴿بر حلف﴾۔

بیان کیا کہ درخواست منسوخی ڈگری بر دعوی کوثر پروین بنام اقبال حسین ڈگری شدہ مورخہ 6.9.2013 منظور کیے جانے اور ڈگری تنسیخ نکاح 6.9.2013 منظور کیے جانے پر اعتراض نہ ہے۔ میں نے بیان مذکورہ بالا اپنی آزاد مرضی سے سوچ سمجھ کر بلاجبرو کراہ دیا ہے۔

سن کر درست تسلیم کیا۔

As such, the proceedings, shown to have been carried out on the basis of such application and the recording of the statement of Kausar Parveen (Petitioner No. 1), are not of any significance and liable to be ignored from consideration.

5.  As discussed hereinabove, the record does not show as to on which date such statement was recorded and also the fact, which has been noted earlier is to be reiterated here that the said statement never followed with any formal order of the learned Judge before whom Petitioner No. 1, stated to have made such statement.

6.  The crucial question for consideration in this matter is as to whether second marriage of the petitioners would be termed as “valid”, “void” or “irregular”.

7.  Although Mahomedan Law by D.F. Mullah is not a codified law, but to understand different problems, being faced by the Muslims in their personal life, the same is being followed by the Courts of our Country. Para-257 of such calculation viz. Mahomedan Law provides that a marriage with a woman before completion of her Iddat is irregular and not void. Iddat is described as the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death to remain in seclusion, and to abstain from marrying another husband. The abstinence is imposed to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. In case the marriage is dissolved by death, the wife is bound to observe the Iddat whether the marriage was consummated or not, and in case of dissolution of marriage by divorce, the wife is bound to observe the Iddat only if the marriage was consummated. If there was no consummation, there is no Iddat, and she is free to marry immediately.

8.  Before going further, it would be pertinent to mention here that, in the present case, at least since 23.05.2013, the date of filing of the first suit for dissolution of marriage by Petitioner No. 1, she at least had no matrimonial contact with Respondent No. 2 and, as such, when on 07.09.2013, the petitioners entered into a marriage, the period of Iddat, if any, to be observed stood already expired in favour of Petitioner No. 1 in obvious absence of any matrimonial link of Petitioner No. 1 with Respondent No. 2.

Such question has been considered by our superior Courts, which is being discussed, as follows:

(a)      In `Muhammad Riaz and another versus The State (2011 SD 581), our Federal Shariat Court, has held:

          “that period of Iddat is only a temporary impediment to remarriage by husband. It is a specific period oriented. It is a relative or temporary disability. Under Sunni Law, an unlawful conjunction by way of marriage during Iddat period renders the marriage irregular and not void. An irregular marriage automatically becomes regular the moment the bottleneck is removed i.e Iddat period expires”;

(b)      In 'Shoukat Ali and another versus The State' (2004 SD 190), the view taken in Para-257 of Mahomedan Law has been confirmed declaring the marriage of a woman before completion of her Iddat as irregular and not void by holding as under:--

          “that marriage entered into by divorced wife before completion of Iddat period would be irregular marriage and not void and that an irregular marriage cannot be treated as void marriage. Union of husband and wife in irregular marriage cannot be regarded as un-Islamic and against Shariah”.

The learned counsel for the petitioners, with reference to the above-noted judgments, has prayed for the quashment of FIR.

9.  The petition has been opposed vehemently and the learned counsel for Respondent No. 2 with the help of case-law reported as Syed Ali Nawaz Gardezi versus Lt.-Col. Muhammad Yusuf (PLD 1963 Supreme Court 51), Muhammad Sarwar and another versus The State (PLD 1988 Federal Shariat Court 42) and Mst. Kundan Mai versus The State (PLD 1988 Federal Shariat Court 89) has emphasized the requirement of notice of divorce within the meaning of Section 7 of Muslim Family Laws, Ordinance, 1961, in absence of which in view of the learned counsel for Respondent No. 2, Talaq would not be considered as effective.

10.  The point of issuance of notice and effect thereof under Section 7 of Muslim Family Laws Ordinance, 1961, has already been dealt with by the Courts of our Country, and by now, it is a settled position in this regard that on the validity of divorce, the absence of such notice would have no bearing.

11.  The learned Deputy Prosecutor-General, for the State, on his turn, has supported the petition on the basis of the contention that, presently offence under Section 10(2) of the Offence of Zina(Enforcement of Hudood) Ordinance, 1979, is no more an effective law, whereas, by elaborating the eventualities necessarily to be in existence in order to prove the commission of the offence of rape within the meaning of Section 375, PPC, which provides five eventualities i.e.,

(i)       the commission of rape against the will of the woman,

(ii)      without her consent,

(iii)     with her consent, when her consent has been obtained by putting her in fear of death or of hurt,

(iv)     with her consent when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married or

(v)      with or without her consent, when she is under sixteen years of age.

As such, in view of the learned Deputy Prosecutor-General, when the rape, as has been defined in the Pakistan Penal Code, 1860, is not made out, that cannot be punished under Section 376, PPC. Similarly, the learned Deputy Prosecutor-General has further argued that, no offence under Section 493-A, PPC again is not made out, which deals with the situation, where every man who deceitfully caused any woman, who is not lawfully married to him to believe that she is lawfully married to him and to cohabit with him in that belief.

12.  As to the criminality alleged regarding fornication under Section 496-B, PPC, the learned Deputy Prosecutor-General is of the view that; firstly, the offence of fornication also is not made out and; secondly, the procedure provided in Section 203-C, Cr.P.C., has not been followed, which provides that no Court shall take cognizance of offence under Section 496-B, PPC, except on a complaint lodged in a Court of competent jurisdiction. According to the learned Deputy Prosecutor-General and rightly so the offence under Section 496-B, PPC can only be brought into the notice of a Court by means of a complaint.

13.  What has been emerged from the above discussion is that the marriage of the petitioners, even if was considered as “irregular marriage” on 07.09.2013, the same has attained the status of “regular marriage” by efflux of time from the point, when Iddat period was supposed to have been expired with reference to the earlier marriage of Petitioner No. 1 with Respondent No. 2 and, as such, in complete agreement of the contentions raised by the learned Deputy Prosecutor-General, who has rendered valuable assistance to the Court, without adopting the role of a traditional Prosecutor, I am of the view that the criminal case registered through FIR No. 400 of 2014 has entirely been registered on wrong premises and no criminality is established even prima-facie connecting the petitioners with the alleged crime. If the FIR is permitted to remain in the field, it would not only a wastage of precious public time of the Courts, but also the wastage of the precious time of the investigating agency by overburdening the same, as would result in causing unjustified interference in the matrimonial life of the petitioners on the strength of a valid marriage. It will be not beneficial either for Respondent No. 2 or the prosecuting agency to allow further prosecution of said registered criminal case. No further proceedings on the basis of such FIR are allowed to be carried out by any forum or agency.

14.  Resultantly, this Constitutional petition is allowed and FIR No. 400, dated 20.09.2014, under sections, 375-iv, 376, 380, 457, 493-A PPC, registered at Police Station, City Jalalpur Pir Wala District Multan, is hereby quashed.

(R.A.)  Petition allowed

For more, you can consult omara.khan789@gmail.com or call +923123450006