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..............
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2016 C L C 717
[Lahore]
Before Hafiz Shahid Nadeem Kahloon, J
MUHAMMAD SHER----Petitioner
Versus
ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, DISTRICT KHUSHAB and 6
others----Respondents
Writ Petition No.19045 of 2011, heard on 11th September, 2015.
(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.
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