ZAMURRAD PERVAIZ and another vs STATE
This matter concerns a post-arrest bail application filed by two petitioners, Zamurrad Pervaiz and another, who were charged under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, following an FIR alleging that their marriage was invalid due to the cancellation of their Nikahnama by a Nikah Registrar. The core legal question was whether the petitioners could be charged with Zina when a marriage contract existed and whether a Nikah Registrar possesses the legal authority to cancel a Nikah. The Court held that the petitioners were entitled to bail, observing that no Nikah Registrar has the lawful authority to cancel a marriage once performed. The Court clarified that a marriage can only be dissolved through divorce or by a competent Family Court. Furthermore, the Court noted that allegations regarding a lack of consent from an existing wife fall under the Muslim Family Laws Ordinance, 1961, which is not cognizable by the police and requires a complaint by the aggrieved party. Consequently, the bail application was allowed.
- Does a Nikah Registrar have the lawful authority to cancel a Nikah?
- Can the police take cognizance of an offence under the Muslim Family Laws Ordinance, 1961?
- How can a marriage once performed be legally dissolved?
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Muslim Family Laws Ordinance 1961
ORDER
On 15.1.2004 Lt. Muhammad Arslan complainant filed an application before DIG, Rawalpindi, stating that his father Zamurrad Pervaiz, Petitioner No, 1 is serving as District Registrar, Mirpur, Azad Kashmir and the Petitioner No, 2 who is a divorced lady had hooked him. On 5.6.2003, the petitioners were married without the permission of his mother whereupon the Nikah Registrar was cancelled the Nikahnama. But despite the cancellation of the Nikahnama the petitioners are living together as husband and wife . He then expressed the apprehension that the lady may leave the country alongwith his father which will cause mental agitation to the members of the complainant's family.
According to the police proceedings noted on this FIR, the application was received on 14.1.2004 and the DSP (Legal), Rawalpindi, has opined that a case under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is made out. A case under Section 10(2) of the said Ordinance was accordingly registered vide FIR No, 6 dated 15.1.2004 at P.S. Civil Lines, District Jhelum. The petitioners were arrested. Their bail application has been dismissed by a learned ASJ, Jhelum, 30.1.2004,
2. Learned counsel for the petitioners contends that it is in the FIR itself that the petitioners are married. According to him, there is no provision under which a Nikah Registrar can cancel a Nikah.
Learned counsel for the State finds it difficult to oppose this bail application.
3. I have gone through the available records. Now I have reproduced above the contents of the said FIR. According to the said contents the petitioners were married on 5.6.2003. Copy of the Nikahnama, admittedly executed by the parties and witnesses, etc. is available. Needless to state that no Nikah Registrar has any lawful authority to cancel the Nikah. Nikah once performed between the parties can be dissolved either by the husband by pronouncing divorce in the manner prescribed or by a competent Family Court upon the application of the wife. I am told by the police official present with reference to his record that the said Nikah Khawan has made a statement later on that he did perform the Nikah. So far as the allegation that the existing wife had not consented to the said marriage is concerned, the same is not at all a subject matter of the said Ordinance of 1979. This is an offence constituted under the Muslim Family Laws Ordinance, 1961, which is not congziable by police at all and it is only upon the complaint of an existing wife or wives that a Court can take cognizance and proceed in the matter. The Cr. Misc. is accordingly allowed and the petitioners are granted bail subject to their furnishing of bail bonds in the sum of Rs.
30,000/- each with one surety each in the like amount to the satisfaction of the learned trial Court.