FARZAND ALI Versus RAJA MUHAMMAD IBRAHIM

This Criminal Constitutional Revision preferred by Farzand Ali (petitioner No‑1, son of Allah Diya and Mst. Ferozi (petitioner No.2) daughter of Muhammad Sultan, wife of Farzand Ali, residents of village Noor Shah, Tehsil Karor Pukka, District Lodhran is directed against the, order dated 3‑8‑1995 passed by learned Additional Sessions Judge, Lodhran, on a complaint, filed by Rana Ibrahim under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 hereinafter referred to as the said Ordinance, whereby the petitioner have been summoned through bailable warrants to face trial under section 5/10(2) of the said Ordinance.

2. Briefly stated the complaint filed by Rana Ibrahim, the complainant (herein respondent No.1), inter alia, contained the allegation that the petitioner Farzand Ali who was already married to Mst. Wakeela, daughter of Fazal Ahmad from his first wife Mst. Ulfat Bibi, married Mst. Ferozi (herein petitioner No.2) who was widow of said Fazal Ahmad. It is also alleged that Farzand Ali (petitioner No.1) cannot marry Mst. Ferozi, petitioner No.2 being step‑mother of his wife Mst. Wakeela, as unlawful conjunction of mother of her daughter in marriage at the same time is prohibited in Islam. The complainant Rana Ibrahim requested for proceedings against the petitioner under the provisions of the said Ordinance and thereupon the aforementioned impugned order was passed.

3. This Revision Petition was on 31‑1‑1996 admitted to regular hearing with a notice to the respondents and in the meanwhile further proceedings in the said complaint were stayed. The petition was subsequently fixed for regular hearing on several dates and was finally heard on 26‑3‑1996 when the judgment was reserved.

4. I have heard learned counsel for the parties and have perused the record with their assistance. It appears that in view of the complainant the petitioner cannot lawfully marry each other as step‑daughter of petitioner No.2 was already married to petitioner No. l and was still living with him as his wife. This view apparently based on the principle of Islamic Injunctions wherein it has been held that a man is prohibited to have at the same time two wives who are inter se sisters, aunt and niece or are so related to each other that if either of them had been a male they cannot have lawfully inter‑married, is however, not correct and has been wrongly interpreted/applied in the instant case.

5. It is pertinent to mention that Islamic law as contained in the Holy Qur'an and Sunnah of the Holy Prophet has ordained the institution of marriage, sanctioning thereby sexual relations between male and female, besides other objectives, to preserve human species, encourage chastity, promote love and union and restrain the couple from debauchery. For this purpose the institution of Nikah has been organized by enunciating certain principles, providing, guidelines and issuing certain instructions. These principles have marked the difference between lawful and unlawful marriages by categorising them as valid. irregular and void. Certain conditions and restrictions have been imposed, which if violated, bring the marriages into one of the aforementioned three categories. One of the prohibitions imposed in Islamic injunctions, in this connection, is the principle that a man cannot marry at the same time two wives who are so related to each other by consanguinity, affinity or fosterage that if either of them had been a male they could not have lawfully inter‑married. This principle finds mention in the Holy Qur'an in the following words:‑‑

"(Prohibited to you (for marriage) are ... ...two sisters in wedlock at one and the same time ... ... ... ....)."

According to this Qura'nic text, a particular restriction has been imposed on the right of a man to marry and thus he cannot keep two sisters in his marriage at the same time. This principle has been further expanded by the Sunnah of the Holy Prophet (p.b.u.h.) who has prohibited marriage of aunt and niece together at the same time. The Holy Hadith reads as under:‑‑

"(Abu Huraira reports that the Holy Messenger of Allah forbade to keep a woman and aunt (sister of father and sister of mother) to wedlock at one and the same time."

6. Based on these aforementioned Injunctions of Qur'an and Sunnah the Muslim Jurists have unanimously held that a man cannot have at the same time two wives who are so related to each other that if either of them had been a male they cannot have lawfully married each other. For details see:

7. It may be pertinent to mention here that according to this principle both the females who are riot to be kept in marriage at the same time are required to be such that each of them if considered to have been a male cannot have lawfully inter‑married the other. In the instant case although the step‑daughter, had sloe been a male, could not have lawfully inter‑married the wife of her father on account of the Qura'nic injunction that the son‑ is debarred from marrying the woman who has been the wife of his father (IV: 22) however, the position if reversed, her step‑mother, had she been a male could have lawfully married her step‑daughter as there is nothing on record to show that she is related to her step‑daughter by consanguinity, affinity or fosterity. Therefore, the Muslim Jurists in majority opinion have held that combining daughter and her step mother in marriage at the same time is lawful. Imam Zufar has opposed that e view but the majority view having been accepted by the jurists on this point has prevailed and held the field. This view finds mention in the books, as mentioned hereinunder:‑‑

Relevant portion from ( Majmooa Qawanin Islam) Volume I by Mr. Justice (Retd.) Tanzil‑ur‑Rehman is reproduced hereinunder for easy reference as it may be enlightening on the subject:

8. It is thus evident that although there has been a relationship between Petitioner No.2 and Mst. Wakeela in the past, as petitioner No.2 was the wife of her father, however, after the death of her father, petitioner No.2 is completely stranger to her having no relationship of consanguinity, affinity and fosterage with her. Had petitioner No.2 been otherwise related to Mst. Wakeela with the aforementioned ties, her marriage with petitioner No.1 in subsistence of his marriage with Mst. Wakeela would have been unlawful. However, in the absence of any other relation, Nikah of petitioner No.2 with petitioner No.1 cannot be held unlawful, as stated above, merely on the ground that petitioner No.2 has remained wife of the father of Mst. Wakeela.

9. Consequently for the reasons stated above, the inter se marriage of both the petitioner is valid and no case is made out against them under any provisions of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Therefore. I allow this petition and set aside the impugned order dated 3‑8‑1995 passed by learned Additional Sessions Judge, Lohdran. The said proceedings against them are quashed.

N.H.Q./1052/FSC

Revision petition allowed.