NAZIR YASIN Versus YASIN FARHAT

1. This judgment will dispose of Criminal Appeal No.21 of 1997 filed by Mst. Nazir Yasin, complainant against the judgment dated 18‑12‑1996 passed by learned Magistrate Section 30, Lahore whereby Yasin Farhat son of Farhat Masih was acquitted of the charge under section 494/495, P.P.C.

2. Briefly stated that facts of the case were that Mst. Nazir Yasin, appellant, filed a complaint under section 200, Cr.P.C. alleging therein that she was lawfully married to Yasin Farhat on 18‑1‑1980 at Libya according to Christian rites with free consent of the spouses. Both the appellant and respondent remained as husband and wife till March, 1991, the respondent contracted second marriage with a lady, namely ,Rozina Juliat Yasin without obtaining the decree for the dissolution of marriage, Mst. Rozina gave birth to a daughter in U.C.H. (United Christian Hospital), Lahore, respondent filed a suit for dissolution of marriage under section 10 of the Divorce Act, 1869, appellant in the suit filed an application under Order VII, Rule 10, C.P.C. for rejection of the plaint and finally the plaint was rejected by learned Civil Judge vide order dated 23‑4‑1993, thereafter appellant moved an application on 28‑9‑1994 for registration of a criminal case against respondent under section 494/495 to the S.P. Cantt. who marked the same to the concerned S.H.O. but no action was taken, hence a complaint was filed.

3. After recording preliminary evidence, the learned trial Magistrate summoned the accused‑respondent, charge‑sheeted him to which he pleaded not guilty. The complainant produced five witnesses in support of her case who deposed that respondent has contracted second marriage during the existence of earlier marriage. Respondent produced three witnesses as D.Ws. including himself. Ire while appearing as D.W.3 got recorded his statement on oath under section 340, Cr.P.C. stating that the appellant‑complainant herself separated without any legal justification and that she avoided to give birth to any child and after a long period of 13 years, he contracted the second marriage. The learned trial Magistrate after considering the evidence brought on record by both the sides; acquitted the respondent under section‑245, Cr.P.C: vide judgment dated 18‑12‑1996.

2. Learned counsel for the appellant after going through the evidence' on record submits that the order of learned trial Court is illegal and against the record. He has referred to section 4 of the Christian Marriage Act, 1872 to submit that second marriage of the respondent with Mst. Rozina Juliat is totally illegal and void. Learned counsel has also made reference to sections 60(2) and 68 of the said Act. Reliance has also been placed on section 19(4) of the Divorce Act, 1869. Section 15 of the Special Marriage Act, 1872 provides the penalty on married persons marrying again. Learned counsel referred to statement of the respondent recorded under section 342, Cr.P.C. where he admitted to have contracted second marriage with Mst. Rozina Juliat without divorcing the present appellant and out of the said wedlock, that is, Rozina Juliat ‑there are two minor daughters. Learned counsel submits that as the marriage of respondent with Rozina Juliat is void, he is liable to be convicted under section 494, P.P.C. Reliance has been placed on the cases of Syed Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yusuf PLD 1963 Supreme Court 51, Mrs. Marina Jatoi v. Nuruddin K. Jatoi PLD 1967 Supreme Court 580. It is lastly submitted that the prosecution has proved its case against the respondent but the learned trial Court acquitted the respondent on wrong premises.

3. On the other hand, learned counsel for the respondent submits that the judgment of the learned trial Court was justified on record. He has referred to Preamble of Special Marriage Act, 1872 to submit that this Act is not applicable to the Christians. Learned counsel submits that Nikah of the present appellant with respondent was not solemnized in Pakistan but at Libya by an Egyption Priest, so section 4 of the Christian Marriage Act, 1872 is not applicable in the instant case. Further submits that respondent belongs to Methodist Church and not from Roman Catholic so he could have entered into second marriage and there is no restriction on it. Also submits that there was no mens rea on the part of the respondent when he married second time. According to the learned counsel under the Christian Marriage Act, 1872 no penalty is provided and that according to D.W.1 Danial Taslim who was Bishop of Methodist Church, there was no restriction on second marriage. Learned counsel submits that Bible is compilation of different books and it was Jewish Scripture and now it is Christian script. He has also referred to many portions/verses of the Bible and according to him in the old testament, polygamy was allowed. Reliance is placed on PLD 2000 FSC 1(53). Learned counsel submits that even in the Jewish Script; polygamy was not disliked. He submits that according to Chapter III, page 3 of the Bible only the Bishop could not have contracted the second marriage but for an ordinary Christian, there was no such restriction. Further submits that respondent has not committed any offence whatsoever and he was right in entering into second marriage with Mst. Rozina Juliat. Concluding his arguments, learned counsel submits that the present appellant had left the respondent in 1991 as his wife, so she cannot claim any relief from this Court.

4. The only question involved in this case is whether according to Christian Marriage Act in the presence of first. marriage between a man and woman any Christian man or a woman can enter into second marriage. After going through the relevant provisions of law and the arguments advanced by Rev. Dr. Alexander John Malik, Bishop of Lahore, I am of the considered view, that marriage of respondent with Mst. Rozina Juliat without divorce is void and the act of respondent is punishable under section 494, P.P.C. For this decision, I would like to place reliance on section 4 of the Christian Marriage Act, 1872. For facility, the same is reproduced below:

5. "4. Marriage to be solemnized a ccording to Act. ‑‑Every marriage between persons, one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provision of next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void. "

6. A bare perusal of the above‑quoted section would show that marriage of respondent is void because he entered into second marriage with Mst. Rozina, Juliat without divorcing ‑the appellant which is not allowed in the Christian faith. It may be noted here, that subsection (2) of section 60 of Christian Marriage Act would also be of greater help which is also reproduced hereunder: ‑‑

7. "60. On what condition marriages of Native Christian may be certified. ‑‑Every marriage between Native Christian applying for a certificate shall, without the preliminary notice required under Part‑III be certified under this Part, if the following conditions be fulfilled, and not otherwise:‑‑‑

(1) The age of the than intending to be married shall exceed 16 years, and the age of the woman intending to be married shall exceed 13 years.

(2) Neither of the p ersons intending to be married shall have a wife or husband still living ; (Underlining is mine).

(3) "

8. So, according to subsection (2) of section 60 marriage of respondent No. l with Mst. Rozina Juliat is void. At this stage, I would also like to mention subsection (4) of section 19 of the Divorce Act, 1869, which reads as under:

9. "19. Grounds of decrees.‑‑ Such decree may be made on any of the following grounds:‑‑(1) that the respondent was impotent at the time of marriage and at the time of institution of the suit; (2) that the parties are within prohibited decree of consanguinity (whether natural of legal), or affinity; (3) the either party was a lunatic or idiot at the time of the marriage; (4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force."

10. A perusal of the above‑quoted section, that is subsection (4) of section 19 makes it abundantly clear that second marriage is not allowed in Christian faith without divorcing the first wife or the first wife has met her death. To clinch the controversy involved in this matter,, the written views submitted by Bishop of Lahore are of utmost importance and the same are reproduced below:

11. "I would like to discuss Christian Marriage under two issues. They are:‑‑

(A) Is Christian Marriage Monogamous or Polygamous?

(B) Is divorce allowed in Christian Marriage? If 'yes', then, on what grounds?

12. I will take and discuss all two in the light of the scripture

(A) Is Christian Marriage Monogamous or Polygamous?

13. As we find a few instances of polygamy in the Old Testament the Jewish scripture, especially of King David or of King Solomon and of some of the Patriahs, some people immediately jump to the conclusion that the Christians are allowed to marry more than one wives. But when we look at the scripture a little carefully, we find that the Christian marriage is a monogamous one, and that God right from the beginning intended marriage to be between one man and one woman for life long union. I would like to quote the following reference from the scripture:

(i) God in the beginning created one wife (Eve) for Adam (Genesis, Chapters 1 and 2). If God intended more wives for man, He would have created more but he created only one.

(ii) At the time of instituting marriage, God said, "Therefore, a man leaves his father and his mother and cleaves to his wife, and they shall become one flesh" (Genesis 2:24). A man and a wife, not wives. The noun is singular.

(iii) In the last book of the Old Testament the Jewish scripture known as Malachi, the above point is emphatically underlined in the following words:‑‑

(iv) In the New Testament also monogamous nature of marriage is emphasised. The scripture says:

14. "For this is the will of God, your sanctification: that you abstain from unchastity; that each one of you know how to take, a wife (one wife not wives) for himself in holiness and honour, not in the passion of lust like heathen who do not know God (1‑Thessalonians 4:4‑5).

(v) In 1‑Timothy 3:2, the scripture says, 'Now a bishop must be above reproach, the husband of one wife, temperate, sensible ....'

15. Some times some people say that this restriction of monogamy is only for the Bishops which is not right as the same monogamous marriage is asked for Deacons as well e.g. in 1‑Timothy 3‑12 the scripture says,

(vi) Let deacons be the husband of one wife...'

16. Some might say that monogamy is only for the religious leaders and not for the others. This is also quite flimsy as the scripture ,very clearly says,

(vii) ' ....appoint elders in every town as I directed you, if any man is blameless, the husband of one wife...' (Titus 1:6) It says any man, not a Bishop or a deacon but any man and then husband of one wife. Also in 1‑Thessalonians 4:4‑5 says, 'that each one of you know how to take a wife for himself in holiness and honour...'

(viii) In 1‑Cornthian 7:2, the scripture says; ' each man should have his own wife and each woman her own husband' (Own wife not wives, own husband not husbands). "

17. Vows and promises which are made at the time of wedding, the solemnization of marriage also indicate that Christian marriage is monogamous. For example, one of the vows reads; Addressing the man: "will thou have this woman (specify by the name) to thy wedded wife, to live together according to God's law in the holy estate of matrimony? Will thou love her, comfort her, honour and keep her, in sickness and in health? and, forsaking all other, keep thee only unto her, so long as ye both shall live ?

18. The second vow/promise is as follows:‑‑

19. "______________take the________________ to my wedded wife, to have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and in health; to love and to Cherish, till death us do part, according to God's holy law; and there to give them my truth" (prayer book, pp.638‑639).

20. The Church laws with regard to marriage are that Christian marriage is monogamous and polygamy is prohibited at any stage of a believer's life and under any circumstances. For example, the marriage law of the Church of Pakistan says:

21. " Marriage Indissoluble Union .‑‑The Church of Pakistan declares its belief that our Lord's principle and standard of marriage is a life‑long and indissoluble union for better or for worse of one man with one woman to the exclusion of all other on either side" (Law Relating to Christian Marriages in Pakistan, Emmanuel Zafar, Eastern Law House, p.102). Similarly, the marriage law of the Church of England (Anglican Church) says:

22. "The Church of England affirms, according to our Lord's teaching that marriage is in its nature a union permanent and life‑long, for better for worse, till death them do part, of one man with one woman, to the exclusion of all others on either side . ...." (ibid, p.106).

23. The conclusion on the first issue, whether Christian marriage is monogamous or polygamous, is that it is monogamous i.e. one man. one woman life‑lop union to the exclusion of all others. Polygamy is am is certainly not lawful according to the teachings of Jesus Christ and the Christian laws relating to the Christian marriage

(B) Is Divorce allowed in Christian Marriage? If 'Yes' then, on what grounds?

24. The scripture is very clear on this issue. In short no divorce except on the ground of adultery or unchastity. The scripture says:

25. "He (Jesus) said to them, 'For your hardness of heart Moses F allowed you to divorce your wives, but from the beginning it was not so. And I say to you; whoever divorces his wife, except for unchastity, and marries another, commits adultery" (Matthew 19:8 9). And there are other verses in the scripture saying practically the same, e.g. Mark 10: 2‑9, Matthew 5:32; Mark 10‑11‑12; Luke 16; 18; I‑Corinthians 7:10."

26. The Lord Jesus Christ made it very clear that divorce was permitted in the Old Testament the Jewish scripture because of the hardness of people's heart. But it did not imply divine endorsement. For the Christian divorce is forbidden except on the grounds of adultery or to some degree on the ground of desertion.

27. A perusal of the views of the Bishop of Lahore suggests that second marriage is prohibited in Christian Faith and that divorce can be made or can be effective on the ground of adultery or to some decree on the ground of desertion.

28. In view of the above7quoted provisions/sections of the Christian Marriage Act, 1872, Special Marriage Act, 1872 and Divorce Act, 1869, the valuable assistance rendered by Bishop of Lahore and the precedents cited, I am of the considered opinion that the marriage of respondent with Mst. Rozina Juliat was void and he is guilty of the offence under section 494, P.P.C. Resultantly this appeal is accepted, order of the learned trial Court acquitting the respondent is set aside and the respondent is convicted under H section 494, P.P.C. and sentenced to four (4) years' R.I. with a fine of Rs.20,000 and in default of fine to undergo further R.I. for six (6) months. The amount of fine, if recovered, shall be paid to the appellant. Yasin Farhat, respondent, shall be taken into custody to serve out the period of his sentence.

29. Before parting with this judgment I am thankful to Rt. Rev. Dr Alexander John Malik, Bishop of Lahore who appeared pursuant to order passed by this Court and addressed oral arguments as well as submitted his written views. It may also be mentioned here that learned counsel for both the sides addressed arguments on couple of dates of haring and assisted me in arriving at a conclusion, as stated above.

30. M.B.A./N‑26/L Appeal accepted.