ZAMURRAD PERVAIZ and another Versus THE STATE
This matter arises from a criminal petition seeking post-arrest bail in a case registered under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 following a complaint by the petitioners' son regarding their marriage. The core legal questions involve the validity of a Nikah Registrar cancelling a marriage contract and whether lack of consent from an existing wife constitutes an offence cognizable by the police under the Hudood Ordinance. The Lahore High Court held that a Nikah Registrar has no lawful authority to cancel a solemnized Nikah, which can only be dissolved by divorce or a Family Court, and that lack of consent from an existing wife falls under the Muslim Family Laws Ordinance, 1961, which is not cognizable by the police and requires a direct complaint. The court laid down the principle that marriage disputes regarding consent without legal dissolution do not constitute Zina, and allowed the bail application subject to surety.
- Whether a Nikah Registrar has the lawful authority to cancel a solemnized Nikah?
- Can a marriage without the consent of an existing wife be treated as an offence under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979?
- Is a violation under the Muslim Family Laws Ordinance, 1961 cognizable by the police without a formal complaint to a court?
- 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 D.I.‑G. 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 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 F.I.R., the application was received on 14‑1‑2004 and the D.S.P. (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 F.I.R. No.6 dated 15‑1‑2004 at Police Station Civil Lines, District Jhelum. The petitioners were arrested. Their bail application has been dismissed by a learned Additional Sessions Judge, Jhelum, on 30‑1‑2004.
2. Learned counsel for the petitioners contends that it is in the F.I. R. 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 F.I.R. 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 cognizable 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 Criminal Miscellaneous 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.
N.H.Q./Z‑6/L Bail allowed.