ABDUL KALAM vs THE STATE
This criminal appeal arises from the conviction and sentence of the appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by the IXth Additional Sessions Judge, East Karachi, to 15 years' rigorous imprisonment and 30 stripes of whipping. The core legal question concerns the validity and proof of a marriage (Nikah) where the Nikah was not formally registered and the registration records were disputed. The Federal Shariat Court held that the registration of a Nikah is not a mandatory prerequisite for its validity under Islamic law or section 5 of the Muslim Family Laws Ordinance, 1961, as non-registration only attracts a penalty and does not invalidate the marriage itself. The court established the key principle that under Muslim law, a Nikah is validly performed through offer and acceptance in the presence of witnesses, and registration is merely a subsequent administrative requirement rather than the substantive proof of marriage. The appeal was accordingly allowed, and the conviction and sentence were set aside.
- Is the registration of a Nikah a mandatory prerequisite for its validity under Muslim law?
- What are the legal consequences of non-registration of a marriage under the Muslim Family Laws Ordinance, 1961?
- Can a marriage be proven in the absence of an official Nikah register entry if witnesses testify to the offer and acceptance?
- Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 5, Muslim Family Laws Ordinance 1961
- Section 5(4), Muslim Family Laws Ordinance 1961
GUL MUHAMMAD KHAN,-C.J.--- The IXth Additional Sessions Judge, East Karachi convicted the present appellant under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to 15 years' R.I. With whipping numbering 30 stripes. He came up in appeal originally on 27-3-1985 when the case was sent back, in the light of the observations made by the Supreme Court, in the case Muhammad Azam v. The State PLD 1984 SC p.95, as the defence taken was that alleged abductee was the lawfully wedded wife of the appellant. The case has now come back to us with the only improvement that the Court summoned Ashiq Ali a Clerk of the office of the Nikah Registrar and C.W.2 Abdul Rauf and expert of Finger Print Bureau, Karachi. The Handwriting Expert stated that he could not compare the thumb-impression of Mst. Khadija as the same was not in a shape. Ashiq Ali C.W.1 stated that the Nikahnama as produced was not registered and even there was no Nikah Register by the name of Muhammad Alam authorised to perform Nikah.
2. We have heard the learned counsel for the parties. It is contended on behalf of the appellant that age of the girl is 16/17 years according to Mst. Lal Mati, P.W.1 the mother of the victim. Her Nikah is proved by the three witnesses against whom nothing has been said in the cross-examination. The learned counsel for the State contends that as the Nikah was not registered and was not found in the register presented by Ashiq Ali and the thumb-impressions are also not found to be that of Mst.
Khadija the Nikah is not proved.
3. After hearing the learned counsel we find that undoubtedly the trial Court has not taken pains to go into the matter deeply as it should and has not summoned Nikah Registrar but this case has to be decided here and cannot be again postponed. The statement of C.W.1 Ashiq Ali has no consequence as Muhammad Alam is not Nikah Registrar but a NikahKhawan. The statement of defence witnesses on the other hand do not stand discarded for anything in the cross- examination. Even the character of these witnesses has not been impeached. Rather, the statement of Mst. Khajida that she was taken to the house of Muhammad Ilyas and he was .
Present with two other persons including one old man itself supports the fact that she might have entered into Nikah. It is to be noted that Ilyas is one of the witnesses of the Nikah. Further, the statement of Mst. Lal Mati, P.W.1 also does not inspire any confidence as she stated that she, her husband and the male children went to the feast but left their daughter aged 16/17 at home.
4. The registration of Nikah is not necessarily the proof of Nikah. According to section 5 of the Muslim Family Laws Ordinances 1961 the Nikah takes place and it is then to be registered. In the Muslim Law "Nikah" can be performed by offer of acceptance in the presence of witnesses. The non-registration only attracts a penalty under section 5(4). We, thus, find no error in the Nikah itself.
The result is that this appeal is allowed, the convictions and sentences are set aside and it is directed that the appellant shall be released forthwith unless he is wanted in any other case.