MUSHTAQ AHMAD vs THE STATE
This petition for post-arrest bail arises from a case registered under Sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The complainant alleged that the petitioner abducted his sister-in-law for the purpose of committing Zina. The core legal question before the Lahore High Court was whether the petitioner's marriage to the sister of his first wife, contracted before the expiry of the first wife's Iddat period following an irrevocable divorce (Talaq-e-Bain), constitutes a valid marriage under Islamic law or attracts criminal liability under Section 10(2) of the 1979 Ordinance. The court held that where a consummated marriage is dissolved by irrevocable divorce, a husband cannot validly contract a marriage with the sister of his former wife during the latter's Iddat period. The court concluded that the petitioner's marriage during Iddat was invalid, prima facie attracting an offence under Section 10(2) of Ordinance VII of 1979, which falls within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. Consequently, the bail application was dismissed.
- Whether a man can validly contract marriage with his wife's sister before the expiry of the wife's Iddat period following an irrevocable divorce?
- Does contracting a marriage with a wife's sister during the wife's Iddat period prima facie constitute an offence under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979?
- Is an offence under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 subject to the prohibitory clause of Section 497 Cr.P.C. for bail purposes?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' The petitioner seeks bail in a case registered against him and others vide F.I.R. No,537, dated 6-9- 2000 for an offence under sections 10/11 of Ordinance (VII of 1979) at Police Station Nishatabad, Faisalabad.
2. The report was lodged by Muhammad Zafar, complainant stating therein that his brother-in-law Mushtaq Ahmad petitioner alongwith Ashiq Hussain and Muhammad Iqbal co-accused had abducted his other sister Mst. Nazia Nasim for committing Zina with her. During the course of investigation, the abductee was also arrayed as an accused.
3. I have heard the learned counsel for the parties. The case was firstly, investigated into by Zulfiqar Ali, A.S.-I. Who recorded the statement of Mst. Taj Bibi on 6-9-2000 under section 161 of the Cr.P.C.
She stated that on 19-7-2000 her husband Mushtaq Ahmad took alongwith him her sister Mst.
Nazia Nasim in order to leave her at her house situated at Samundari Road but Mst. Nazia Nasim was not taken to her house; that she was abducted by Mushtaq Ahmad and that she (Mat. Taj Bibi) was not divorced by Mushtaq Ahmad verbally or in writing and that she is still his wife. He also interrogated Mst. Nazia Nasim on 30-10-2000. She stated that her sister Mst. Taj Bibi was divorced by Mushtaq Ahmad on 20-3-2000; that thereafter she was married to Mushtaq Ahmad with the consent of her family members on 29-3-2000 and that a false case was got registered against Mushtaq Ahmad by her brother in order to pressurize him to accept uncalled for demands of his brothers. Thereafter, the investigation was entrusted to Malik Khizar Hayat, S.-I. Who came to the conclusion that Mst. Taj Bibi was divorced by her husband in writing on 20-3-2000 and thereafter, Mushtaq Ahmad contracted marriage with Mst. Nazia Nasim on 29-3-2000. He prepared a report for cancellation of the case on 17-11-2000. The D.S.P./S.D.P.O. Circle Civil Lines also agreed with the said report. The D.S.P. (Legal) expressed the view that the second marriage was contracted before the expiry of period of Iddat and recommended that the matter be got investigated in relation to the said question. A.S.-I. Present in the Court states that now investigation is with the Range Crime, Faisalabad.
4. Prima facie, the material collected during the course of investigation shows that Mst. Nazia Nasim was not abducted by the petitioner and that her Nikah was performed with the petitioner on 29-3-2000 after he had pronounced Talaq-e-Bain against his wife Mst. Taj Bibi. Hence the petitioner is not guilty of committing Zina-bil-Jabr. The other question whether the petitioner's marriage with the sister of his first wife during the period of Iddat is valid, on the facts of the present case is not free from difficulty. Learned counsel for the complainant has relied on the judgment reported as Muhammad Arif v. State PLD 1982 FSC 292 to urge that if a person divorces his wife through revokable or irrevokable divorce and contracts marriage with the sister of his wife during the period of Iddat, his Nikah is not valid and he will .Be liable to punishment by way of Tazir. Under the Islamic Law the effect of irrevokable Talaq is that a wife can marry another man and the husband another woman immediately if the marriage was unconsummated and after the expiry of the Iddat if it was consummated. In the present case, the petitioner's marriage with Mst. Taj Bibi was consummated and six children were born out of the wedlock. Hence the petitioner's Nikah with Mst. Nazia Nasim before the expiry of the period of Iddat of Mst. Taj Bibi was not valid. The offence, prima facie, falls under section 10(2) of Ordinance VII of 1979 which is covered by the prohibition under section 497 of the Cr.P.C.
5. For the foregoing discussion, the petitioner is not entitled to concession of bail, hence his bail petition is dismissed.
Cited by 1 case
- ROBINA FIRDAUS vs MUHAMMAD ALI BABAR and anothers 2004 YLR 2875