1. ' The appellant brought a suit for the restitution of conjugal rights against respondent No, 1 on the 12th of June, 1976, The suit was resisted by the defendant on the plea that the marriage in question had taken place during Iddat. The Sub-Judge decreed the suit while the District Judge has vide his judgment and decree dated the 5th of February, 1979, accepted an appeal and dismissed the suit.
2. The husband has now come in second appeal to this Court.
3. ' A perusal of the trial Court file shows that the respondent Nasim. Akhtar was first married to another `Miskin' who divorced her in writing on the 8th of June, 1975. According to a photostat copy of the Nikahnama, the 2nd Nikah took place on 13th June 1975 ; thus no real argument except technical hair-splitting could be raised by the learned counsel for the appellant, about the two fundamental dates in issue, namely, the date of divorce and the date of second marriage.
4. ' On the 18th of January 1976 an application was moved before the District Mufti at Muzaffarabad, an institution officially established and maintained in A. K. Since 1949, requesting for a Fatwah. He held that in the eyes of law, no marriage existed between the parties. The respondent's witnesses, Muhammad Aziz and Bagga Khan have both stated that divorce took place on the 8th of June and the second marriage on 13th of June. Nasim Akhtar has made a confusing statement, typical of weak-minded women. It seems she was under the influence of her first husband or perhaps, having gone through the mill of a second marriage, she had become wiser and discovered the virtues of first wedlock. But in her girlish enthusiasm to demonstrate total loyalty to the first man in her life, she even denied her talaq but in cross-examination, thanks to the foresight of Mr. Bashir Ahmed Farooqi, the learned counsel for the new husband, the opportunity of admitting its execution came her way, a second time. The plaintiff has produced Ghulam Rasul, Abdul K ahim and has himself entered the witness-box. Ghulam Rasul and Abdul Rahim only speak of the plaintiff having been married to the defendant. The plaintiff has said that his Nikah took place on 12th of June, and that she lived with him for two months. He admits that subsequently when he succeeded in securing the possession of the girl, her father brought out a warrant under section 100, Cr. P. C.
5. And that she did tell the Court that she had been forcibly detained and went away with her father.
6. It is, therefore, established beyond any doubt that the appellant was married to the respondent during her Iddat.
7. Muslim Law provides a minimum interval for a Muslim woman divorcee or widow both-between the date of the husband's death or divorce, and the date on which she becomes entitled to exercise her right of remarriage. It is laid down in Surah II of the Holy Qur'an. The interval is called Iddat.
8. (Allama Yusuf Ali's translation Surah II, verses 228-232). This therefore is a temporary prohibition against remarriage there are a large number of other instances of prohibition against marrying a particular woman. According to Fatawa-i-Alamgiri, prohibited marriages may be broadly divided into two categories the Batil and Fasid marriages. Batil mean those which have no legs to stand upon, those that are void ab origin the English term unanimously employed by different commentators is 'Void'. In this category come those that are perpetually prohibited such as marriage with one's full sister. Under Fasid marriages are grouped those that suffer from a temporary bar, such as :
(1) Marriage with a woman in the state of `Iddat'.
(2) Having two sisters in wed-lock at the same time.
(3) Contracting for more than four wives when four are already in wed-lock.
9. ' The Rule of Iddat appears to have been provided for the following reasons
(1) Even in the case of a woman not apparently pregnant, the true position may not be correctly known for some time. A waiting period was therefore necessary to ascertain the position so that if a child is subsequently born, his paternity may not be jeopardized. Bastardy has been and still remains as one of the most condemned social disabilities. In our society, this social shame goes from generation to generation, making the lives of such people and their descendants a most miserable lot. The doctrine of 'Iddat' seeks to obviate this distressing situation.
(2) In the case of divorce, the first husband may repent his unilateral, arbitrary action and may want to take back his wife and even she may, at the same time, be prepared to return to his roof because the interval may result in the surfacing up of the virtues of one another. It may be noted that Islam gives the husband the right to divorce his wife, without recourse to a neutral like the Courts. It will also be noted that the greatest longing of a woman is the security of a home, she can call here and that is why she would generally like to continue the union, even at the cost of a lot of self-sacrifice. Therefore, in the matter of divorce, she may have been totally innocent as usual she is and may want to return to her husband's roof say be, she really loves him and, therefore. a compulsory interval, of, say a hundred days, would not only cool down the husband's rashness resulting in the arbitrary act of divorce but also protects the woman from taking a rash decision of an immediate marriage, in revenge of under provocation or manipulation by others. In case of prognancy, the birth of a child could by itself revive their interest in their union.
(3) In the case of husband's death, the waiting period of 130 days also seeks to emphasise that the marriage tie was, after all, not merely a brutal relationship but on a much higher plan, representing some of the noblest values in the human existence. That is why widows are required not to resort to a full make-up and men are forbidden from directly asking for their hand during Iddat.
10. ' The word 'Fasid' has been differently translated into English by different authorities. It has been generally translated as irregular. In AIR 1926 Oudh 231, AIR 1935 Lah. 622 decided by Addison and Din Muhammad, JJ. And PLD 1962 Lah. 531 decided by a D. B. Including Mr. Justice Yaqub Ali Khan, it has been translated as invalid. Sir Ameer Ali has also used the term 'invalid'. In AIR 1928 Oudh 231 Pullan, J .Has translated it as `Vitiatedi' In (1893) 23 Cal. 130 it has been translated as 'vicious'. As observance of Iddat is compulsory, marriage in its violation has been termed as invalid but as some legal consequences flow from it as they flow from valid marriages; others have termed them as merely irregular. Obviously, the two terms do not convey the same meaning.
11. The word 'Fasid' seems to have been derived from the word 'Fasad' which has been used in the Holy Qur'an several times and which mean disruption or disturbance of an orderly society as ordained by God. Allam Yusuf Ali has used the English term 'mischief'. (See V. I page 100). A Fasid marriage would, therefore, mean neither strictly an irregular marriage nor an invalid one but a marriage that is disruptive or disturbive of the orderly society as ordained in the matter by God. Perhaps, the word 'irregular' tends to minimise the importance of the breach of the rules enjoined in the Holy Qur'an ; the word is rather mild and in a society as ours where there is hardly anything 'regular', it tends to be rather permissive or at least, not discouraging. Invalid at the same time seems to be a strong word, at least, in so far as, marriage during 'Iddat' are concerned, in view of its accepted legal consequences such legitimacy of children born to the couple.
12. ' The parties are Hanafis as neither has set up a contrary claim. The most authoritative treatise on the Hanafi School of law acknowledgedly is 'Fatawa-i-Alamgiri'. Scott, C. J. Has in AIR 1917 Born. 211, compared it with the Institutes of Justinian; in a spirited defence of its authoritative character, the great Judge stated : "The Fatawa-i-Alamgiri stands in much the same relation to the Muhammadan Law, first revealed, it is true, but later going through a long process of traditional interpretation and resultant moulding in the hands of sages and learned lawyers, as the Institutes of Justinian stood to the Roman Law which had proceded them. The Fatawa-iAlarngiri was an authoritative exposition of what the Mohamedan law was, at a time when Mohamedanism was at the height of its power in this country."
13. ' The questions that now need consideration are the following :-
(1) What is to be done in case of marriage during Iddat' if either of the parties wishes to get out of it ?
(2) Would the consummation of such marriage make any difference to the right of the either party to cancel it ?
(3) Does the prohibition cease to operate after 'Iddat' expires and does such expiry ipso facto, clothe the union with validity, as urged on behalf of the appellant. Naturally the foremost authority, one would rely upon, is the Fatawa-iAlamgiri. Baillie's translation at page 156 states:- "When an invalid marriage has taken place, it is the duty of the Judge to separate the parties ; and if the wife be unenjoyed, she has no claim to dower but otherwise she is entitled to-" and the refraining of one of the parties to come to the other after consummation has taken place, does not effect a relinquishmment "URDU TEXT" but before consummation, one of the parties may cancel the marriage without the other being present though this cannot be done after consummation, except in the presence of the other. When one of the parties has relinquished. Authorities differ as to the necessity of the other being made acquainted with the fact."
14. ' Sir D. F. Mulla states in section 267 that :- "An irregular marriage may be terminated by either party, either before or after consummation, by words, showing an intention to separate, as where either party, says to the other: "I have relinquished you."
15. ' Sir Rolland Wilson stated at page 115 about 'Fasid' marriages :- "It is the duty of the Court to separate the parties, on its attention being called to the irregularity and the conjugal relation may also be terminated by a simple declaration on either side but if consummation had previously taken place, the woman is entitled to dower (proper or specified) whichever is the least."
16. ' It means that either of the parties can avoid such a marriage by adopting one of the following modes :-
(1) The husband can repudiate his wife.
(2) Either of them can sue to avoid it.
(3) The Court can itself move for its cancellation, if the matter is brought to its notice, by any pro bono publico.
(4) Either of them can, on his or her own, terminate the marriage by a simple declaration to that effect.
17. ' It means that the woman also has, apart from the right of suing in a Court, the right to avoid it by relinquishment. If the union has remained unenjoyed, it can be done even behind the back of the husband but in case of consummation, he has to be informed. The idea is that the husband or wife, as the case may be, ought to know where they stand in relation to each other.
18. ' There is some case law on the question of 'Fasid' marriages. The first case to my knowledge is Ilahia v. Imam Din decided by Rattigan, J. The report is not very clear but probably it was a case of the restitution of conjugal rights. The plaintiff had married the woman-his brother's widow who was, at the same time pregnant-before the expiry of the period of Iddat but some time after she delivered herself. The suit was dismissed and the dismissal was maintained up to the Chief Court.
19. The next case again is from Lahore, Jhandu v. Mst. Hussain Bibi and others, decided by a Division Bench. It is a case identical with the earlier one. The widow was pregnant and remarried within two months of her husband's death but after having delivered herself. The suit for restitution of conjugal rights was dismissed as it was held that in case of pregnancy, the Iddat was four months and ten days or the delivery of the child, whichever is longer. In the next case, Mst. Bakht Bibi v. Qaim Din, consummation had taken place even after the expiry of Iddat but the husband's suit for restitution of conjugal rights was dismissed. The next case is Ghulam Muhammad v. Mst. Shah Jira Khanum.
20. The woman was married to the plaintiff's brother and was divorced in writing. 8 days later, she was remarried to the plaintiff but after 4 days returned to her parents and did not return back. The husband's suit was decreed by the trial Court but it was dismissed, on appeal, by the District Judge and the second appeal was also dismissed. The Court held that the marriage hnving taken place during Iddat was invalid and that the same was a good defence to the suit.
21. ' There are other cases involving the question of the consequences of a marriage during 'Iddat'. In 43 P R 1882 the complainant was the second husband of the accused who had taken a third husband. The complaint was for bigamy-having taken a third husband in the lifetime of the second one. It came to light during trial that the marriage with the complainant had taken place during 'Iddat' ; Mr. Justice Rattigan held that the marriage was unlawful but nevertheless, thinking that it may have been allowed under custom, maintained the conviction though reducing it to already undergone. Another ease under section 494, P. C. Is Mst. Hanifa Begum v. The State, decided by Sir Barjor Dalai, C. J. Quaid-i-Azam Muhammad Ali Jinnah appeared for the appellant.
22. This woman also had contracted three marriages. The first husband was killed in a riot and she married the complainant before the expiry of 'Iddat'. She then married a third husband. On a complaint of bigamy brought by the 2nd husband, she was convicted by the trial Court and the conviction was maintained be the Sessions Judge. In the High Court, without going into the question as to whether the marriage was irregular or void, the learned C. J. Dissenting from the findings of the two Courts below held that the complainant's marriage had taken place during 'Iddat'. The prosecution did not claim that she could still be prosecuted for bigamy and taking this, as well as delay in prosecution etc., into consideration, the woman was acquitted.
23. It is, therefore clear that the marriage having taken place during '2ddat', the wife is entitled to terminate it and the fact that it was consummated, does not extinguish this right. Nor does the bar disappear on the termination of 'Iddat' so as to bring it on the plane of ordinary marriages. What is1 2 3 4 meant by the prohibition being temporary say in the case of 'Iddat' marriages, is not that these get clothed with all the legal consequences that flow from unprohibited marriage contracts, as soon as the waiting period is exhausted but that after that date, there is no bar for the parties to enter into a new marriage contract in accordance with law whereas in perpetually-prohibited marriages, the disability or disqualification is permanent.
24. ' In the light of this discussion, the appeal fails and is hereby dismissed with costs. The counsel fee is fixed at Rs, 500 each. 29 P R 1909=47 P L R 1909 AIR 1934 Lah. 907 PLD 1959 Lah. 1014 38 P L R (J & K) 60