This is a revision against the order of acquittal of the respondents passed by the Sessions Judge on 15th December, 1972, in a case under section 494/498/109, P. P. C.
2. The facts relevant for decision of this case are that on 1st May, 1971, Muhammad Bakhsh petitioner filed a complaint against Muhammad Hussain and Mst. Sattan respondents alleging therein that be (Muhammad Bakhsh) bad married Mst. Sattan on 25th January, 1967, and she had resided in his house as his wife but her parents had come and had taken her away about two years ago in his absence to their home, wherefrom she was sent by them to the house of Muhammad Hussain respondent and there Mst. Sattan filed a suit for dissolution of marriage in which she failed but on 22nd February, 1971, she got her Nikah performed with Muhammad Hussain although her previous Nikah with him (Muhammad Bakhsh) was subsisting. . He alleged that respondent Muhammad Hussain was committing adultery with Mst. Sattan knowing fully well that she was wedded wife of petitioner. The learned Magistrate by his order dated 12th May, 1971, summoned the respondent Muhammad Hussain and Mst. Sattan to stand their trial for offences under section 494/498, P. P. C.
The petitioner Muhammad Bakhsh appeared himself and produced as Exh. P. A. The certified copy of the order dated 17th February, 1971 of the Civil Judge dismissing Mst. Sattan's suit dated 15th July, 1969 for dissolution of marriage due to lack of proof on the ground that date in question was fixed for evidence of parties and neither plaintiff nor her witnesses were present. Noor Muhammad (P. W.
2), Ghulam (P. W. 3), Ata Muhammad (P. W. 4) and Ajmal Din (P. W. 5) appeared on his behalf. As against this Mst. Sattan made a statement under section 342, Cr. P. C. Which reads :- ---I am innocent. My Nikah was performed with Muhammad Bakhsh but the marriage was not consummated. I have got my Nikah dissolved and have married Muhammad Hussain. On learning that the Nikah has been dissolved, Muhammad Bakhsh has married Mst. Kanizan."
She tendered in evidence copy of her birth certificate as Exh. D. A. Show--ing that she was born on 28th September, 1954, statement of her case which she submitted before Mufti Ghulam Rasul to get his Fatwa as Exh. D. B., copy of Fatwa dated 18th January, 1971 by said Mufti Ghulam Rasul as Exh. D.
D. To the effect that Mst. Sattan had validly exercised her option of puberty and her Nikah with petitioner Muhammad Bakhsh performed during her minority stood dissolved and she was free now to perform Nikah with anyone, and copy of Nikahnama Exh. D. F. Showing her Nikah with Muhammad Hussain respondent on 22nd February 1971. Respondent thereafter closed their evidence.
The learned Magistrate by his judgment dated 28th April, 1972; convicted respondent Muhammad Hussain under section 494/498, P. P. C. And sentenced him to three months' R.
1. Under each count.
Respondent Mst. Sattan was convicted under section 494, P. P. C. And sentenced to three months' R.
I.
An appeal was filed by the said respondents before the Sessions Judge, Jhang, while a revision was filed, by the petitioner for enhancement .Of the sentence. The perusal of the judgment of the Sessions Judge would show that he came to the following findings of facts:
(1) That according to the birth certificate Mst. Sattan was born on 28th September, 1954 and was of the age of less than 13 years at the time of marriage with Muhammad Bakhsh on 25th January, 1967 and she had not attained the age of 16 years at that time which she was to attain on 28th September, 1970.
(2) That there is no convincing evidence on the record to show that the marriage was consummated and even if it is considered to have been consummated this was done before she had attained the age of 16 years as the petitioner in his complaint bad alleged that she left the house two years before institution on 1st. May; 1971 of the complaint and, therefore, this was no consummation in the eye of law and in the circumstances she was entitled to repudiate the marriage on the basis of her right of option of puberty.
(3) That the suit for dissolution of marriage filed by Mst, Sattan on the ground of exercise of right of option of puberty was dismissed in default of her appearance by the Family Court and dismissal in default was of no avail to the petitioner and it stood established now that Mst. Sattan had married Muhammad Hussain after repudiating her marriage with the petitioner.
(4) That Mst. Sattan married Muhammad Hussain on 22nd February, 1971 when she was of the age of 16 years 4 months and 26 days and she had obviously repudiated the marriage with Muhammad Bakhsh before she attained the age 4f 18 years.
(5) That Muhammad Bakhsh himself had been acting as if she was not his wife as he had kept quiet for two years after Mst. Sattan allegedly left his house and bad admitted in his cross examination that when he married Mst. Kanizan, sister of Noor Muhammad P. W. 2 about two years ago after Mst. Sattan had left his house he did not seek the permission of Mst. Sattan or the Union Council of the area and was obviously thus not treating Mst. Sattan as his legally-wedded wife when he married Mst. Kanizan."
On the basis of these findings, the learned Sessions Judge acquitted the, respondents.
At the time of filing of this revision on 29th January, 1973, a note was appended by the learned counsel for the petitioner that "D. M's. Certificate had been applied for and on receipt will be filed in the High Court." No such certificate, however, is available on the record of this case. Under rule 1-A, part A (b), Chapter I, Volume V of the Lahore High Court Rules and Orders, it bas been provided that the Deputy Registrar shall not receive any petition for revision against an order of acquittal unless it is accompanied by a copy of the order of the District Magistrate refusing to move the Provincial Government to file an appeal under section 417, Cr. P. C. This revision was entertained in spite of the lack of any certified copy of the order of the District Magistrate declining to move the Government to file an appeal. The case was also admitted to regular hearing on 5th June., 1973. It has been held in case of Syed Purial Shah v. The State and 4 others (PLD 1973-Kar. 265) that in such circumstances the case has to be decided on merits as the said rule had been made by the High Court for regulating the procedure to be -adopted by the Deputy Registrar for entertaining the revision petitions and cannot be relied upon to defeat the clear intention of Legislature expressed in the statute. It was further held that rule cannot by any stretch of imagination be deemed to have curtailed the powers of the Court in any manner whatsoever arid once the matter comes to the knowledge of the High Court, then whatever be the method adopted in bringing the matter to its notice, the High Court has unfettered powers to pass any order subject only to the restric--tions mentioned in subsections (2), (3), (4) and (5) of section 439, Cr. P CTherefore, in view of the fact that the petition was already admitted and 'l was pending in the High Court, notwithstanding that it has been filed directly without approaching the Government for filing an appeal against acquittal, the same has to be disposed of by this Court on merits.
2. Learned counsel appearing for the petitioner has raised the follow--ing questions :-
(l) That the suit for dissolution of marriage filed by respondent Mst. Sattan was dismissed for want of evidence and this dismissal was clearly a decision under Order XVII, rule 3, C. P. C. And as such was to be deemed to be a decree conclusively determining the rights of the parties and was binding upon Mst. Sattan and, there--fore, her marriage with Muhammad Bakhsh petitioner having note been dissolved, Mst. Sattan was still the wife of Muhammad Bakhsh. Furthermore, according to para. 275 of Mohammadan Law by Mulla, mere exercise of the option of repudiation does not operate as a dissolution of marriage, as repudiation must be confirmed by the Court. The respondents having married each other without formal decree of dissolution of marriage had committed the offence under section 494, P. P. C. And by continu--ing to live with Mst. Sattan, Muhammad Hussain had committed' the offence under section 498, P. P. C. As well.
(2) That the birth certificate placed on the record showing that Mst. Sattan was born on 28th September, 1954 had not been connected with Mst. Sattan. Nobody had come forward to depose that this birth certificate was in respect of Mst. Sattan respondent and the girl mentioned therein was Msr. Sattan respondent and without fixing the identity of the woman given in this birth certificate, the mere production of birth certificate in evidence by Mst. Sattan was by itself of no consequence and did not prove that Mst. Sattan was born on the said date. Reliance for this proposition has been placed on AIR 1938 Cal. 121.
3. I have considered the contentions raised by the learned counsel, So far as the first point is concerned, the question as to whether the said decision of Judge Family Court, dated 17th February, 1971 was a decree or not cannot be determined on the basis of any provision made it C. I'.
C. Which has been expressly excluded from its application to proceedings under West Pakistan Family Courts Act, 1964, but on the basis of relevant provisions of West Pakistan Family Courts Act, 1964; itself. Relevant provision in the said statute are subsection (1) of section 11, section 12, subsection (1) of section 13. They read as below .- "(11) Recording of evidence.--(1) On the date fixed for recording of the evidence the Family Court shall examine the witnesses produce( by the parties in such order as it deems fit.
(12) Conclusion of trial.-(1) After the close of evidence of both sides, the Family Court shall make another effort to effect a com--promise or reconciliation between the parties.
(2) If such compromise or conciliation is not, possible, the Family, Court shall announce its judgment and give a. Decree.
(13) Enforcement of decree.-The Family Court shall pass a decree in such -form and in such manner as may be prescribed, and shall enter its particulars in the prescribed register."
The Family Courts Act does not itself define a decree. Therefore, sub--section (2) of section 2 of the Family Courts Act is also relevant as it makes applicable the definition of decree as given in C. P. C.
To the said Act. The two provisions read as below :- Subsection 2 (2) of Family Courts Act, 1964. "words and expressions used in this Act but not herein defined, shall have the meanings respectively assigned to them in the Code of Civil Procedure, 1908."
Subsection 2 (2) of C: P. C. :- "'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit * * * It shall be deemed to include "but shall not include * * * *
(b) any order of dismissal for default. Explanation * ** * *" The word 'prescribed' used in subsection
(1) of section 13 of Family Courts Act, 1964, is defined in . Subsection (e) of section 2. It reads as below :- --- ---prescribed--- means prescribed by rules made under this Act."
Relevant rule is rule 16 of West Pakistan Family Court Rule- 1965. It reads as below :- "(16) In every suit, on passing the judgment, a decree shall be drawn up in Form Land shall be signed by the Presiding Judge. The decree shall bear the seal of the Court."
Form 1, as prescribed under this rule is as below :- FORM 1 Form of Decree.
In the Family Court-----------------------
(1) Case No.-----------------------------
(2) ------------Petitioner/Plaintiff versus -------------Defendant/Respondent
(3) Claim for ----------------------------- This suit coming this day for final disposal before this Family Court, it is hereby ordered that------- Date-------- (Seal of the Court)Signature of-the Judge Family Court at-----"
Exh. P. A. The decision of the Family Court dated 17th February, 1971 is reproduced below :- It may be noted that no decree as prescribed in Form I of rule 16, as detailed above, has been filed in this case. Exh. P. A. Given above in extenso is only the decision of the Court and is not in Form I prescribed B in rule 16.Ante and is obviously not a decree.
According to subsection (2) of section 12, a decree is an entity different front judgment as it follows the judgment. It cannot, therefore, be said that said decision operates as a decree. It cannot even be said, as alleged, that such a decision must be presumed to have been followed by a decree. No doubt, that according to this decision, the suit was dismissed for want of evidence, but such an order of dismissal cannot be presumed to have been followed by a decree because the above- quoted sections 11 (1) and 12, are couched in a mandatory language and impose an obligation on the Court to record evidence and make another effort (in the light of evidence produced) to effect a compromise or reconcilia--tion between the parties and a judgment and a consequential decree can be passed only after the said two steps have been taken by the Court, in other words, judgment can be recorded by a Family Court on merits on the basis of said evidence alone and it is only thereafter that a decree will follow. There is no doubt that sometimes plaintiff and his witnesses do not turn up but in such a situation, the Family Court can only dismiss a suit to default or for non-prosecution, as there is no evidence with the Court to enable it to decide the suit on merits on the basis of evidence produced before it and the Court has not both the parties before it to enable it to fulfil the duty imposed upon it to make another effort to effect a compromise between them. The suit in this case was dismissed on the sole ground of absence of plaintiff and her witnesses. The said decision is obviously not a decision on merits and no decree can be considered to have been passed on its basis and the said decision would be considered to be merely an order of dismissal of suit in default of appearance of plaintiff. Such an order has been specifically excluded from the definition of a decree as incorporated in Family Courts Act, 1964. It is obvious, therefore, that the said decision of the suit did not bind Mst. Sattan in any manner and did not restrain her from filing a fresh suit for the same purpose of from marrying another person if no such suit was necessary.
4. I now turn to the next leg of argument of learned counsel for the petitioner to the effect that marriage of Msr. Sattan having not been dissolved by the said decisions and mere exercise of right of option of puberty not being sufficient to dissolve a marriage Mst. Sattan continued to be wife of Muhammad Bakhsh petitioner and was criminally liable for having entered into a marriage with respondent Muhammad Hussain during the subsistence of earlier marriage. I am afraid I cannot accept this contention too. In my opinion grant of a decree is not necessary to give validity to repudiation of marriage on the basis of right of option of puberty. For the contention that mere exercise of option of repudiation does not operate as a dissolution of marriage and a decree of a Court is necessary for that, the learned counsel for: the petitioner has referred only to para. 275 of Mulla's Mohammadan Law. It is, however, not permissible to refer to the commentary as it does not give the entire facts of the case and cannot form a precedent for the Court. As against ibis, it has been laid down in Muhammad Bakhsh v. The Crown (1), that order of Court is not essential for imparting validity to the exercise it was laid down that repudiation of marriage by exercise of option of puberty puts an end to the marriage without the aid of any Court and when matter comes to the Court, the Court does not dissolve the marriage by its own act but recognizes the termination of the marriage. In case of Mst. Sarwar Jan v. Abdul Majid (1), the following observations of Mr Justice Faizullah are in point :-- "I may also borrow the words of the Privy Council in Malka Jehan Sahiba v. Mohammad Askaree Khan (1873 L. R. I., A. (Supp. Vol.) p. 192), wherein their Lordships of the Privy Council laid down that where a minor girl has been contracted in marriage, the matter ought to be propounded to her on her attaining majority so that she may advisedly give or withhold her assent. The withholding of assent may be expressed in a variety of ways. It. May be indicated by the fact that without having re-course to institution of suit for the dissolution of marriage the girl may, where there has been no consummation and provided also that she is not more than 18 years, get re-married, as held in Muhammad v. Emperor (140 1. C. 617). It may be indicated by serving a notice on the husband through an attorney or publishing a notice in Newspaper that the option of puberty has been exercised. It may be manifested by the mere institution of a, suit for dissolution of marriage which may eventually be dismissed in default under Order IX. Rule 3, C. P. C. In the instant case there is the categorical averment in the plaint that that option of puberty has been exercised. That in my view is an unequivocal expression of renunciation of marriage., I may borrow the words of Mr. Justice Johnstone in Mst. Hosan Bibi v. Fazal Elahi (21 1. C. 381)
The bringing of the suit is in itself an exercise of that option and it cannot be held that there has been any unreasonable delay.
(8) It follows from the last quoted authority that by instituting the previous suit which was dismissed in default on 20th October, 1954 the marriage of the plaintiff witch the respondent stood automatically annulled, in that it is a common ground between the parties and there is concurrent finding of the Courts that the marriage has not been consummated and that she was below 18 years of age at the time of instituting the first suit."
Furthermore, in case of Muhammad Amin v. Mst. Surraya Begum and 2 others (PLD 1970 Lab: 475) an observation was made that having, once repudiated marriage by a proper exercise of her option of puberty a Muslim woman is under no obligation to wait for the decree of the Court for contracting a second marriage.
Seen in the light of the above authorities, it is clear that on account of repudiation of marriage by Mist. Sattan on or before 15th July, 1969, the date of institution of suit for dissolution of marriage on the basis of option of puberty, the said earlier marriage stood dissolved and that it was not necessary for Mst. Sattan to file a fresh suit for dissolution of marriage and she could validly rely on said repudiation of previous C marriage and consequent dissolution of her marriage and could validly enter into Nikah with Muhammad Hussain and on that account no offence had been committed by Muhammad Hussain and Mst. Sattan in marrying each other.
4. As for the next contention raised by the learned counsel for the petitioner, there is no doubt that nobody has appeared in evidence to establish that Mst. Sattan mentioned in the said certificate is respondent but it has to be noted that in normal circumstances a woman would not in order to save herself from further harassm ent in further criminal cases, make a false statement that a birth certificate being produced by her which actually belonged to some other woman was her own. It is also notable that said certificate clearly describes her parentage and the village in which she was born which is the same as given in the complaint. The only inference which can be drawn from correspondence of name of female child and her father and village of her birth with that given in the complaint is that certificate belongs to her. No doubt, the certificate had been tendered in evidence by Mst. Sattan in her statement, under sect--ion 342, Cr. P. C. When prosecution evidence had already been closed, but if the petitioner complainant had a positive knowledge that the said birth certificate was not of Mst. Sattan respondent, he could have filed an application before the Magistrate and sought necessary relief from that Court under section 540, Cr. P. C. But nothing was done by petitioner in that behalf. The point required evidence and could have been raised in the Court of Magistrate alone. It cannot be allowed to be raised for the first tints in revision before this Court. In any way, petitioner Muhammad Bakhsh had filed criminal revision in Sessions Court for enhancement of sentence aid and appeared before the Sessions Judge to oppose that appeal of respondents against their acquittal but the judgment of the Sessions Judge shows that at the hearing before him no such plea was urged nor the question of age of gist. Sattan was agitated.
Even in the present revision, no ground has been taken disputing the correctness of the age as mentioned in the certificate. The petitioner had, therefore, by impli--cation accepted that the said birth certificate belonged to Mst. Sattan respondent. There is, therefore, on substance in this objection of the learned counsel for the petitioner also and the same is repelled. The finding of fact of Sessions Judge that respondent Mst. Sattan was of 13 years of age on 25th January, 1967, the date when her Nikah was perfor--med with Mohammad Bakhsh petitioner, is unexceptionable.
5. Learned counsel for the petitioner has not adverted to the crucial question of existence or otherwise of criminal intention on the part of the respondents in marrying each other after the repudiation of marri--age by Mst. Sattan in exercise, of her right of option of puberty. In my opinion, in criminal cases, mens pea which is the basic factor for establish--ing the guilt of a person should be proved before any conviction can be recorded against such a person. If a woman even after the dismissal of the suit honestly believes that her previous marriage had been dissolved due to her repudiation and honestly enters into a marriage with another person, then parties to such marriage cannot be convicted of the offence under section 494, P. P. C. It is clear from the circumstances of this case that Mst. Sattan who was less than 16 years of age when she married the petitioner and had repudiated her said marriage before she attained the age of 18 years as required by section 2 (vii) of the Dissolution of Muslim Marriages Act. 1939 (VIII of 1939) approached the Mufti of the area who was well conversant in Shariat Law and submitted a statement to him describing with precision and correctness all the facts of her case and praying for opinion on the same according to Shariat and she was given a Fatwa dated 13th January, 1971, that according to Shariat, the marriage stood dissolved. It was on receipt of this Fatwa that she had considered unnecessary to appear in the civil Court on 17th February. 1971. And it was on the basis of this Fatwa that she considered that she had repudiated the marriage validly. It is thereafter that she entered into Nikah with Mohammad Hussain. She clearly did so honestly believing that the marriage stood dissolved. There was no mens rea in this act of her which she had done after due care and caution after getting a Shari opinion from a person well versed in the Shariat Law. I do not think, therefore, that she had committed any offence in marrying Mohammad Hussain nor can Mohammad Hussain be considered to have committed the offence under section 498, P. P. C. I am fortified in this view of mine by the decision of Dacca High Court in case of Jahan Ara Khatun and others v.
The State (PLD 1967 Dacca 704).
Even otherwise, the law so far as the revision against acquittal is concerned is very, stringent. It is only when the decision is arbitrary, perverse and unreasonable in the extreme and has resulted in grave miscarriage of justice that extraordinary jurisdiction of this Court can be exercised under section 439, Cr. P. C., In my opinion the view taken by the Sessions Judge was by no means arbitrary or perverse and obviously no miscarriage of justice had taken place in this case. In view of this, I dismiss this revision petitioner.