1. SHAFIUR RAHMANJ.--Leave to appeal was granted to the two appellants, who were claiming to be validly married husband and wife, to examine the correctness of the judgment of the Lahore High Court, dated 3-5-1983 whereby their joint Criminal Revision was dismissed and the conviction and sentence of Javid appellant under section 494/109, P.P.C. And that of Rehana Khanum under section 494, p p-r- was maintained.
2. Rehana Khanum first got married to complainant Abdul Qadir in 1970 and gave birth to four children, the last being Kamran born on 21-2-1977. On 2-12-1978, during the lifetime of her husband Abdul Qadir, she contracted another marriage with the co-appellant. On 29-1-1979 the appellant Javid A.I made a grievance of illegal detention of his wife Rehana Khanum by Abdul Qadir whereupon warrant under section 100, Cr.P.C. Issued for her recovery. On being produced before the Magistrate on 30-1-1979 she admitted Javid to be her husband and, as wanted by her, she was allowed to go with Javid A.I. In turn, on 4-2-1979 Abdul Qadir filed a complaint against them under sections 499 and 494/109, P.P.C. The defence of the appellant was that by a written divorce-deed (Exh. D.A.) undated but stated by its scribe (Inayatullah D.W. 2) to have been executed on 25-11- 1974 Abdul Qadir had divorced her and both the appellants in good faith believed that the marriage had come to an end.
3. At the trial three witnesses were examined by the complainant and two by the appellants.
4. Documentary evidence was produced to show that Rehana Khanum had filed a Family Court suit on 4-4-1979 in the Court of Senior Civil Judge seeking dissolution of her marriage with Abdul Qadir which was ultimately dismissed for non-prosecution. Rehana Khanum denied having filed any such suit. The trial Court after considering the entire evidence produced came to the conclusion that Rehana Khanum was never divorced by the complainant. The divorce deed was held to be "of no value in the eye of law" as "it has not been executed in accordance with section 7 of the Muslim Family Laws Ordinance, 1961------------..The formalities which were mandatory under the aforementioned law were never fulfilled and hence, it is a nullity in the eyes of law". It was further held that "accused Javed instigated her to commit bigamy". They were convicted and sentenced to two years' rigorous imprisonment and a fine of rupees two thousand each".
5. The appellate Court re-examined the entire evidence and recorded the finding that Rehana Khanum "was not divorced by Abdul Qadir in 1974" and in the alternative that "even if it be assumed that document of divorce, dated 25-11-1974 was executed by the complainant, it lost its value after the spouses resumed their married life". As regards Javed Malik, the appellate Court held "it was within his knowledge that she was living with the complainant and that in the year 1977, she had also given birth to a child. In case Mst. Rehana Khanum was divorced by complainant in 1974 and she was being married with Malik Javed A.I appellant as a divorced woman on 2-12-1978 the facts of living of Mst. Rehana Khanum with the complainant afterwards and of giving birth to children were sufficient to put Malik Javed A.I on his guard before entering into marriage contract with her".
6. Their appeals was dismissed.
7. Both the appellants filed a joint Criminal Revision Petition. A: none appeared to prosecute it the learned Judge examined the record with the assistance of learned counsel for the respondent and came to the conclusion that "the evaluation of evidence brought on the record by the learned Courts cannot be said to be improper. They have not committed any illegality or material irregularity warranting interference by the Court in revision". The petition was dismissed.
8. Mr. Maqbool Elahi Malik, the learned counsel for the appellants, contended that, if at all, it was the duty of Abdul Qadir who claimed to be the husband to have taken steps under section 7 of the Muslim Family Laws Ordinance and to have intimated the Chairman of the concerned Union Council with regard to having executed a divorce deed so that it could take effect. If he failed in his duty to do so the divorce could not be said to have not taken effect nor could Abdul Qadir benefit from his own omission. The learned counsel has relied upon the observations made in Muhammad Rafique v. Ahmad Yar and another PLD 1982 Lah. 825 to the effect that "absence of notice would obviously be a violation of section 7 of the Ordinance only, the crime punishable under the Ordinance. By no stretch of imagination Talaq, if pronounced, can be claimed to be ineffective". The other contention of the learned counsel for the appellant is that the divorce deed, Exh. D.A. Makes it clear that it was not the unilateral act of the husband Abdul Qadir in pronouncing Talaq but it was a negotiated settlement between the husband and the wife and amounted to dissolution by Khula'.
9. Such a settlement followed by dissolution of marriage was in fact not governed strictly by the provisions of Muslim Family Laws Ordinance and for this proposition the learned counsel has relied upon the observations of this Court in Mst. Ghulam Fatima v. Abdul Qayyum and others PLD 1981 SC 460. Another contention of the learned counsel for the appellant was that in contracting marriage with the appellant there was no criminal intention on the part of Rehana Khanum and she bona fide and reasonably believed that her marriage with Abdul Qadir had come to an end. In the absence of any criminal intention or mens rea conviction under section. 494, P.P.C. Could not be recorded. Reliance has been placed for this view on a decision in Jahanara Khatun v. The State F L D 1967 Dacca 704. The learned counsel also pointed out that subsequent to the decision of the trial Court Abdul Qadir got a case registered under the Hudood Ordinance on 12-7-1980 implicating both the appellants but they were acquitted by all the Courts including the Federal Shariat Court in the Criminal Revision Petition 13(L) of 1983 decided on 6-3-1985. A copy of the judgment has been placed on record. Finally, the learned counsel for the appellant contended that in any case and on any reasoning the complicity of Javid A.I in the crime was not established because he could reasonably believe that Rehana Khanum was a divorcee. He could not have possibly known about the omission of Abdul Qadir to take necessary steps under section 7 of Muslim Family Laws Ordinance to make the divorce effective.
10. The first argument of the learned counsel for the appellant was raised earlier in the case of Syed A.I Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51 and was noted and disposed of in the following terms-- " to permit the complainant to say that by not giving the notice to the Chairman, the divorce granted by him had been robbed of legal effect, would be tantamount to allowing him to take advantage of his own wrong. Learned counsel referred to pages 200-203 of Maxwell's Interpretation of Statutes, Eleventh Edition, in support of the proposition that on the general principle of avoiding injustice and absurdity, any construction would, if possible, be rejected (unless the policy and object of the Act required it) which enabled a person to defeat or impair the obligation of his contract by his own act or otherwise to profit by his own wrong. But here it is obvious that the object of section 7 is to prevent hasty dissolution of marriages by Talaq, pronounced by the husband, unilaterally, without an attempt being made to prevent disruption of the matrimonial status. If the husband himself thinks better of the pronouncement of Talaq and abstains from giving a notice to the Chairman, he should perhaps be deemed, in view of section 7, to have revoked the pronouncement and that would be to the advantage of the wife. Subsection
(3) of this section precludes the Talaq from being effective as such, for a certain period and within that period, consequently, it could not be said that the marital status of the parties had in any way been changed. They would still in law continue to be husband and wife."
11. As regards the observations made by the learned the then Acting Chief Justice in his separate judgment, it was in fact not given effect to in that very judgment because the appeal was dismissed and the order directing the registration of the case was allowed to remain intact.
12. Besides, the observations made are not in accord with the law laid down in Gardezi's case and also subsequently in the case of Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi 1984 SCMR 583 in which the decision of the High Court relied upon was also referred to in the following words-- "We observe that in the judgment relied upon by the High Court, namely, Muhammad Rafiq v.
13. Ahmed Yar the High Court unfortunately overlooked two pronouncements of this Court, dealing with the same question, namely, A.I Nawaz Gardezi v. Muhammad Yusuf PLD 1963 SC 51 and Abdul Mannan v. Safuran Nessa 1970 SCMR 845. In the first mentioned case it was observed that in view of the provisions of section 7(3) of the Ordinance Talaq would become effective only after notice of Talaq is given to the Chairman and the period of three months provided for bringing out a reconciliation between the parties has expired.
14. Where the husband does not give a notice of Talaq to the Chairman, it can be deemed that he has revoked the Talaq. While in the second case, namely, Abdul Mannan v. Safuran Nessa the view taken by this Court appears with great clarity from the following extract therefrom:-- 'The learned counsel for the petitioner concedes that no notice of the alleged divorce was given to the Chairman as required by section 7(1) of the Muslim Family Laws Ordinance. That being so the alleged divorce, in view of the express provision of subsection (3) of section 7 of the said Ordinance, is yet to become effective.
15. It is manifest therefore, that the view expressed by the Lahore High Court in Rafiq's case, which view was relied upon in his impugned judgment by the learned Judge while accepting the revision petition filed by the respondents, cannot be supported and is, in fact, erroneous."
16. The second legal question that dissolution of marriage by settlement between the spouses or by Khula does not attract the limitations or restrictions placed in section 7 was considered for the first time though in a different context to Gardezi's case in the following words-- "The sphere of attempted conciliation seems to be further extended by section 8 of the Ordinance to cases of "Talaq Tafviz" and also to other forms of dissolution of marriage at the instance of either party mutatis mutandis; and this throws further light on the objective aimed at by the Ordinance. It would be idle to speculate what alternative forms of dissolution are contemplated by this section."
17. "On the view of the matter that I have taken, it is not necessary to examine the question as to whether section 7 of the Muslim Family Laws Ordinance applies to the case of Khula or Mubara't which is irrevocable."
18. The language of the statute, namely, section 8 of Muslim Family Laws Ordinance, 1961 appears to clearly cover the case in hand if the divorce deed is taken to have been duly executed by Abdul Qadir which fact the three Courts have negatived. Section 8 of Ordinance provides as hereunder:-- "8. Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by Talaq the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply."
19. The legal effect of not observing the requirements of section 7, the implied revocation of the divorce, appears to have been countenanced by the spouses because according to Rehana Khanum appellant she lived with Abdul Qadir even after 1974 and gave birth to a child in 1977. Her explanation for such a conduct is that during all this period she was forcibly kept at the house though she stood legally divorced this explanation has not been believed by any of the Courts dealing with the case.
20. The acquittal of the two appellants by the Federal Shariat Court for an offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as there was no direct evidence found of their having committed sexual intercourse is not of any consequence so far as the fact of their marriage during the subsistence of an earlier marriage is concerned. It is admitted by both the appellants that they got married. The only fact to be examined was whether the earlier marriage subsisted and the offence of bigamy had been committed or abetted.
21. The last contention of the learned counsel for the appellants appears to have some substance.
22. From the evidence brought on record it does not appear that Javid A.I wasclose to and aware of all the happenings of the family of Abdul Qadir or Rehana Khanum. He had contracted a marriage when Rehana Khanum claimed to have been divorced and this was explicitly mentioned in the Nikahnama which was got registered. Unless there was clear and convincing evidence to establish that he had the requisite knowledge of the subsistence of her marriage with Abdul Qadir it could not be held that he abetted the commission of the offence of bigamy by Rehana Khanum or was a party to it. The benefit of doubt must, therefore, be extended to him.
23. The appeal of Javid A.I against his conviction and sentence is accepted. His conviction and sentence is set aside and he is discharged of the bail bond. The conviction of Mst. Rehana Khanum under section 494, P.P.C. Is maintained. However, as regards the sentence, we consider that she being a woman with children to look after, the one already undergone by her in this protracted litigation will be sufficient to meet the ends of justice. Consequently, while dismissing her appeal against her conviction, we reduce the sentence of imprisonment to one already undergone. The sentence of fine and the imprisonment in lieu thereof shall remain intact.