This is bail after arrest application in case FIR No, 562/2003, dated 14.6.2003, under Section 10/11 Offence of Zina (Enforcement of Hudood) Ordinance, 1979, of Police Station Sanda, Lahore.
2. According to the prosecution allegations set up in the FIR lodged by Mst. Razia Bibi, the petitioner was married to Mst. Shamim elder daughter of the complainant and subsequently, he abducted Mst. Nasim alias Shama younger daughter of the complainant. All the efforts on the part of the complainant seeking restoration of her younger daughter failed and consequently this case was lodged.
3. It is contended on behalf of the petitioner that he had divorced his first wife Mst. Shamim Akhtar and had contracted marriage with Mst. Nasim alias Shama with her consent and as such has not committed any offence.
4. It is stated on behalf of the State that the petitioner had not divorced his first wife and had contracted Nikah with the younger sister of his first wife which is not permissible in law and as such he is not entitled to the concession of bail.
5. The petitioner has placed on file copy of Nikah Nama, whereby, he and Mst. Nasim Bibi were married on 30.6.2003. Mst. Nasim Bibi had also got recorded her statement under Section 164 Cr.P.C. in which she stated that she had left the house of the complainant of her own accord and had contracted Nikah with the petitioner of her own volition.
6. The petitioner claims to have divorced Mst. Shamim his first wife.
Even if, the prosecution case is admitted that the first wife had not been ' divorced in accordance with law and the first Nikah is still subsisting, the contract of subsequent Nikah with younger sister of first wife will only amount to an irregular marriage. Section 242 of Principles of Mahomedan Law by D.F. Mulla stipulates that the marriage may be valid (Sahih), or irregular (fasid) or void (batil) from the beginning. Section 253 lays down distinction between void and irregular marriage as under:-- 253: Distinction between void and irregular marriage:
(1) A marriage which is not valid may be either void or irregular.
(2) A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus, a marriage with a woman prohibited by reason of consanguinity (S. 250), affinity (S. 251), or fosterage (S. 252), is void the prohibition against marriage with such a woman being perpetual and absolute (a).
(3) An irregular marriage is one which is not unlawful in itself, but unlawful "for something else", as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstances, such as the absence of witnesses. Thus, the following marriages are irregular, namely:-
(a) a marriage contracted without witnesses (S. 244),
(b) a marriage with a fifth wife by a person having four wives (S. 255);
(c) a marriage with a woman undergoing iddat (S. 247);
(d) a marriage prohibited by reason of difference of religion (S. 249);
(e) a marriage with a woman so related to the wife that if one of them had been a male they could not have lawfully intermarried (S. 253)."
7. The case of the petitioner for having married the younger sister of his first wife falls within the purview of Section 253(3)(e).
The effects of an irregular marriage have been laid down in Section 256 within stipulates as under:- -
(1) 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" (d) An irregular consummation.
(2) If consummation has taken place--
(i) the wife is entitled to dower, proper or specified, whichever is less (Ss. 276, 279)
(ii) she is bound to observe the iddat, but the duration of iddat both on divorce and death is three courses (S. 246(2); But an irregular marriage, though consummated, does not create mutual rights of inheritance between husband and wife (Baillie, pp. 694, 701). It has been held that it does create such rights, (b) but the decision, it is submitted, is not correct."
7. The above two Sections thus lay down that the marriage of the petitioner with Mst. Shamim is not void, but is irregular and the issues of this marriage would be legitimate. .Therefore, it cannot be held that the petitioner is committing zina with this second wife. The second marriage of the petitioner will become valid on his divorcing the first wife, whom he claims to have divorced.
Therefore, the petitioner seems to have committed no offence.
8.In view of this circumstance, the petitioner is admitted to bail in the sum of Rs, 50,000/- with one surety in the like amount to the satisfaction of the learned trial Court.