06/11/2020
Within Iddat period Nikah would be invalid rather void and during that period cohabitation would come within definition of Zina and would be liable to be punished
P L D 2005 Lahore 126
Before Khawaja Muhammad Sharif, J
FATIMA BIBI‑‑‑Petitioner
Versus
STATION HOUSE OFFICER, POLICE STATION ICHHRA, LAHORE and 9 others‑‑‑Respondents
Writ Petition No.2545 of 2004, decided on 27th October, 2004.
(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑S.16‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑ Constitutional petition‑‑‑Quashing of F. I. R. ‑‑‑Petitioner who was a Christian woman, was married to a Christian and out of said wed‑lock nine children were born‑‑‑Later on the lady embraced Islam and only after five days of said conversion she married with a Muslim without observing Iddat period‑‑Validity‑‑‑During Iddat period if any woman entered into Nikah that would be against law and also Injunctions of Islam and it would be liable to Ta'zir‑‑‑If a married non‑Muslim woman would embrace Islam, she must inform her husband of said conversion and her husband either would embrace Islam within period of Iddat in which case marriage would continue, or he would remain a non‑Muslim even after expiry of Iddat period, in which case marriage would stand dissolved ‑‑‑Iddat was compulsory after dissolution of marriage of any character‑‑‑Within Iddat period Nikah would be invalid rather void and during that period cohabitation would come within definition of Zina and would be liable to be punished‑‑‑Petition for quashing of F.I.R. was dismissed., in circumstances.
Sardar Masih v. Haider Masih and 3 others PLD 1988 FSC 78; Mst. Kundan Mai v. The State PLD 1988 FSC 89 and Mst. Safia Bibi v. Muhammad Arif, A.S.‑I. and others 1997 MLD 158 ref.
(b) Islamic law‑‑
‑‑‑‑ Divorce‑‑‑Iddat‑‑‑Marriage before completion of iddat period by a divorced woman‑‑‑Effect.
Aftab Ahmad Javaid Sheikh for Petitioner.
Ch. Ghulam Rasool for Respondent No.7.
Muhammad Hanif Khatana, Addl. A.‑G. Punjab with Muhammad Nawaz, A.S.‑I. with record.
ORDER
Brief facts of the case, unfolded through F.I.R.No.416 of 2004 dated 10‑7‑2004 under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) read with section 379, P.P.C., Police Station Ichhra, Lahore, are that Mst. Fatima Bibi petitioner; who was Christian, was married to one Siddique son of Sona Masih and out of the said wed‑lock nine children were born. It was further alleged in the F.I.R. that later on, she embraced Islam on 28‑6‑2004 and married one Muhammad Younis on 3‑7‑2004.
2. Learned counsel for the petitioner, while seeking quashment of the above F.I.R. submits that as the petitioner Mst. Fatima Bibi, having converted herself into Islam, has married with a Muslim, so no case is made out against her; that it was not necessary for her to wait for Iddat period because the said condition does not apply in petitioner's case. In support of the submissions made learned counsel has relied upon Sardar Masih v. Haider Masih and 3 others PLD 1988 Federal Shariat Court 78.
3. While advancing his arguments, learned counsel for the petitioner submits that even according to all the four sects of Islam i.e. Hanfia, Malkia, Shafia and Humblia, no case of Zina is made out against the petitioner, therefore, the impugned F.I.R. got registered on the statement of the ex‑husband of petitioner is liable to be quashed by this Court.
3‑A. On the other hand, learned Additional Advocate‑General Punjab assisted by learned counsel for the complainant submits that unless the Iddat period expires no woman can enter into second marriage and in this regard reliance is placed upon Mst. Kundan Mai v. The State PLD 1988 FSC 89 in which it was held by their Lordships of the Hon'ble Federal Shariat Appellate Bench that during the Iddat period if anybody enters into Nikah that would be against the law and also the injunction of Islam and it will be liable to Ta'zir. Learned counsel for the complainant has also relied upon Mst. Safia Bibi v. Muhammad Arif, A.S.I. and others 1997 MLD 158 to support the above view.
4. I have heard learned counsel for the parties, have gone through the case law relied upon by both the parties and have also given anxious consideration to their respective submissions made at the bar. In the instant case, the short point involved is whether Mst. Fatima Bibi, who was earlier, married with. Siddique son of Sona Masih converted to Islam on 28‑6‑2004 and five days thereafter, she married with one Muhammad Younis a Muslim. Certified copies of conversion of Islam and her Nikah with Muhammad Younis have been placed on record. Record shows that only five days had passed when the petitioner Mst. Fatima Bibi entered into marriage with Muhammad Younis, which is against the law and also against the injunction of Islam. In the case of Mst. Safia Bibi v. Muhammad Arif, A.S.‑I., and others 1997 MLD 158 such a controversy came under consideration before this Court and the Hon'ble Judge after scanning the case law on the subject in paragraph 17 of the report observed as under:‑‑
(a) If a married non‑Muslim woman embraces Islam she must inform her husband of the coversion.
(b) The husband either embraces Islam within the period of Iddat, in which case the marriage continues, or he remains a non‑Muslim even after expiry of Iddat period, in which case the marriage would stand dissolved.
(c) Iddat is compulsory after dissolution of marriage of any character. The Iddat is imposed in order to provide opportunity to the non‑Muslim husband to consider whether he wishes to embrace Islam and also as a matter of public Policy in order to ascertain whether the woman is pregnant by earlier husband so as to avoid confusion of parentage.
(d) Specific procedure needs to be laid down as to how a marriage is to be dissolved in case the husband does not convert to Islam during the period of Iddat."
For the view taken in the case of Mst. Safia (supra) reliance can also be placed on the case of Mst. Kundan Mai v. The State PLD 1988 FSC 89 (Appellate jurisdiction) wherein, in head Note B, it was observed as under:‑‑
5. After having heard learned counsel for the parties and going through the case‑law mentioned above. I find no force in this petition and the same is dismissed.
H.B.T./F‑65/L Petition dismissed.
