Union of husband and wife in an irregular marriage, without observing the period of Iddat, may have consequences under Islamic law but it cannot be treated as unlawful, says a ruling of the Lahore High Court.
Justice Ali Zia Bajwa issued the ruling in a judgment that upheld an order of a district court of Muzaffargarh wherein an application for registration of a case under charges of Zina was dismissed.
In his petition, Ameer Bakhsh had prayed the LHC to overturn the district court’s verdict on the grounds that his wife had violated the Islamic laws by contracting a second marriage without observing the period of Iddat. Therefore, he said, his former wife had been committing Zina.
He told the court that the sessions court dismissed his application in which he had sought registration of a case under section 4 and section 5 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
The petitioner’s counsel further alleged that the ex-wife, with mala fide intentions, “secretly” filed a suit for dissolution of marriage and got the ex-parte decree against the petitioner from the family court through an order dated January 20, 2021.
“After obtaining the ex-parte decree of dissolution of marriage (khula), she contracted second marriage the very next day without observing the period of Iddah “as ordained by Allah Almighty in the Holy Quran,” he said, contending during the period of Iddat, no second marriage can be solemnised and as such Nikah would not be valid rather void and the result of an illegal cohabitation.
Justice Ali Zia Bajwa while rejecting the plea ruled that under Islamic law the marriage contracted by a divorced lady before the completion of the Iddat period would be an irregular marriage but not void.
He observed that while an irregular marriage may have its own consequences under Muslim Personal Law but the same cannot be treated as void (batil) and union of respondents (ex-wife and new husband) in Nikah cannot be regarded as a cognisable offence, as defined under section 4 and punishable under section 5 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, entailing penal consequences.
“I find no irregularity or illegality in the impugned order,” he added.
Difference between ‘fasid’ and’ ‘batil’
He noted even if the petitioner’s version was considered correct, that the ex-wife entered into another marriage on the very next day of dissolution of her marriage without before competition of the period of Iddat, even then the marriage between respondents will be counter as an irregular (fasid) marriage and not void (batil) as alleged by the petitioner.
However, the petitioner, citing premises of several decisions of constitutional courts, pressed the claim that as per the ratio of these dictums, the union of man and a woman in an irregular marriage warranted legal action against them under section 4 of the Offense of Zina (Enforcement of Hudood) Ordinance, 1979.
Nevertheless, Justice Bajwa dismissed the petition and concluded: “I do not agree with this contention because perusal of all these precedents transpires that all these decisions were rendered by the constitutional courts before December 1, 2006, when Protection of Women (Criminal Laws Amendment) Act, 2006 was not in existence.”