1987 PLP 518 (SCMR)

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. 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 P L D 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'. 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 P L D 1981 S C

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 Ali 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. The first argument of the learned counsel for the appellant was raised earlier in the case of Syed Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yusuf P L D 1963 S C 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." 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. 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 S C M R 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. Ahmed Yar the High Court unfortunately overlooked two pronouncements of this Court, dealing with the same question, namely, Ali Nawaz Gardezi v. Muhammad Yusuf P L D 1963 S C 51 and Abdul Mannan v. Safuran Nessa 1970 S C M R

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. 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. 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." 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." In the case of Ghulam Fatima no decision was given on the point. On the contrary an express observation was made in the following words‑- "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." 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." In Khula and Mubara't the dissolution proceeds on the wishes of one party culminating in a settlement between the parties and as such the statute takes over even where the parties have by a settlement arrived at dissolution. The requirements of section 7 of the Ordinance had to be observed and it is not the case of any of the parties that it was observed. 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. In the case of Jahanara Khatun an honest and reasonabsle belief was held to be a pre‑condition for avoiding the penal consequences and in that case the wife who was being prosecuted had obtained a certificate from the Marriage Registrar about the dissolution of her marriage in exercise of a power delegated to her and mentioned in the Kabinnama. The High Court in that case was cautious enough to remark that "it is true marriage with another person during the subsistence of an earlier marriage is punishable under section 494 of the Penal Code but each case has to be decided on a due consideration of the facts and circumstances of that case". 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. The last contention of the learned counsel for the appellants appears to have some substance. From the evidence brought on record it does not appear that Javid Ali was close 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. The appeal of Javid Ali 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. S. Q./4436/S Order accordingly.