1976L77 (PLP)

Nemo for the State. Ch. Feroze Din for Respondent No.

2. Date of hearing : 17th November 1975. This petition, filed under section 561‑A, Cr. P. C. seeks the quashment of a criminal proceeding instituted against petitioner Noor Muhammad and others under sections 494 and 406 read with section 109, P. P. C.

2. The case arose from a direct complaint filed by Abdur Rashid alleging that the nikah of Mst. Amiran had been performed with him in 1958 in the presence of her father Noor Muhammad (petitioner) and others, that their shadi was fixed for a date in the month of Sha'aban in 1974 and gold ornaments and clothes worth Rs. 2,000 were given by the complainant's father for the occasion, but ten days before the date, Noor Muhammad and others sent information to his (complainant's) parents that they would not send the girl to him as they were giving her in marriage to Bashir Ahmad, that the complainant referred the matter to the Union Council for restraining Noor Muhammad and others from performing the second marriage of the girl, but that in spite of a notice from the Union Council, Noor Muhammad and others got the second marriage performed. The complainant, therefore, prayed for action against Mst. Amiran, her father Noor Muhammad and nine others under section 494, P. P. C. The learned Magistrate after recording the summary statements of the complainant and two others issued process against Mst. Amiran, Noor Muhammad and five others under section 494/406/109, P. P. C.

3. The contention is that the complaint does not make out any criminal ofi'euce inasmuch as the nikah of Mst. Amiran with complainant Abdur Rashid, even if any, had been performed during her minority and the same had been annulled by Mst. Amiran in the exercise of her option of puberty by the fact of her subsequently contracting marriage with Bashir Ahmad. It is not in controversy that the alleged nikah had been performed during the minority of Mst. Amiran. It can also easily be inferred from the complaint that the marriage bad not been consummated. The marriage having taken place in 1958, the girl must be over 15 in 1975 at the time of the subsequent marriage. In a suit for jactitation of marriage filed on 18‑2‑1975 she had given her age as

16. In fact, it is nobody's case that at the relevant time she was over

18. Admittedly, no decree of dissolution of the previous marriage had been obtained under the Dissolution of Muslim Marriages Act (VIII of 1939). Where a girl has been given in marriage during her minority by somebody other than the father, or the grand‑father she undisputedly has they option under the Muslim law to repudiate her marriage on attaining puberty and for such repudiation a Court's decree is not necessary. The mere fact of her entering into a subsequent marriage on attaining puberty amounts to repudiation of the earlier marriage, vide Shaff Ullah v. Emperor (A I R 1934 All. 589). Where, however, the minor girl has been given in marriage by her father, as it is in the present case, such right of the girl among Hanafis, was considered hedged with further condition that she had been given away, in marriage either "carelessly" or "wickedly". Such con dition was, however, done away with by section 2 (vii) of the Dissolu tion of Muslim Marriages Act (VIII of 1939) and the distinction between marriage of a minor girl by her father and by some other guardian abolished, and the repudiation by the woman of her marriage performed during her infancy was made subject only to two conditions i. e. (i) She repudiates the marriage on attaining the age of 15 and before the age of 18 ; and (ii) the marriage has not been consummated.

4. The question that now arises for determination is whether the mere act of contracting a subsequent marriage by such woman amounts to her exercise of the right of repudiation of the earlier marriage performed in her minority without there being a decree dissolving that marriage. This question had been examined at some length in Muhammad Bakhsh v. Crown (P L D 1950 Lah. 203). After discussing the Muslim law on the point, the learned Single Judge had relied on the following in Ameer Ali's Muhammadan Law, Volume II "But it does not follow from this that if a woman who has exercised the option were to contract another marriage, believing that she was entitled to do so, she would make herself liable to punishment under the criminal law. The validity of the rescission does not depend on the imprimatur of the Qazi, as the judicial declaration is needed to provide judicial evidence in order to prevent disputes, and judicial confirmation and authentication of the exercise of the right. Ex‑Hypothesi, when a girl who was given by her mother in marriage during infancy on attaining puberty rescinded the contract, and married another person, she could not be convicted of bigamy although the Judge had not made his decree." The learned Judge had consequently held : "The better view, therefore, seems to be that the Court's order is not essential for imparting validity to the exercise of the option of puberty and that in any case, a de‑laration can be given by the Court itself even in the course of criminal proceedings initiated under section 494, Indian Penal Code to the effect that the first marriage stands dissolved by the option of puberty having been exercised." The above view appears to have held the field. In Mst. Sardar Bano v. Saifullah Khan (P L D 1969 Lah. 108) it had similarly been held : "The statute does not prescribe any particular form or procedure for repudiation of marriage : it may be by oral word or even by conduct signifying rejection of marriage. The essence of the matter is the actual repudiation of marriage before attaining the age of 18 years by the woman. Till then the marriage remains inchoate, as it were, liable to dissolution of unilateral repudiation of the woman. In other words the fate of the marriage hangs by the slender thread of unilateral option to be exercised by her before attaining the age of eighteen years. Once it is exercised, the marriage stands dis. solved." In Mst. SarwarJan v. Abdul Majid (P L D 1965 Pesh. 5) it had, likewise, been held "The withholding of assent may be expressed in a variety of ways. It may be indicated by the fact that without having recourse to institution of suit for dissolution of marriage the girl may, where there has been no consummation and provided also that she is not more than 18 years, get remarried, as held in Muhammad v. Emperor (1401 C 617).

5. In the given circumstance of the present case, the previous marriage, if any, with the complainant stood annulled by communication of the message that the girl would not be sent to the complainant as she was going to be married to Bashir Ahmad, and by the act of the girl herself in contracting the second marriage on attaining puberty and before consummation of the earlier marriage. Neither she nor any of the other accused is as such liable under section 494, P. P. C.

6. Learned counsel for the respondent then contended that as the petitioner has been summoned not only under section 494, P. P. C. but also under section 406, P. P. C., the proceeding could not be quashed. 1, however, find that neither the complaint, as it is, nor even the summary statements recorded of the complainant and his witnesses, disclose the ingredients of an offence under section 406, P. P. C. or of any other offence under the Penal Code. All that has been said in the complaint and the summary statements is that the complainant's father had given ornaments and clothes worth about Rs. 2,

000. There is no mention that the accused had refused to return the same. Even if a refusal be implied, the mere refusal would not give rise to a criminal offence. See Riyazuddin and 2 others v. The State and another (1971 P Cr. L J 1053) and Umtul Maqsoom v. Hassan Din and 3 others (1973 P Cr. L J 319). In this view of the matter, no criminal case can be said to arise on the basis of the complaint lodged by Abdul Rashid.

7. The criminal proceeding is, therefore,, clearly liable to be quashed and I order accordingly. s. p. Proceeding quashed.