1992 P Cr (PLP)

TANZIL-UR-RAHMAN, CJ.

On conclusion of the hearing, the appeal was dismissed by our short order, dated 12-12-1991, which is reproduced below:-- "Arguments heard. For reasons to be recorded later, the appeal is dismissed."

2. I have gone through the reasons for the above short order, written by my learned brother Mir Hazar Khan Khoso, J. I am in full agreement with the same. However, I would like to say few words on the point of the effect of contracting marriage with a married woman under Islamic Law.

3. It has been proved by evidence that Mst. Gul Sahiba was already married to Gulshan. P.W.1 Gul Hamad, complainant and father-in-law of Mst. Gul Sahiba, P.W.3 Syed Rahim, Nikah Khawan, P.W.4 Mst. Wazira, the mother of Mst. Gul Sahiba, P.W.8 Amir Dost Khan, witness of the marriage, P.W.10 Gulshan, the husband of Mst. Gul Sahiba and P.W.11 Khalid, another witness of the said marriage of Mst. Gul Sahiba with Gulshan, besides Mst. Gul Sahiba's her own statement under section 164, Cr.P.C. all go to prove the said marriage conclusively. It has also come on record and proved by evidence that Mst. Gul Sahiba was sold by the appellant or given in marriage for Rs.26,500 to Mian Gul, who contracted his marriage with Mst. Gul Sahiba, in lieu of dower, without knowing her that she was already married. In fact, he was assured by the appellant that Mst. Gul Sahiba was her sister, unmarried and virgin. But, soon after coming to know of the previous marriage, he produced her before the police. The appellant has, therefore, been rightly convicted under sections 13 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced by the learned Sessions Judge, Swat, as referred to in para. 1 of the judgment by my learned brother.

4. As regards the effect of another marriage, during the subsistence of the previous marriage, it may be stated that contracting marriage with a female married to another person has been prohibited in the Holy Qur'an, where it is laid down:-- (Also (prohibited) are women already married except those woman your right hands possess). (Al-Qur'an. Surer Al-Nisa, (The Women), iv:24)

5. Imam Razi has written in his commentary` on the Holy Qur'an that the word (` "l:,"r..J h ',) is governed by the words, (I sdub xi s) in the same manner as the word (`1t~...1 ') is governed by (",.y. ). In other words, contracting marriage with another's wife is, in the opinion of Imam Razi, as unlawful as contracting marriage with one's own mother.

6. There is no difference of opinion among the a'immah Arba'ah ( "il AZl ) (the founders of four Schools of Sunni Law) on the point that the female who is to be contracted into marriage with a male must be free from any other contract of marriage, i.e. she must not be under the marriage contract of someone else. It is essential for a female to be a fit subject (mahal) at the time of marriage contract. If she is married to some one else, she cannot D be a fit person for marriage with another. Moreover, when she is under marital obligations to one husband, such rights cannot be created in another's favour against her. It is, thus, not legally possible for both the husbands to exercise similar rights over one female at the same time. It is so stated by Ibn al-Abidin in Radd al Muhtar Vo1.II Chapter on `Iddat, p.624: (A woman married to another is not a fit subject (of marriage) and it is not possible to exist two proprietorships in one point of time in respect of one thing. Thus the contract (of marriage) did not become effective, the proprietorship being fasid). Consequently, marrying another's wife is unlawful, as also laid down in the I E following books of Fiqh:-- (It is not lawful for a man to marry another's wife) (Fatawa Alamgiriyyah: Vol.ll, p.7). (The marriage with another's wife is unlawful). (Al-Ahkam al- Shari'iyyah fil Ahwal al-Shakhsiyyah. Egypt. section 27).

7. There is, however, one exception: if the marriage is contracted without knowledge of the fact that the female is the wife of another person and the male cohabits with her, in such circumstance, for the reason of cohabitation and not on the basis of marriage itself, the connubial relationship shall be F governed by the rules of `Irregular Marriage' which, in fact, are the rules governing cohabitation-in-doubt. All Muslim jurists, on this account are unanimous in their view that the parties, as soon as they come to know of the illegality, must separate. If they do not separate of themselves, the Court shall IF get them separated.

8. In the instant case, Gul Mian, the second husband, no sooner he came to know of the fact that Mst. Gul Sahiba is the legally-wedded wife of Gulshan, he not only separated but produced her before the police. In such circumstance, the second husband Mian Gul was not prosecuted and rightly so, but Mst. Gul Sahiba knew it fully well that she was legally wedded wife of Gulshan at the time of contracting second marriage with Gul Mian and as such committed an offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and was, therefore, rightly convicted and sentenced in accordance with law by the learned trial Court. N.H.Q./658/F.S.C. Order accordingly.