Justice Ali Zia Bajwa of the Lahore High Court on Friday observed that a woman’s marriage before completion of her iddat (period a Muslim woman has to observe after the dissolution of marriage) would be “irregular”, but not void.
Amir Baksh had challenged the decision of ex-officio justice of peace of Muzaffargarh whereby his application for registration of a criminal case against his former wife Amina and her new husband Ismael was dismissed.
The petitioner had submitted that Amina committed zina by contracting a marriage without completing her iddat.
The petitioner submitted that the respondent was legally married to him and residing in his house being his lawful wife. She, with mala fide intentions, secretly filed a suit for dissolution of marriage and got the decree ex-parte against him from a family court.
He prayed that Amina, after obtaining the decree, got married to Ismael the next day without observing iddat as ordained in the holy Quran. Her act was against the teachings of Islam and amounted to committing of zina under the Offence of Zina (Enforcement of Hudood) Ordinance 1979, which is a cognizable offence.
The petitioner contended that the justice of peace dismissed his application without applying his judicious mind and without appraising the facts of the case in their true perspective.
Justice Bajwa observed that a Sahih (valid) marriage is the one which is free from all sorts of defects and infirmities and is in absolute conformity with the requirements of Shariah.
For a valid marriage, it is necessary that there should be no legal prohibition affecting the capacity of the parties to marry. A marriage which is short of a valid marriage will be termed an invalid marriage. There are two kinds of invalid marriages — irregular (fasid) and void (batil).
“Irregular (fasid) marriage is the one where the impediment to the validity of such marriage is temporary, while in case of a void (batil) marriage, such impediment is permanent,” he added.
The judge observed that a couple marrying without the woman completing her iddat cannot be charged with the crime of zina and dismissed the petition.
