LAHORE: The Lahore High Court (LHC) has ruled that a marriage without completing iddat — a period spanning about four months after separation between a married Muslim couple or death of the husband — cannot be treated as void and does not constitute the cognisable offence of zina (adultery).

In a verdict issued on a petition of a man who said his wife committed zina by contracting a marriage without completing her iddat, Justice Ali Zia Bajwa explains that a woman’s marriage before completion of her iddat period would be “irregular”, but not void. In this case, iddat refers to a period a woman has to observe after dissolution of a marriage.

Petitioner Ameer Bakhsh had challenged a decision of ex-officio justice of peace of Muzaffargarh whereby his application for registration of a criminal case against his former wife and her new husband was dismissed.

He submitted that the respondent, Amina Bibi, was legally married to him and residing in his house being his legally wedded wife. She, with mala fide intentions, secretly filed a suit for dissolution of marriage and got the same decreed ex-parte against him from a family court.

According to verdict, such a marriage can be called irregular

The petitioner challenged the dec­ree and his application is still pending before the family court concerned.

The petitioner said his wife after obtaining the ex-parte decree got married to Mohammad Ismail the next day without observing iddat as ordained in the holy Quran. He said this act of his wife and the respondent 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.

However, he said, the justice of peace dismissed his application without applying his judicious mind and without appraising the facts of the case in their true perspective.

In his verdict, Justice Bajwa observes 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 adds.

Published in Dawn, January 8th, 2022

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