1. I have bad the advantage of reading the judgment which is about to be delivered by my learned brother, and I entirely agree with him that the marriage of a Muhammadan man and woman is rendered ipso facto void by the apostacy of the former; though there are certain methods, as pointed out by my learned brother, by which the marriage tie may be renewed.
2. But what I wish to lay stress upon is that whatever view be taken of the uncertain status of the parties during the period of Iddut and however illegal and void under Muhammadan Law the second marriage of the woman during the period of Iddut may be, there is no foundation for any charge under Section 494, Indian Penal Code, against her. Her second marriage is not void by reason of its taking place during the life of a prior husband but by reason of a special doctrine of the Muhammadan Law of Iddut with which the Indian Penal Code has nothing to do.
3. The parties in this case appear to have acted in good faith on what they believed to be a sound interpretation of a very difficult point of Muhammadan Law. Even though they were mistaken, the consequences could not be visited upon them in a Criminal Court administering the penal laws against bigamy. The consequence is a purely civil one, namely the nullity of the second marriage. For these reasons, I agree that the commitment of the petitioners to the Sessions under Section 494 and Section 494 read with Section 109, Indian Penal Code, must be quashed and the Rule made absolute,
4. This is a Rule calling on the Magistrate and on the complainant to show cause why the commitment of the petitioners should not be quashed on the ground that the first marriage has been dissolved.
5. It appears that one Azizul Huq and Musammat Jaitan, both Muhammadans of the Hanafi sect, were husband and wife. Some years after marriage, the husband, Azizul Huq, became a Christian, but within a month and-a-half he again reverted to Islam. During the above interval, the woman, Jaitan, married a man named Abdul Aziz, and her father gave her in marriage to the new husband.
6. The first husband, after his conversion to Islam, complained, with the result that Musammat Jaitan, her father Abdul Ghani, and her second husband, Abdul Aziz, have been committed to the Court of Session for trial, the first under Section 494, Indian Penal Code, and the other two for abetment of that offence. On an application by the three accused under Section 215, Criminal Procedure Code, to quash the commitment, the present Rule was granted.
7. The point of law on which the present application was made is, that as the Muhammadan law does not permit a marriage between a Muhammedan female and a non-Muhammedan male, the marriage tie in the present case was broken on the complainant's conversion to Christianity. It was also contended that in such a case Musammat Jaitan did not marry Abdul Aziz during the life-time of a husband.
8. On behalf of the complainant, it was urged that inasmuch as Azizul Huq reverted to Islam during the period of Iddut, he could continue his conjugal rights without re-marrying Musammat Jaitan and on his behalf a certain passage from Raddul Mohtar was relied on, in order to show that the marriage does not become dissolved instantly the man abandons Islam. We have consulted the original book in Arabic and the context relied upon is: (Al murtaddo eza lahika bida ril harbi fatallaka imra' atahu la yaqao wa in ada musliman wa niya fil Iddati fatallaqaha yaqao).
9. The translation of this passage is: if an apostate goes to Darul-Harab (an alien country where the laws of Islam are not in force) and arriving there divorces his wife, the divorce will not take place; but if he returns as a Muslim and divorces her during the Iddut period, the divorce will take place. (Vide, Ruddul Mohtar, page 425, Egyptian edition).
10. On the strength of the above doctrine, it is urged that the marriage tie does not absolutely break during the period of Iddut, for otherwise a divorce given by the husband after his return to the faith, would not be effective.
11. The view, however, of lawyers like the authors of the Hedaya, the Fatawai Alamgiri and some other works unanimously is that apostacy from Islam, whether it takes place before or after consummation, dissolves ipso facto the marriage tie.
12. The after-effects of separation through talaque (divorce) and apostacy are different. There are three forms of talaque, namely:
(a) Talaque Rajai. In this talaque, the husband says tallaqto-kay without any intention on his part that it should operate as talaque-Ba-in, which is the second form of talaque. In Talaque Rajai the woman has to observe Iddut, but during the period of Iddut if the husband reverts to Islam, he can continue his conjugal rights without a renewal of marriage tie.
(b) Talaque-Ba-in. In this form of talaque, the husband is required to utter the expression (Talluq-to kay) which means I renounce thee' with the intention that it should operate as Talaque Ba-in, the effects of which are that the woman has to observe Iddut, and if the husband relentp, he can continue his conjugal rights by a renewal of the marriage tie. (Tajdidi aqd.)
(c) Talaque Mognllaz. In this form of talaque, the husband is required to utter the above expression three times or he may say 'I give you three talaques.' The effects of this form of talaque are that the woman has to observe the Iddut period and she becomes Haram, that is within prohibited degrees and the husband cannot re-marry her until she has formed another connection by marriage with another man, co-habitation has taken place with this other husband and the latter has divorced her and she has observed the period of Iddut after her second divorce. The stage of the second marriage and the second divorce is technically called Halala.
13. From the above, it is manifest that in every form of separation caused either by talaque or apostacy, the woman has to observe the period of Iddut. There is consensus of opinion that a woman's marriage during Iddut is illegal, but in case of Talaque Rajai, the husband can continue his conjugal rights without a re-marriage if he relents during the Iddut.
14. There is a passage in Sharh Waquaya, Chapter 'Al Murtud,' page 377, Lucknow edition, which also lays down that after apostacy the marriage tie becomes null, but the man can still exercise his right of talaque. The passage referred to is: Wa batala nikahuhu wa zab-huhu wa sahha talaquhu.
15. I'lum ann-un-nikaha wazzabha batilane itti-jaqan, wattalaqu wal istiladu sahihani ittifaqun which means the Nikah (marriage) of the apostate with his Muhammadan wife becomes Batil that is null, but he can still legally divorce her.
16. It is clear from the above passage that in spite of the marriage tie having been absolutely broken in consequence of apostacy, the man has still the right, which is vested in him, to divorce his Muhammadan wife. It, no doubt, seems an anomaly that an apostate husband can divorce his Muhammadan wife. The Muhammadan jurists have explained the anomaly; as for example the author of Raddul Mohtar has explained it in the following passage: Fayaqao talaquhu-alaiha fil-iddutti mus-tat bian, faidatuhu min-hur-matiha alaihi badas-salasi hur-ma-tun mughai yatun biwat-i-zawiin akhara, which means that the object of vesting the power of divorce in the apostate is for a certain purpose only, namely, if an apostate recites the formula (Segha) three times and thus divorces his wife in the Mogullaz form of talaque, she becomes haram to him as stated above in the third form of talaque, that is to say, he cannot continue his conjugal rights with the woman without marriage or with a renewal of marriage without the intervention of a Halala.
17. On a reference to the different authorities, we are of opinion that Musammat Jaitan's marriage with the complainant became absolutely null at the moment he apostatized, and that from the date of his apostacy, he was not her husband and that he could re-marry her during the period of Iddut, if he reverted to Islam.
18. We have observed before that during the period of Iddut, a woman cannot marry another husband. In the present case she is said to have done so. Her marriage with Abdul Aziz is, therefore, invalid. Her act, therefore, may be considered as invalid and sinful and according to the jurists it is the duty of the Kazi to separate them and compel her to observe the Iddut period. In the present case we are not concerned with the question as to whether her second marriage was legal or not according to the Muhammadan Law. We are only concerned with the question as to whether her second marriage, if it can be called a marriage, took place during the life-time of a husband. On the authorities discussed above, we are of opinion that although her second marriage, having taken place during the period of Iddut, was not a legal marriage, yet she cannot be said to have gone through the form of the second marriage while her legal husband was alive. For the above reasons, we quash the commitment and make this Rule absolute.