ABDUL GHANI Vs. AZIZUL HUQ

JUDGEMENT

(1.) I have had 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 Mahomedan 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 Mahomedan law the second marriage of the woman during the period of iddut may be, there is no foundation for any charge under Section 494 of the 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 Mahomedan 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 Mahomedan 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 494/109 of the Indian Penal Code must be quashed, and the Rule made absolute. Sharfuddin, J.