SHC orders trial court to decide abduction case against spouse

Karachi
The Sindh High Court directed a lower court on Saturday to pass an appropriate judgement on a police investigation report that sought the cancellation of an abduction case against the spouse of a woman who had converted to Islam from Hinduism and was pregnant at the time of her second marriage.
The directives came in a detailed verdict issued on the petition of Reshma, who sought the annulment of an FIR against her spouse registered with the Qubo Saeed Khan police station in Kambar Shahadkot on the complaint of her ex-husband.
Reshma submitted that she had converted to Islam and married Mumtaz Ali on December 24 last year out of her own free will. However, her ex-spouse, Nazeer, had registered a case against Mumtaz and his family.
Nazeer’s counsel, Kalpana Devi, submitted that the petitioner was a member of the Hindu community. She was already married to Nazeer at the time of her second marriage and out of their wedlock, three boys were born.
She submitted that the petitioner, who is currently six or seven months pregnant, could not marry without divorcing Nazeer in accordance with the law.
The petitioner’s counsel, Syeda Saima Zaidi, submitted that Reshma, being sui juris, had embraced Islam and thereafter entered into a valid contract of marriage with Mumtaz Ali out of her own free will. Therefore, she added, the allegations contained in the FIR regarding her abduction were false and her ex-husband wanted to harass and blackmail her.
She prayed to the court to quash the proceedings against the petitioner’s spouse and allow her to leave with her present spouse, Mumtaz Ali, as per her choice.
Assistant advocate general Saifullah cited two judgements of the Federal Shariat Court and the apex court according to which if a non-Muslim woman embraced Islam, her previous marriage stood dissolved and she could marry a Muslim as per shariah. He submitted that if a pregnant woman married after converting to Islam, the marriage was “irregular” but not void and after the delivery of the child, it could be re-solemnised.
He said after the statement of the petitioner, the FIR had proved to be false and frivolous and the court had the authority to quash it exercising the constitutional jurisdiction under Article 199 of the Constitution.
The complainant’s counsel requested the court to allow her client to file appropriate proceedings before a proper court of jurisdiction for the cancellation of the nikah of the petitioner with Mumtaz Ali which according to her was contrary to the Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946 and the Hindu Marriage Act 1955. She submitted that the petitioner could not be allowed to go with her present spouse and should be sent back to a shelter home.
An SHC division bench headed by Justice Aqeel Ahmed Abbasi after hearing the case directed the trial court to pass an appropriate order on the report of the investigation officer regarding the cancellation of the FIR within a week and submit a compliance report to the court through a member of the inspection team.
The court ordered that the petitioner should be kept at the shelter home until the delivery of the child.
The court also observed that the complainant would be at liberty to file appropriate proceedings before the family court for the cancellation of the nikah wherein he could raise all objections.
The court observed that the family court would decide the case in accordance with the law keeping in view the judgement of the Supreme Court and the Federal Shariat Court. It was also noted that the family court shall be at liberty to pass appropriate orders with regard to the fate of the petitioner’s second marriage. Disposing of the petition, the court also noted that if the complainant did not file legal proceedings before a proper court of jurisdiction within a month, the petitioner would be at liberty to leave and live with her present spouse and police would provide protection to the couple.