A legal grey area

February 25, 2024

Imran Khan’s conviction in the Iddat case marks a severe departure from both Sharia law and the precedents set by superior courts

A legal grey area


odern Muslim family law has struggled to reconcile the civil code with the form of marriage under shariah. The difficulty was highlighted most recently in the case brought against former prime minister Imran Khan and his wife Bushra Bibi by her former husband, Khawer Maneka.

Maneka questioned the validity of Khan and Bibi’s marriage, alleging further that it was solemnised without due regard to the iddat period as set out in Islamic injunctions. The determination of a failure to complete the prescribed iddat and consequences thereof depend upon the classification of a marriage.

Islamic jurisprudence (fiqh) recognises three categories of marriages, namely, regular marriage (sahih), irregular marriage (fasid) and void marriage (batil). The categorisation determines the legal consequences of a marriage, especially with regard to the rights and duties of the spouses and the status of their children.

A regular or valid (sahih) marriage meets all the requirements set forth by Islamic law. A void (batil) marriage has no legal effect from its inception because it violated a fundamental prohibition in Islamic law.

There are various grounds for a marriage to be declared batil. For a valid marriage, the parties must not be related by blood, foster relationship or affinity. A void marriage confers no rights and imposes no obligations on the parties involved. Children from a void marriage have no inheritance rights.

In between, is an irregular or fasid marriage, one that fails to meet some but not all the conditions of a valid marriage. Some of these impediments to the marriage are temporary in nature. The spouses may not be entitled to all the rights of a regular marriage, such as inheritance rights, until the flaws are corrected. However, the children from such a union are considered legitimate.

Unlike a batil marriage, which is not a marriage at all, an irregular marriage can be regularised in certain circumstances. A fasid marriage requires separation. However, where the irregularity is temporary, it can be corrected.

A failure to complete the iddat period touches upon two distinct problems. First, when the woman is in her iddat period and contracts a new marriage, it is classified as an irregular or fasid marriage. The flaw can be addressed by separation of the parties. Once the iddat period is completed, the marriage can be re-solemnised. This, in essence, is a temporary restriction on the marriage. A different problem emerges when a person has been divorced by triple pronouncement of talaq. Opinions regarding its classification diverge as to whether it is a batil marriage or a fasid one. The classification of such a marriage can render the consequences for the parties uncertain. This divergence is what seems to have unfolded before Civil Judge cum Judicial Magistrate Qudrat Ullah in Islamabad in the case against Khan and his wife, Bushra Bibi.

Khan and Bibi were sentenced to seven years in prison after the judge convicted the couple under Section 496 of the Pakistan Penal Code which deals with the act of dishonestly — or with fraudulent intent — going through a marriage ceremony without being lawfully married. The contention was that the marriage between Khan and Bibi was conducted without observing the iddat period following Bibi’s divorce, suggesting a lack of lawful basis for their marriage.

No matter which version is to be believed… the alleged irregularity in the marriage can be corrected and should not have led to criminal charges, leave alone imposition of penalties. 

Mullah’s Mohammedan Law, upheld by Pakistani courts, differentiates between void and irregular marriages in its Section 253 and has been cited in numerous cases including in Muhammad Arif vs Shahid Mehmood and another, noting that an irregular marriage can be regularised on the removal of impediments, like the completion of the iddat period.

In a similar case brought before the Lahore High Court in 2022, Justice Ali Zia Bajwa delivered a pivotal ruling which, at the time was hoped, would clarify the nuances of what constitutes an irregular marriage versus an unlawful act. In this case, one Ameer Bakhsh had approached the court believing that his former wife had transgressed Islamic law by entering into another marriage without waiting for the mandatory period of iddat to conclude, and should therefore be penalised under the strictures of the Offence of Zina (Enforcement of Hudood) Ordinance of 1979. The district court of Muzaffargarh had previously dismissed Bakhsh’s application for the registration of a case under the charge of zina, a decision he hoped the LHC would overturn. However, Justice Bajwa, after careful consideration, ruled that a marriage contracted by a woman before the completion of the iddat period, while irregular, did not fall in the category of unlawful. He pointed out the distinction between a fasid and a batil marriage, explaining that while the former may have its own legal repercussions under the Muslim Personal Law, it cannot be treated as void or lead to penal consequences under the laws concerning zina. This judgment underscored a critical distinction within Islamic law, emphasising the need for a nuanced understanding of its principles.

Justice Bajwa further noted that even if the petitioner’s account were accurate, the subsequent marriage would be considered irregular but not void, thus not justifying legal action under the Zina Ordinance. In his concluding remarks, Justice Bajwa also referenced the Protection of Women (Criminal Laws Amendment) Act, 2006, indicating a shift in legal interpretations since its enactment.

However, such an approach was not adopted in the case against Khan and Bibi. There are clear indications of the temporary nature of the non-completion of the iddat period being an impediment to a sahih marriage, repeatedly upheld in the past by various courts. Even in the case at hand, if triple pronouncement was at issue, Bibi’s statement declaring her divorce to have occurred in April 2017 and marriage with Khan being solemnised in January 2018, clearly indicated that sufficient iddat time had passed before the marriage with Khan. No matter which version is to be believed the alleged irregularity could be corrected and would not lead to criminal penalties.

The conviction of Khan and Bibi marks a severe departure from both Sharia law and the precedents set by superior courts in Pakistan. An irregular marriage, while not considered void ab initio, exists in a legal grey area. It may be recognised as valid upon the removal of the impediment, yet it raises questions about the legal and social status of the couple during the period of irregularity.

This situation challenges the community and legal authorities on how to address such unions, especially concerning inheritance, custody and marital rights. Various schools within Islam have varied interpretations and solutions for irregular marriages. In countries with legal systems that incorporate Islamic law, the application of traditional principles to contemporary marital practices can present challenges. The legal system must navigate between upholding Islamic law and accommodating the evolving nature of family dynamics and societal norms.

Beyond legal implications, there are ethical and moral considerations regarding the individuals involved in an irregular marriage and their families. The community’s perception and the potential stigma attached to an irregular marriage due to non-completion of the iddat period can have significant social repercussions, raising issues like compassion, forgiveness and societal judgment in line with Islamic values.

The writer is an advocate of the High Court, a founding partner at Lex Mercatoria, and a visiting teacher at Bahria University’s Law Department. She can be reached at minahil.ali12@yahoo.com

A legal grey area