Legal Soundness of the Decision on Bushra Bibi’s Nikah During Iddat

Ira Nawaz Osto Featured, Judgment Analysis, Laws & Judgments5 comments

On 3rd February, 2024, senior Civil Judge Qudrat Ullah in the case titled Khawar Fareed Maneka vs Imran Ahmed Khan and Bushra Bibi, etc. convicted the former Prime Minister Imran Khan and his wife Bushra Bibi under section 496 (marriage ceremony fraudulently gone through without lawful marriage) of the Pakistan Penal Code (PPC). Both have been sentenced 7 years of imprisonment, along with an imposition of fine of Pakistani rupees 500,000 each. The decision has given rise to obvious religious turmoil among the nation, putting an inherently sensitive aspect of Shariah under the cloud of confusion.

Having said that, does the decision have an actual legal basis backed by Islamic injunctions and the support of legal precedents set by the higher courts of Pakistan? This article will examine the relevant law and precedents which may raise thought-provoking concerns about the legality of the decision.

For context, section 496 reads as follows:

“Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine.”

The essence of the provision in the concerned case was taken to mean that Mr and Mrs Khan (“the parties”) married each other knowing that their marriage would not be valid or lawful for the reason that Mrs Khan was allegedly observing the period of iddah following her previous divorce from Mr Mankea while she entered into nikah with Mr Khan. As per the statements issued by Mr Maneka (former husband of Mrs Khan) himself during various talk shows and interviews, before lodging a complaint under section 496 against the parties, he and Mrs Khan had been separated for 6 months preceding their formal divorce. Furthermore, according to Mr Maneka, he had sent divorce papers to Mrs Khan on 14th November, 2017 while the parties entered into marriage on 1st January, 2018 and made a public announcement by sharing photographs on 18th February, 2018 i.e. 94 days after the divorce.

However, according to Mrs Khan, she had been divorced by Mr Maneka verbally in April 2017 and had completed her iddah before marrying Mr Khan. Regardless of whether this stance of hers is disregarded, the matrimonial union between the parties cannot be deemed to be unlawful or void by any stretch of the imagination. According to the settled principles enunciated in Mulla’s Mohammedan Law which have been upheld by the courts of Pakistan on numerous occasions, a marriage contracted by a woman during her iddah may be irregular (fasid) but not void. Section 253 of Mulla’s Mohammedan Law, cited in Muhammad Arif vs Shahid Mehmood and another (PLD 2020 Islamabad 443), draws distinction between an irregular and void marriage in the following words:

253 (1) A marriage which is not valid may be either void or irregular.

(2) A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus, a marriage with a woman prohibited by reason of consanguinity (S.250), affinity (5.251), or fosterage (S.252), is void, the prohibition against marriage with such a woman being perpetual and absolute (a).

(3) An irregular marriage is one which is not unlawful in itself, but unlawful “for something else”, as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstance, such as the absence of witnesses.

Thus, the following marriages are irregular, namely…

…(c) a marriage with a woman undergoing iddat (S.247)…

From the above-quoted extract, it can very well be inferred that the marriage union between the parties was not inherently void even if Mrs Khan had been observing iddah. It might have only been irregular which could have been rectified by removing the ‘temporary impediment’ i.e. by contracting a fresh marriage upon the completion of the iddah period. It is pertinent to mention that as per the statement of Mufti Saeed who officiated the nikah, he himself solemnized the nikah of the parties on 1st January, 2018 and then again in February 2018 upon the expiration of Mrs Khan’s iddah period, reflecting that the temporary obstacle was removed by converting the ‘irregular’ status of the marriage to ‘valid’. This point is further substantiated by the decision of the Federal Shariat Court in Muhammad Riaz and another vs The State (2011 SD 581) wherein it was held that an irregular marriage automatically became regular the moment the bottleneck was removed i.e. when the iddah period expired. Therefore, the marital union between the parties was made regular and valid upon performance of the nikah again.

Furthermore, an act is only deemed unlawful if it is strictly prohibited by the law of the state for the time that it is in force or if in contravention of Shariah law. Nevertheless, an irregular marriage, for whatever reason, has never been viewed to be against Shariah. The higher courts of Pakistan, in consonance with the Islamic principles laid down by Mohammedan Law, have always held that the union between a husband and wife created through an irregular marriage before the completion of iddah by the wife shall not be deemed un-Islamic or against Shariah (PLD 2021 Balochistan 28; 2016 CLC 717 Lahore; 2004 YLR 619). Therefore, it is not a legally backed view to consider the parties’ marriage unlawful under section 496 of the PPC for the sole reason that if an act is not classified as ‘unlawful’ per se by Shariah or the laws of Pakistan, then the awareness of both Mr and Mrs Khan regarding the fact that Mrs Khan had been observing iddah at the time of contracting the nikah shall not have a negative bearing on the marriage under section 496 and, simultaneously, the knowledge of the same fact shall not be taken to corroborate any fraudulent or dishonest intent on part of both the parties. The parties shall then be deemed ‘lawfully married’ for the purposes of section 496 of the PPC.

Additionally, the duration of the iddah period has been explored by the Shariat Appellate Bench of the apex court of Pakistan in Allah Dad vs Mukhtar (1992 SCMR 1273) wherein it was held that the Holy Quran did not explicitly lay down an iddah period constituting 90 days, rather the divorced woman was obliged to observe iddah for three menstrual courses. The judgment quoted Hanafi jurists who believed that the minimum period of menstruation was 3 days, therefore the minimum period of iddah could be 39 days as during that period a woman could possibly menstruate 3 times. 

“And the divorced woman shall wait for three periods of menstruation.”

[Quran 2:228]

As a result, a marriage contracted by a woman after 3 periods of menstruation shall be a valid marriage according to Shariah. That being so, if Mrs Khan was divorced on 14th November, 2017 and contracted marriage with Mr Khan on 1st January, 2018, the intervening period comprises 48 days, making their marriage valid. If this approach is taken, then even the doubt of their marriage being an irregular one does not sustain either. While considering this, one must also not discount the statement of Mr Maneka conceding that he and Mrs Khan had not been living together for 6 months preceding their certified divorce.

Consequent to the above analysis, it will not be erroneous to deduce that if Shariah regarded irregular marriages as sinful, un-Islamic, illegal or prohibited, it would have stipulated punishments on account of considering the consummation of such marriages as zina and would have further termed the children born in such marriages as ‘illegitimate’. However, Shariah, instead of prescribing punishments, chose to formulate the method to legitimize an irregular marriage by merely removing the temporary obstacles. The rationale behind this is to save the dignity of the people in irregular marriages, make Islam an easy and practical religion to follow and not provide any reason to make a mockery of religion by twisting sensitive issues.

In light of this discussion, the court’s decision can be seen as suffering from a misreading, non-reading and misinterpretation of the law. The decision is also in clear dispute with Shariah and the judgments of superior and higher courts of Pakistan. It is thus expected that the decision will be appealed and turned down for justice and clarity to prevail.

For more socio-legal commentary on the topic by Courting The Law’s Editor on X (Twitter) in light of technological advances and recommendations from Islamic scholars that women’s personal accounts may sufficiently be treated as first-person testimonies:

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

Ira Nawaz Osto

Author: Ira Nawaz Osto

The writer is an advocate based in Lahore, Pakistan. Her areas of practice include family, civil, company and consumer litigation and strategic advice to corporate entities on different matters. She holds an LLB (Honours) degree of the University of London and has keen interest in socio-political and legal matters.

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