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Criminal Revision No. 401 of 1964, decided on 25th January 1965.

‑Marriage with another person during subsistence of earlier marriage‑E6ch case to be decided on its own facts and circumstances‑Prosecution must prove mens rea to secure conviction‑Mere presence of Civil Court decree that previous marriage subsisted‑Nut enough‑Criminal Court should come to finding that criminal intent existed at time of alleged offence‑Woman contracting second marriage under honest and reasonable belief in existence of state of things which if true would afford her complete justification‑Cannot be convicted under S. 494‑Maxim: Actus non facit reum, nisi mens sit rea (the intent and act must both concur to constitute the crime).

The Queen v. Tolson 23 Q B D 168 ; Nakib Uddin Teli v. Nasaruddin Ahmad and others 4 D L R 367; Badal Aurat and another v. Queen Empress I L R 19 Cal. 79 and Karim Bakhsh v. Emperor A I R 1918 Lah. 217 ref.

Razzaq Rahman for Petitioners.

Nemo for the State.

In this case a Rule was issued on the Deputy Commissioner of Faridpur to show cause why the convictions and sentences of the petitioners should not be set aside.

The prosecution case, briefly stated, is that the accused petitioner Jahanara Khatun is the legally married wife of the complainant Abdus Sattar Molla and that during the subsistence of that marriage, a second marriage between Jonab Ali Bhuiya and herself has taken place on the 10th of February 1963. On these allegations, Jahanara has been placed on trial under section 494 of the Pakistan Penal Code and her father Khabiruddin as well as Abdul Khaleq who solemnised the marriage under section 494/109 of the Code.

The defence is that the accused Jahanara exercised Talaq‑e- Tawfeez and divorced her husband and obtained registration of the same. Thereafter the marriage between Jahanara and Jonab Ali Bhuiya took place on the bona fide belief that the earlier marriage stood dissolved.

Prosecution examined 6 witnesses in support of its case and the defence none.

On a review of the evidence led in the case the trial Court found that the second marriage took place at a time when the earlier marriage between the accused Jahanara and the complainant was in existence. He, accordingly, convicted and sentenced the accused petitioners.

On appeal the learned Sessions Judge affirmed the convictions and the sentences of the petitioners. He found that "there was marriage between appellant Jahanara and Abdus Sattar and both of them lived as husband and wife"‑ In support of this finding, the learned Sessions Judge has referred to a copy of the deed of divorce and her own statement made by her when examined under section 342 of the Code of Criminal Procedure. He has also found that there was marriage between Jahanara and Jonab Ali. The learned Sessions Judge has, therefore, referred to a judgment and decree of a Civil Court, obtained after the second marriage and expressed himself in the following terms:

"But I find from the record a copy of decree which proves that the marriage between appellants Jahanara and Abdus Sattar still subsists and in a suit brought by Sattar for restitution of conjugal rights he had obtained a decree on 28‑11‑63. Although the lower Court had no jurisdiction to decide the question whether marriage between Jahanara and Abdus Sattar subsisted still it is clear from this copy of decree of the Civil Court, which is competent to decide the point that the marriage still subsists. So I do not see how the conviction of the appellants by the Court below can be disturbed in this appeal when a competent Civil Court has already determined the question of marriage in favour of the complainant Abdus Sattar."

Mr. Razzaq Rahman, learned counsel for the petitioners submits that the accused Jahanara exercised the right of divorcing her husband as conferred on her in Kabinnama and she duly registered the exercise of such a power and obtained certificate from the Marriage Registrar and as such the petitioner cannot be convicted in the total absence of mens rea. It is true marriage with another person during the subsistence of an earlier marriage is punishable under section 494 of the Penal Code but each case has to be decided on a due consideration of the facts and circumstances of that case.

In this case Court of appeal below laid great stress on the Civil Court decree and took the view that it establishes the subsistence of the marriage between the complainant and the accused petitioner Jahanara and as such she committed an offence under section 494 of the Code. It appears that the petitioner Jahanara exercised her right of divorcing her husband, complainant Abdus Sattar on 8‑12‑61 and got it registered on the same day. Then after more than a year, on 10‑2‑63 the second marriage took place. There was no Civil Court decree in favour of restitution of conjugal rights of the complainant on 10‑2‑63. That decree was obtained by the complainant on 28‑11‑63. It is true the decree of the Civil Court will hold good unless reversed by a superior Court. But, in this criminal case we are concerned with the criminal intent of the accused persons. They had before them registration certificate of the divorce unaffected by a Civil Court decree of the date of the marriage. In these circumstances, it can be said that the accused persons bona fide and reasonably believed that no relationship of husband and wife existed between Jahanara and the complainant Abdus Sattar on the date of second marriage and that there was total absence of mens rea. That being the position she cannot be convicted under section 494 for having contracting a second marriage.

The learned counsel for the petitioners placed reliance in support of his contention on the case of The Queen v. Tolson (23 Q B D 168). In that case attention of the Court was directed upon a proviso similar to one to be found in section 494 of our Code. But in this case we are concerned with the main provision of section 494. General observations in the English case, are however wide enough to indicate that the prosecution has to prove mens rea to secure conviction in a case of this nature. The view expressed by me finds support in the observations which I shall presently refer. Wills, J. observed as follows:‑

"It is, however, undoubtedly a principle of English criminal law, that ordinarily speaking a crime is not committed if the mind of the persons doing the act in question be innocent. "It is a principle of natural justice and of our law," says Lord Kenyon, C. J., "that actus non facit reum, nisi mens sit rea. The intent and act must both concur to constitute the crime."

The learned Judge further observed:

". . . though the words of the statute seemed to exclude any other excuse, yet the circumstances must be taken into consideration; otherwise a law calculated for wise purpose might be made a handmaid to oppression . . . . . ."

Hawkins, J. also observed in the case as follows:

"The ground upon which I have arrived at this conclusion is simply this; that, having contracted her second marriage under an honest and reasonable belief in the existence of a state of things which, if true, would have afforded her a complete justification, both legally and morally, there was an absence of that mens rea which is an essential ,element in every charge of felony."

These observations also apply to the case before me. Even if, it is ultimately found by a Civil Court that the first marriage was in existence, the point for consideration for a criminal Court would be as to whether a state of things which the accused believed to have been in existence, if true, would have afforded her reasonable justification. On the facts found by the Courts below and referred to above, accused Jahanara had more than a year before second marriage got registration of the divorce. A Civil Court is to find out as to whether or not the first marriage is, in law in existence. A Criminal Court, on the other hand, is concerned to find as to whether the accused persons acted bona fide and in good faith in contracting the second marriage. In order to punish a person the Criminal Court must be able to come to a finding that the criminal intent was in existence. It is true, in this case the first marriage has been found to be in existence. That decree, until reversed, should determine the relationship between the accused Jananara and her former husband Abdus Sattar. But the criminal Court has to find as to whether the offence of Bigamy has been committed.

While dealing with a case under section 498 of the Penal Code, Afzal, J. in the case of Nakib Uddin Teli v. Nasaruddln Ahmad and others (4 D L R 367) observed as follows:

"In my opinion, this question can only be solved by a Civil Court and that a Magistrate would not be the competent person to discharge the function of the Civil Court to decide the validity or otherwise of the talak. Prima facie there is the deed of divorce showing dissolution of marriage between the complainant and Mokirannessa on 29‑1‑52 and the ends of justice does not deem it proper that adjudication on this point should be left to a Criminal Court and that the accused should be placed in jeopardy of a criminal trial."

If talak was invalid the first marriage is to be in existence. That is the province of a Civil Court. The Criminal Court is to find whether there was concurrence of the intent and act in constituting the offence. This view finds support in the above observation.

In the case of Badal Aurat and another v. Queen Empress (I L R 19 Cal. 79) Ameer Ali, J. expressed the view that no judicial order was necessary to effectuate the exercise of divorce. The divorce effected by a wife may subsequently be declared invalid by a Civil Court but the above observation indicates that a wife is permitted under the law to divorce her husband and can therefore bona fide believe that such a divorce is effective.

In the case of Karim Bakhsh v. Emperor (A I R 1918 Lah. 217) it was held that if an accused person by reason of mistake of fact thought that the previous marriage had been declared void by a Court of competent jurisdiction it would be deemed that the offence had not been committed. In the case before me there was no such declaration on the date of the second marriage but the divorce was effected and registration obtained. So, it is open to the petitioners to claim that there was, if any thing, a mistake of fact.

For the reasons stated above, the rule is made absolute and the convictions and sentences of the petitioners are set aside. They are discharged from their bail bonds. Fine, if paid, be refunded.

K. B. A.

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