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Criminal Revision Application No.225 of 1975, decided on 5th September, 1982.

---S.494--Bigamy, offence of--Petitioner on attaining puberty, exercising her right of puberty and repudiating her marriage of minority with complainant, by contracting second marriage--Conviction of petitioner on charge of bigamy, held, legally not sustainable--Conviction and sentence set aside, in circumstances.

150 1 C 138; P L D 1956 Lah.404 and P L D 1950 Lah.20 ref:

M. Nazir Alam for Applicants.

Agha Ghulam Ali for the State.

The main contention raised by the learned Advocate for the applicant in support of the above petition is, that admittedly Mst. Hanifa applicant No.3 was minor at the time when Nikah was performed in 1948, with one Muhammad Bux, the complainant and consequently on her attaining puberty, she had a right to repudiate the said marriage, as it was not con summated. The learned Advocate for the applicants submitted, that exercise right of puberty can be done in various manners and one of such manners could be, by entering into second marriage without getting the first Nikah annulled. In support of this contention the learned Advocate for the applicants relied upon case Shafiullah v. Emperor 150 1 C 138 and submitted that on this ground alone the conviction of the present applicants cannot legally be sustained, in addition to all other grounds mentioned by the applicants in their petition.

The learned Advocate appearing for the State supports the above petition for setting aside the conviction and sentences awarded to the applicants, in view of the law discussed in 150 1 C 138 and also P L D 1956 Lah. 404 and P L D 1950 Lah.20.

I have gone through the R a P of the learned trial Court as well as impunged judgment. It is an admitted position, that Mst. Hanifa was minor in 1948, when her Nikah with complainant Muhammad Bux was performed and as such she had a right of puberty to repudiate the said marriage, if it was not consumated on her attaining buberty. It is also admitted position, that the marriage of applicant No.3 with the complainant Muhammad Bux was not consumated and consequently her entering into second marriage with applicant Arab, after attaining' puberty, amounts to exercise of the right of puberty by her and would amount to repudiation of her marriage of 1948, with the complainant Muhammad Bux, when she was minor. This view of mine is also supported by the case reported in 150 1 C 138 as well as by cases reported in P L D 1956 Lah. 404 and P L D 1950 Lah. 103, that the applicant No.3 had a right of puberty to annul her marriage, with the complainant on attaining her puberty. This point has not at all been taken into consideration by both the learned Courts, which is a legal point and goes to the root of the case filed against the applicants and has been raised in the course of arguments by the learned Advocate for the applicants before me. This is a legal point and has been raised in the course of arguments before me, with which I am in full agreement, in view of the case law cited by the learned Advocate for the applicants.

In view of my conclusion, that applicant Mst. Hanifa had a legal right to repudiate her marriage with complainant on her attaining age of puberty and in view of my finding that by contracting second marriage with applicant Arab, she exercised such right, the conviction of the applicants by impugned judgment cannot legally be maintained. ,

Therefore, I allow the above petition and set aside convictions and sentences awarded to the applicants by both the learned lower Courts by their impugned judgments and acquit the applicants and discharge bail bonds executed by them.

The above revision application stands granted, in the terms of the above order.

S.G.D. Revision allowed

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