AHMED KOYA Vs. AMINA BEEBI

JUDGEMENT

(1.) THIS appeal is against acquittal in a complaint under s. 494 IPC The case of the complainant, who is a Muslim, is that his wife the 1st accused, married the 3rd accused at a time when his marriage with the 1st accused was subsisting and knowing that it was subsisting. The 1st accused was thus the principal offender under S. 494 IPC. , and the other accused abettors thereof. The complainant stated in his evidence that his marriage with the 1st accused was on 1-3-1964; but from 1-8-1965 be was prevented by his father-in-law the 2nd accused, from approaching his wife, on the allegation that he embraced Ahamadeeya faith. The 4th accused is the Valiya Khasi of Kozhikode who published a a statement in the "sunni Times" (Ex. P-1 dated 15-11-1965) to the effect that the marriage between a Sunni male and Sunni female would become automatically dissolved the moment the husband becomes a khadiyani. THIS opinion, according to the complainant is wrong. A registered notice was issued by the complainant to the Khasi questioning the propriety of his opinion. It was from a news item that appeared in "pradeepam" under date 21-1-1969 that the complainant came to know that his wife the 1st accused, contracted marital alliance with the 3rd accused. The position taken up by the accused in that the 1st accused entered into marital alliance with the 3rd accused in the bonafide belief that by embracing Ahamadeeya faith the complainant ceased to be a Sunni muslim and that resulted in the dissolution of marriage-with the 1st accused. It is also the case of the accused that they were emboldened to contract the second alliance by the opinion given by the khasi that the marriage automatically came to an end when the husband embraces ahamadeeya faith.

(2.) LEARNED counsel for the Appellant argues this impression, viz. , that by embracing Ahamadeeya faith the marriage would automatically stand dissolved is wrong and against the very tenets of Islam. Counsel relied in this connection on a Division Bench ruling of the Madras High court in Narantakath Avullah v. Parakkal Mammu (ILR 45 Madras 986 ). Their lordships have held that joining the Ahamadeeya sect will not amount to apostasy so as to sever the marriage tie. The learned judges further held that the Ahamadeeyan's deviation from his faith is not such as to involve the abandonment of any of the essentials of Islamic law. One of the fundamental principles of his faith is that no prophet can appear after the Holy Prophet even from among his followers and the Ahamadeeyans deviated from this principle by accepting Ahamed as their prophet or preceptor. In coming to the conclusion that embracing Ahamadeeya faith is no apostasy, learned judges relied very much on the following principles or fundamentals of the Ahamadeeya faith. Ahamed's principles stated in his own words were: "we are Muslims by the Grace of God; Musthafa, the holy Prophet of Arabia is our leader and guide. The wine of our spiritual knowledge is from the cup of the Book of God, which is called the Koran. Every prophethood has found its culmination in thai Messenger of God, whose name is muhammed. The revelation and inspiration that wo receive have not been granted us independently but it is through him that we have received this gift. "

(3.) THE explanation to the section provides that the section" will not apply to any person who contracts marriage during the life of a former husband or wife, if such husband or wife at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time, provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted, of the real state of facts so far as the same are within his or her knowledge. On a construction of the section it is possible to argue that criminal intention is no part of the offence. Justice Ramaswamy of the Madras High Court would observe In re Arcot Citizen Bank Ltd. V. Arcot AIR 1957 675 that: