Principles

·  Criminal Law—Bigamy—Mistake of law about prior marriage—No defence—Penal Code, s. 429

·  Criminal Law—Mistake of law—Bigamy—Penal Code, s. 44—No defence

·  Criminal Procedure—Bigamy—Reference to Sharia to determine validity of first marriage

 In a case of bigamy, mistake of law about a prior marriage is no defence. When an issue arises about the validity of a prior marriage in a criminal case, the case must be referred to Sharia Division.

 In a case of bigamy, mistake of law about a prior marriage is no defence. When an issue arises about the validity of a prior marriage in a criminal case, the case must be referred to Sharia Division.

 In a case of bigamy, mistake of law about a prior marriage is no defence. When an issue arises about the validity of a prior marriage in a criminal case, the case must be referred to Sharia Division.

Judgment

Abdel Mageed Hassan P.J. June 6, 1962:—I have to quash all the proceedings in the inquiry in NS-46-1962 (El Fasher) as it is wrongly started. Consequently the conclusion reached at must be wrong. I hold the opinion that in such cases the matter should first be referred to the Sharia Court to establish which of the marriages is the one binding and to find out whether there is any other second marriage or any endeavour towards such. That being done in the first place then the case will be clear in the Criminal Court, for if the first marriage was void the second will not be bigamous.

 As to the mens rea, I should like to point that the section strictly prohibits such a marriage and this shows that once the facts are proved then the mens rea is presumed. Then it is for the accused to disprove such presumption. We must always bear in mind that an honest and reason able error as to a question of fact, e.g., that the spouse is dead, may afford a defence. But an error as to a point of law, e.g., that the first marriage was invalid will not.

  For the above reasons I have to quash the whole proceeding and order the case be sent to the Sharia Court for settlement of the validity of the marriage.

   Editors’ Note.—See Civil Justice Ordinance, 1929,ss. 39 (b) and 4 (2).

 There was nothing in the record at the Province Court to indicate under what section the accused man was prosecuted; since the male defendant was apparently charged with marrying a woman knowing her to be married to another, the offence may have been under Penal Code, s. 88/429.