P L D 1981 Supreme Court 56

Present: Anwarul Haq, C. J., Dorab Patel and Abdul Kadir Shaikh, JJ

Mst. ZAINAB BIBI AND others-Appellants

versus

Mst. BILQIS BIBI AND others-Respondents

Civil Appeals Nos. 44 and 45 of 1974, decided on 24th June, 1980.

(On appeal from the judgment and order of the Lahore High Court dated 31-5-1972 in R.
F. A. Nos. 40%1952 and 100 of 1967).

(a) Evidence Act (I of 1872)-

- . Ss. 47 & 67-Handwriting and signatures-Proof-Person alleged to have issued and

signed a certificate going blind-Certificate required to be proved through some one
familiar with handwriting of person signing same - Appellant examining a witness and
such witness identifying signatures of signatory and also stating certificate itself having
been in signatory's handwriting-Witness not cross-examined on point and nothing
improbable in his claim of being familiar with signatory's handwriting-Certificate, held,
brought within ambit of S. 67 and onus shifted to respondent to prove same having been a
forged document.-[Handwriting].

(b) Evidence Act (I of 1872)-

-- Ss. 47 & 67-Document-Proof-Document duly proved under Evidence Act, 1872 - Held,
could not be rejected merely because author of document being not certain of having
executed same.

(c) Evidence Act (I of 1872)-

S. 67-Proof-Principles for appraisal of evidence in civil and criminal cases-Not entirely

same - Prosecution in criminal cases required to prove guilt of accused beyond
reasonable doubt-Position of defendant in civil suit-Not to be equated with that of
prosecution in criminal cases-Requirement in civil cases: proof adduced in support of a
fact to be such as to male a prudent man act upon supposition of existence of such fact.-
[Evidence].

Munir's Law of Evidence (Pakistan Edition), p. 28 ref.

(d) Evidence Act (I of 1872)-

Link 1

-- Ss. 11 & 35-Baptism Certificate-Relevancy-Baptism certificate though not falling

under S. 35, Evidence Act, 1872, yet not inadmissible for such reason and substantive
evidence for being a relevant fact - Question of appellant's conversion to Christianity
being not merely a fact in issue but also principal fact in issue and any fact making fact of
conversion highly probable or improbable being evidence, certificate, held, falls under S.
11, Evidence Act, 1872, and therefore substantive evidence and admissible in
evidence[Evidence].

Director of Public Prosecutions v. Kilbourne 1973 A C 729 ref.

(e) Muhammadan Law-

-- Effect of apostasy from Islam in light of law as standing in 1924.

Page No. 1 of 21
Amir Ali's Mohammadan Law, 1st, 4tb, 6th Edns., pp. 276, 350, 444-445, 576; Tanzilur
Rehman's Code of Personal Law, 1978 Edn., p. 637; Imam Din v. Hassan Bibi 1906 P R
85; Amin Beg v. Saman I L R 33 All. 90; Zuburdust Khan v. His wife (1870) 2 N W P H
C Rep. 370 ; Abdul Ghani v. Azizul Haq I L R 39 Cal. 409; Nowroz Ali v. Aziz Bibi 1876
P R 124; Khan Bibi v. Pir Shah 1884 P R 132 ; Allah Bakhsh v. Amir Begum 1899 P. R.
61 ; Ghaus v. Fajji and others A 1 R 1915 Lah. 14 ; Mt. Bakho v. Lal A I R 1924 Lah.
397; Mst. Rehmat v. Nikka A I R 1928 Lah. 954 ; Sardar Muhammad v. Mt. Maryam Bibi
A I R 1936 Lab. 666; Atst. Saidan v. Sharaj' A I R 1937 Lah. 759; Mst. Resham Bibi v.
Khuda Bakhsh A I R 1938 Lah. 482 and Young v. Adams 1898 A C 469 ref.

(j) Dissolution of Muslim Marriages Act (VIII of 1939)--

-- S. 4 & proviso-Effect of conversion to other faith-Retrospectivity of statutes-Section 4-

Held, neither declaratory nor retrospective.

There is nothing in the language of section 4, Dissolution of Muslim Marriages Act, 1939
to suggest that it is declaratory. On the contrary, as pointed out by Monroe, J., in Mt.
Rashid v. Tufail Muhammad "the use of the future tense, the words "the renunciation
……..shall not by itself operate to dissolve her marriage" are inconsistent with the
construction sought to be placed on the section. Similarly, the proviso also indicates that
the section was intended to be prospective and not retrospective. Thirdly, of the
consequences of accepting of respondent counsel submission were shocking to one's
sense of justice. The reason for this observation is obvious. Under the law before the
Dissolution of Muslim Marriages Act came into force, as a Muslim wife's apostasy
automatically dissolved her marriage, she was entitled to marry again according to the
personal law of her new faith. Therefore, if the section is given retrospective effect, it
would mean that marriages which were valid when contracted suddenly became invalid
on 17-3-1939, the day the said Act came into force. Similarly, it would mean that children
born of wedlock, which had been lawful according to the law of centuries, suddenly
became illegitimate on 17-3-39. No Legislature would have enacted a law entailing such
consequences without using language which ,manifested beyond doubt its intention to
cause such havoc. But, there is nothing whatever in the section to indicate that it was
intended to be retrospective or to annul marriages which had been valid when contracted.

Mt. Rashid v. Tufail Muhammad A I R 1941 Lab. 291 ref.

(g) Dissolution of Muslim Marriages Act (VIII of 1939)-

Link 2

-- S. 4 read with Preamble-Interpretation of statutes-Retrospectivity-Words "to remove

doubts about the effect of the renunciation of Islam by a married Muslim woman on her
marriage tie" appearing in preamble-Do not give rise to inference of retrospectivity of
statute Preamble, on other hand, relevant to construction of statute only when language
ambiguous and not clear.-[Interpretation of statutes].

Attorney-General v. H. R. H. Prince Ernest Augustus of Hanover 1957 A C 436 ref.

(h) Interpretation of Statutes-

Stare decisis-Interpretation placed by judicial authorities on a word for a long time-Held,

not to be disturbed.

Mian Muhammad v. Ghulam Mustafa P L D 1973 S C 394 ref.

(i) Dissolution of Muslim Marriages Act (VIII of 1939) ----

Link 3

S.4-Conversion of faith-Remarriage-Appellant Z a Muslim converting to Christianity-

Appellant's marriage with her husband, held, dissolved automatically and appellant free
to marry again-Appellant later re-embracing Islam and marrying one R-Appellant

Page No. 2 of 21
producing evidence establishing such marriage-Marriage not required to be proved
beyond all reasonable doubt and a mere preponderance of probability sufficient-R
deceased having acknowledged appellant as his wife in civil litigation and oral evidence
as well as circumstances of case also supporting appellant's claim, appellant, held, wife of
deceased R and her children born out of wedlock with deceased.

Ihsanul Haq, Advocate and M. D. Chaudhry, Advocate-on-Record for Appellants.

Ghias Muhammad, Senior Advocate, Fazl-i-Hussain, Advocate-on-Record, A. R. Sheikh,

Senior Advocate and Abdul Karim, Advocate-on-Record for Respondents.

Molvi Sirajul Haq, Advocate and M. A. Siddiqui, Advocate-on-Record for Respondent

No. I.

Respondent No. 4: Ex parte.

Dates of hearing: 24th and 26th March, 1980.

JUDGMENT ,

DORAB PATEL, J.-Both these appeals are between the same parties and they arise out of
disputes over the distribution of the estate of the late Syed Riaz Hussain Shah, who died
on 15th of December, 1948 (hereinafter called the deceased) leaving behind considerable
landed property. The claim of Mst. Zainab Bibi, the first appellant in both these appeals,
is that she was married to the deceased, and that the other appellants in both these appeals
are her children by this marriage. The first two respondents in both these appeals are
admittedly the daughters of the deceased, and there is no longer any dispute that the third
respondent is also a daughter of the deceased. The fourth respondent is a brother of the
deceased, butt as he is no longer interested in these appeals and has withdrawn them, it is
sufficient to state that the first two respondents repudiate Mst. Zainab Bibi's claim that
she had married the deceased, and, that the other appellants are her children by her
marriage with the deceased. Now, the consequent disputes about the devaluation of the
estate of the deceased began with proceedings for the mutation of inheritance of the
deceased before the Assistant Collector, Multan. After holding an enquiry, the Assistant
Collector held that the deceased had bequeathed 1/3rd of his estate to his brother, the
fourth respondent, and as he held that Mst. Zainab Bibi was the lawfully wedded wife of
the deceased, he divided the balance of the estate according to the Shariat between the
appellants and the first three respondents.

In these circumstances, Mst. Bilqis Bibi (the first respondent in both these appeals), who
warj then a minor, filed a suit through Mst. Fateb, her next friend and maternal
grandmother, against the appellants in the civil Court at Multan. She alleged in the plaint
that the deceased was a Shia (and there is no dispute about this) and that he had
bequeathed 1/3rd of his estate to his brother, the fourth respondent. Further, according to
her plaint, Mst. Zainab Bibi was the wife of one Allahdawaya, and, because she was a
woman of loose character, she had lived in sin with the deceased, and, the other
appellants in these appeals were not legitimate children of the deceased, therefore, she
sought a declaratory decree that she and her sister Mst. Shado (the second respondent in
these appeals) were entitled to a third share in the estate of the deceased to the exclusion
of the appellants.

The fourth respondent supported the first respondent claim. So did the second respondent,
except that she denied the validity of the will in favour of the fourth respondent, and she
claimed in her written statement that under the Shia law only she and her sister, the :first
respondent, were entitled to the estate of the deceased.

The appellants, on the other hand, contested the suit and in their written statement, the
first appellant admitted that she had married Allahdawaya. But, according to her, as she
had become a Christian on 25-10-1924, her marriage with Allahdawaya was
automatically dissolved. Sometime thereafter, according to the written statement, had re-
embraced Islam and married the deceased, and the other appellants in the appeal (to

Page No. 3 of 21
whom we will refer as the other appellants), were her children through her marriage with
the deceased.

All the parties produced. considerable evidence in support of their respective contentions
in this snit, and for the purpose of these appeals, it is sufficient to state that the trial Court
held try its order dated 20-11-1950 that the validity of the will, on which the fourth
respondent relied, should be decided in separate proceedings, therefore, although many
issues were framed, the real question in the suit before the learned Senior Sub-Judge,
Multan, who tried the suit, was of the validity of the first appellant's marriage with the
deceased, and the relevant issues are; not if defendant No. 1 Mst. Zainab is a widow and
defendants Nos. 2 to 7 descendants and heirs of Syed Riaz Hussain Shah, deceased."

The onus of this issue was on the plaintiff-respondent, and in order to prove that Mst.
Zainab had not been married to the deceased and only bad an illicit liaison with him, the
respondent examined two cousins of the deceased, Muhammad Nawa z Shah and Nazir
Hussain Shah. Both these witnesses emphatically repudiated the suggestion that the
deceased bad married Mst. Zainab. Further, Mst. Zainab's claim was that she was free to
marry the deceased, because on her conversi4an to Christianity her marriage to her
former husband Allahdawaya stood dissolved. Now, this plea that Mst. Zainab had
embraced Christianity and then married him after re-embracing Islam, had been taken by
the deceased in his lifetime in litigation in which he was involved, therefore, he had
produced Mst. Zainab's baptism certificate in this litigation. This certificate Exh. D-15
had been issued by a Priest by the name of Mr. Shad, who was blind, and the first
respondent had examined him in order to prove that the certificate Exh. D-15 was forged.
Now, although Mr. Shad emphatically stated in his examination-in-chief that he had
neither baptised Mst. Zainab nor issued the baptism certificate Exh. D-15, he admitted in
his cross-examination that he could not remember whether he had baptised the first
appellant, Mst. Zainab or not. However, the first appellant, Mst. Zainab birth certificates
and vaccination certificates of appellants 2 to 7, because, according to her the appellants
were described in these certificates as the children of Allahdawaya by his marriage with
Mst. Zainab, Finally, it would be sufficient to state here that the first respondent also
relied on a complaint alleged to have been filed by Allahdewaya in 1939 in which he bad
alleged that the deceased had abducted his wife Ma. Zainab.

On the other hand, Mst. Zainab said in her evidence that she had embraced Christianity
and that when she informed Allahdawaya of her conversion to Christianity, he had
divorced her. She then explained how she had become a Muslim again and married the
deceased thereafter. Allahdawaya fully supported Mst. Zainab's evidence. Not only did he
repudiate the suggestion that he had lodged a complaint with the Police in 1939, that the
deceased had enticed Mst. Zainab, but he also asserted that Mst. Zainab had married the
deceased twenty years earlier and bad lived with the deceased and begotten children
through him who were appellants 2 to 7. Now, we pointed out that Mr. Shad had become
blind, therefore, the baptism certificate issued by him could only be proved by someone
familiar with his handwriting, and so the appellants examined Mr. Gregory, a Priest of the
Church to which Mr. Shad had belonged, and Mr. Gregory proved the baptism certificate.
The first appellant also examined one Haji Khuda Bakhsh to prove her nikah with the
deceased, and three relations of the deceased Syed Muhammad Razi Shah, Muhammad
Munir Shah and Syed Nazir Shah, who all said that Mst. Zainab had lived with the
deceased as his wife add that the deceased had acknowledged the other appellants as his
children. The appellants also produced considerable documentary evidence to prove that
the deceased had acknowledged the other appellants as his children. Thus, for example,
as it was the deceased; who had the male appellants admitted at the Middle School,
Nirhd, the appellants examined the Headmaster of this School, and he proves that the
applications fur the admission of the appellants 2 to 5 in this school had been filed by the
deceased, who had described himself in this applications as their father.

The learned Senior Sub-Judge, who bad the advantage of watching the demeanour of the
witnesses, was not very impressed by Mr. Shad's evidence, and he held that the baptism
certificate Eah. P. 22 and D-15 had been proved by Mr. Gregory's evidence, therefore, in
accordance with the law which was cited before him, he held that Mst. Zainab's marriage
stood dissolved on her conversion to Christianity. However, as he was not impressed by
the evidence of Haji Khuda Bakhsh, he held that the appellants had not been able to

Page No. 4 of 21
prove successfully the actual nikah ceremony between defendant No. 1 and . . the
deceased." But, at the same time he made it clear that the respondents had failed to prove
their allegation that Mst. Zainab had lived in sin with the deceased. In this background,
he went on to observe that the fact that Mst. Zainab had not been able to prove her nikah
with the deceased "would not lead to the conclusion that no marriage had actually taken
place if there was a clear acknowledgement to this effect on the part of the man and also
about the legitimacy of the off-springs of the man and woman. In the present case it has
already been held that Syed Riaz Hussain Shah on different occasions acknowledged in
express terms that Mst. Zainab was his legally wedded wife and defendants 2 to 7 were
his legitimate children. It is also in evidence that Mst. Zainab had been living
continuously for a long time as the wife of Syed Riaz Hussain Shah in his house and this
fact is admitted by some of the plaintiff's own witnesses as well." He, therefore, held that
"the plaintiffs bad failed to prove that Mst. Zainab was not the widow of Syed Riaz
Hussain Shah and defendants Nos. 2 to 5 were not children and heirs," and in view of this
finding, he dismissed the first respondent's suit by his judgment dated 13-2-1952
(hereinafter called the main judgment).

The first respondent challenged the dismissal of her suit in an appeal in the Lahore High
Court which was heard and decided after twenty years, because, meanwhile her sister
Mst. Shado Bibi (the second respondent in these appeals) had filed a suit on 16-1-1955
against the appellants and the other respondents in these appeals for the administration of
the estate of the deceased, and she also challenged in her plaint the will made by the
deceased in favour of the fourth respondent. Her further plea in her plaint was that the
first appellant was not the wife of the deceased and that the other appellants were not his
children, although this issue had already been decided in the main judgment. Be that as it
may, the first respondent supported in her written statement the second respondent's
claims in her plaint, whilst the fourth respondent opposed the suit, because he relied on
the will of the deceased. And, for the purpose of these appeals it is sufficient to state that
the appellants in their written statement reiterated the position taken by them in the suit
filed against them by the first respondent.

This suit was decided after more than eleven years, and by his judgment dated 22-9-1966
the learned Senior Civil Judge, Multan upheld the will of the deceased in favour of the
fourth respondent, therefore, he gave a finding that this respondent was entitled to a 1/3rd
share in the estate of the deceased. Then, as to the issue of the validity of the first
appellant's marriage and the legitimacy of the other appellants, the learned Senior Civil
Judge held that this issue had been decided in the main judgment and he further observed
the learned counsel for the parties have stated at the Bar that (these issues) stand decided,
because of the previous litigation." Therefore, he gave a finding that the balance of the
estate of the deceased had to be divided between the first three respondents and the
appellants in these appeals in accordance with the Shariat, but he held that an order for
the administration of the estate of the deceased was not required in the circumstances of
the case.

The second respondent filed an appeal against this judgment in the Lahore Seat of the
West Pakistan High Court, and this appeal was heard by a Division Bench of the Lahore
High Court with the appeal of the first respondent against the main judgment.

The learned Judge of the Lahore High Court disposed of the two appeals by separate
judgments pronounced on 31-5-1972, and as to the appeal filed by the second respondent
against the dismissal or her suit for the administration of the estate of the deceased, the
learned Judge held that the fourth respondent had failed to prove the will alleged to have
been executed by the deceased in his favour, and they held that only the first three
respondents in these appeals were the legal heirs of the deceased. They also held that the
trial Court had erred in holding that the suit for the administration of the estate of the
deceased was not competent. Accordingly, they observed:-

"In the circumstances we accept this appeal with costs, modify the judgments under
appeal and grant a preliminary decree to the plaintiff against the defendants for her 1/3rd
share by the administration and accounts of the estate of Syed Riaz Hussain Shah
deceased. The trial Court shall appoint a suitable administrator 'to go into the accounts
and administer the estate of the deceased in accordance with the law."

Page No. 5 of 21
We now turn to the appeal against the main judgment. The learned Judges were of the
view that the onus of proving that the marriage of the deceased with the first appellant
was invalid had been wrongly placed on the first respondent. In the light of this finding,
they examined the evidence about the first appellant's claim that her marriage with
Allahdewaya stood dissolved on her embracing Christianity. They pointed out that the
baptism certificate had been produced for the first time by the deceased in 1947, in a suit
filed by his brother, the fourth respondent. They also referred to the first appellant's
admission that she had thumb-marked a register at the time of her conversion to
Christianity, and then observed:-

"no attempt was made to produce the original register from the Kalesa. This was the best
and the most authentic evidence on the point. The defendants have failed to produce it in
Court and a presumption can be raised against them and if produced it would not have
helped them."

The learned Judges were also impressed by Mr. Shad's evidence, and as they read it to
mean that Mr. Shad had said that he had not baptised the first appellant, they rejected the
baptism certificate as false. They also rejected Allahdewaya's evidence that he had
divorced the first appellant and observed:-

"In the state of this evidence on the record it cannot be said that the marriage in question
between Mst. Zainab and Riaz Hussain Shah was proved, beyond reasonable doubts. It is
neither proved nor altogether disproved. But one thing is certain and admits of no doubts.
It is that during the subsistence of her first marriage with Allah Dewaya the second
marriage of defendant No. I with Riaz Hussain Shah deceased was not possible."

In view of this finding that the first appellant had failed to prove that her marriage with
Allahdewaya had been dissolved, the learned Judge held that the "abundant evidence
produced . . . to establish that Syed Riaz Hussain Shah towards the later part of his life
before his death repeatedly admitted and acknowledged" the first appellant as his wife
and the other appellants as his children, was of no avail to the plea of the appellants even
though this evidence stood unrebutted. They then observed that they had rejected the
fourth respondent's claim by their judgment in the appeal filed by the second respondent,
and after pointing out that they had also held in this judgment that the first three
respondents were the only legal heirs of the deceased, they disposed of the appeal against
the -main judgment with the following observations:-

"On the death of Syed Riaz Hussain Shah he was survived by his three daughters, Mst.
Bilqis Bibi plaintiff -appellant Mst. Shado Bibi defendant (respondent No. 9 transposed
as the appellant and Mst. Murid Fatima defendant-respondent No. 7 to succeed to his
entire estate in equal shares to the exclusion of the other claimants . . . . . . . we partly
accept this appeal and the suit of the plaintiff-appellant is disposed of accordingly . . . . ."

As the appellants were aggrieved by these judgments, they filed petitions for leave in this
Court and submitted, inter alia, that the appeals and been decided against them by the
learned Judges, because the learned Judges had erroneously rejected the baptism
certificate of the first appellant on account of the evidence of Mr. Shad, who was an
unreliable witness, and leave was granted to examine the question-

"whether a document, like the baptism certificate, duly proved in accordance with law,
can be allowed to be contradicted by the oral evidence of the author who, owing to his
blindness, could not even see the document and could not be confronted with his own
signatures thereon . . . . ."

We may pause to point out here that the fourth respondent had also filed appeals against
these judgments, but as he has withdrawn them, and as the third respondent does not
oppose the appeals, the contest in the appeals is only between the appellants and the first
two respondents, and the principal question for determination is whether the first
appellant had embraced Christianity, because if so, as we will presently show, her
marriage with Allahdewaya stood dissolved automatically and she was free to marry any
other person.

Page No. 6 of 21
The first appellant explained in her evidence how she had embraced Christianity and her
evidence was supported by that of Allahdewaya. But this evidence did not impress the
first Appellate Court and the question was of the appreciation of evidence. However,
apart from this evidence, the first appellant had also relied on the baptism certificate
issued to her at the time of her conversion to Christianity by Mr. Shah, therefore, in view
of section 67 of the Evidence Act, she had to prove this certificate, and this she could do
only by proving Mr: Shad's signature on the certificate as required by section 67.
Unfortunately, for her, Mr. Shah had become blind long before the institution of the suit
against her. How then was she to prove the baptism certificate ? Section 47 of the
Evidence Act is relevant and reads;--

"47. Opinion to handwriting when relevant.-When the Court has to form an opinion as to
the person by whom any document was written or signed, the opinion of the person
acquainted with the handwriting of the person by whom it is supposed to be written or
signed that it was or was not written or signed by that, person, is a relevant fact."

As Mr. Shad was blind, on the plain language of this section read with' section 67, the
certificate had to be proved through some one, who was familiar with Mr. Shad's
handwriting, and so the first appellant examined Mr. Gregory who identified Mr. Shad's
signature on the certificate, and further stated that the certificate itself was in Mr. Shad's
handwriting. As this witness was a Christian Priest, there was nothing improbable in his
claim that he was familiar with Mr. Shad's handwriting. In any event, ail he was not
cross-examined on his categotical assertion that he was familiar with Mr. Shad's
handwriting. Mr. Gregory's evidence had brought the baptism' certificate within the ambit
of section 67, and so the onus shifted to the' first respondent to prove that it was forged,
therefore, it was not necessary for the first appellant to produce further evidence in
support of her claim, and with due respect, we cannot agree with the view of the learned
Judges that an adverse inference had to be drawn against the first appellant for not
summoning the Church Register in which her baptism was recorded, and on the contrary,
as it was for the first respondent to produce evidence in. rebuttal, she should have
summoned this register or at least referred the disputed signature on the baptism
certificate (Exh. D. 15) to. a Handwriting Expert.

The first respondent, however, only relied on the evidence of Mr. Shad, therefore, we
would explain here that he said in his examination-in-chief Mst. Zainab, wife of Allah
Dewaya, never took any baptism certificate. I never converted her to Christianity." The
learned Judges appear to have placed great reliance on this statement, although it was
contradicted by the witness in his cross-examination. But, apart from Mr. Shad's
admissions in cross-examination, it is not the case of the first respondent that the first
appellant was personally known to Mr. Shad or that she was in any way a remarkable or
unusual woman. How then could Mr. Shad be so definite that he had not met an obscure
and unknown woman twenty-seven years earlier ? Even a person not handicapped by
blindness would find it difficult to recollect whether he had met an obscure and unknown
person twenty-seven years earlier. But, if Mr. Shad had not been blind, he might have
been able to say whether he could recollect having met the first appellant. Further, and
this is much more important, if he had not been blind, he would have been able to say
whether the signature on the baptism certificate was his, and if he had repudiated the
baptism certificate after reading it, this evidence might have been sufficient to rebut Mr.
Gregory's evidence. But, as Mr. Shad could neither see nor read, his dogmatic assertion
that he had not baptised the first appellant is very difficult to believe, at least in the
absence of evidence to show that he had a remarkable memory. But, there is no such
evidence and on the contrary, although the witness claimed to have baptised 50 to 100
persons, he was compelled to admit in cross-examination "I do not remember the names
of even one of them." Now, if the witness could not remember the name of even one
person whom he had baptised, how could he be so certain that he had not baptised the
first appellant ? The witness was cross-examined at length can how he could be so precise
about a very minor and unimportant event which had taken place twenty-seven years
earlier, and he gave a rather involved explanation. But, as the learned Judges were
impressed by this explanation, it would be convenient to quote their observations. The
learned Judges observed:-

Page No. 7 of 21
"In answer to the cross-examination by the counsel for defendant No. 8 the witness stated
that as a matter of general practice all the women to whom be gave the certificate of
baptism afterwards used to bring their suits against their respective husbands for
cancellation of their marriage without any exception as far as he could remember. The
witness added that his statement to the effect that he never gave any certificate of baptism
to Mst. Zainab was based on the consideration that she must have brought a similar suit
as a matter of course if indeed the certificate was at all issued to her:"

With all respect to the learned Judges, their attention was not drawn to the fact that the
witness did not even attempt to explain how he knew that every lady, who bad obtained a
baptism certificate from him, had taken her husband to Court. And, the witness's
explanation assumes that in order to divorce her husband on the ground of her apostasy, a
Muslim wife had to institute a divorce suit against her husband. But, as we will presently
show, this assumption is not correct, because under the law, as it then stood, the marriage
of a Muslim couple stood dissolved automatically on the wife's renunciation of Islam.
Therefore, with all respect to the learned Judges, the explanation of the witness does not
inspire confidence, and it is not surprising that in further cross-examination, the witness
retracted from the statement made by him in his examination-in-chief (which
unfortunately impressed the learned Judges very much) and admitted. "I cannot say
whether I converted any body whose name may have been Mst. Zainab. I am now blind
and I cannot identify the handwriting of the certificate of baptism that may have been
issued by me." As the witness thus made a complete retreat from the position taken by
him in his examination-in-chief, it is not surprising that the trial Court was not impressed
by his evidence.

However, according to the learned Judges, "the trial Court brushed aside (Mr. Shad's)
testimony on wholly insufficient reasons and misleading conclusions." With all respect to
the learned Judges, these observations are not correct. Mr. Shad bad been summoned only
to prove that he had not baptised the first appellant and he made a categorical statement
in his examination-in-chief that he had not baptised the first appellant. But, he had to
admit in cross-examination that he had a very poor memory, and, he finally said "I cannot
say whether I converted any body whose name may have been Mst. Zainab." As the
witness retracted from the position taken by him in his examination-in-chief on the only
point on which he was summoned to give evidence, the view of the trial Court is correct.
However, in taking the view which they did, the learned Judges were influenced by three
considerations. The first was that Mst. Shad was not an interested or dishonest witness.
The second was that the deceased had produced the baptism certificate for the first time
in 1947 in a suit filed against him by his brother the fourth respondent. And, the third was
that the first appellant had not summoned the Church register of the Church in which she
had been baptised.

With all respect to the learned Judges, the question was not whether Mr. Shad was an
interested or an honest witness, but whether reliance could be placed on his memory,
because of his blindness and the lapse of twenty-seven years. And, as the position finally
taken by the witness was that he was not sure whether he had baptised the first appellant,
in our humble opinion, the learned Judges erred in law in rejecting a document, proved
under the Evidence Act, merely because the author of that document was not certain
whether he had executed it or not.

The second reason given by the learned Judges for doubting the baptism certificate was
that it had been produced by the deceased for the first time in the year 1947. Now, the
certificate was issued in 1924 and as far as we can see, the learned Judges were of the
view that the certificate did not inspire confidence, because it had not been produced for
twenty-three years. But, as the question of the first appellant's conversion to Christianity
related to the details of her private life and the private life of the deceased, we do not see
how any inference can be drawn against this certificate, because it was not produced by
the deceased before 1947. On the other hand, if there had been some occasion for
producing the certificate earlier, and the deceased had withheld it, this might have cast
some doubt on the validity of the certificate. But, Mr. Ghias Muhammad was not able to
refer us to any evidence which could show that the deceased had withheld this baptism
certificate on an earlier occasion, therefore, the inference drawn by the learned Judges
from the fact that this certificate was produced for the first time in 1947 is not correct.

Page No. 8 of 21
Finally, the learned Judges drew an adverse inference against the appellant for not
summoning the Church Register of the Church in which she was baptised in order to
prove her baptism. But, as we explained the certificate had been produced in accordance
with the manner prescribed in section 67 of the Evidence. Act, therefore, the onus had
shifted to the first respondent to produce evidence in rebuttal, except of course on the
assumption that the burden was on the first appellant to prove beyond reasonable doubt
that this certificate had been issued by Mr. Shad, and as far as we can see, the learned
Judges appear to have been of the view that the burden was on the first appellant to prove
this certificate beyond all reasonable doubt. With all respect to the learned Judges. whilst
the prosecution in a criminal case has to prove beyond reasonable doubt the guilt of the
accused, the position of defendant in a civil suit cannot be equated with that of the
prosecution in a , criminal case, the more so, as the principles for the appraisal of
evidence in, civil and criminal cases are not entirely the same. As observed by Munir in
his Law of Evidence, Pakistan Edition, page 28 :-

"There is, however, a marked difference as to the effect of evidence in civil and criminal
cases. Thus, whereas in a civil case a mere preponderance of probability is a sufficient
basis of decision, in a criminal case persuasion of guilt must amount to "such amoral
certainty as convinces the minds of the tribunal as reasonable men beyond all reasonable
doubt." In a criminal case before the Court is called upon to convict a person it has to
satisfy itself that possibility of his innocence is ruled out, in a civil case all that is
necessary to insist upon is that the proof adduced in support of a fact is such that should
make a prudent man to act upon the supposition that it exists."

Therefore, with all respect to the learned Judges, the first appellant was only required to
produce such evidence as would "make a prudent man to act on the supposition" that the
baptism certificate was valid, and in view of the evidence which we have discussed, she
had produced sufficient evidence to prove that the baptism certificate was a genuine
document.

As Mr. Ghias Muhammad was not able to defend the view of the learned Judges on any
ground other than those taken in the judgment, he submitted that the certificate was not
substantive evidence and was inadmissible, because it did not fall under section 35 of the
Evidence Act. It is true that the certificate does not fall under section 35 of the Evidence
Act, but this, does not mean that it was not admissible or that it was not substantive
evidence. Evidence which is relevant is substantive evidence under the Evidence Act and
on the arguments advanced before us, the certificate falls under section 11 of the
Evidence Act which reads.”

"11. When facts not otherwise relevant become relevant.-Facts not otherwise relevant are
relevant :-

(1) If they are inconsistent with any fact in issue or relevant fact ;

(2) If by themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable."

The question of the first appellant's conversion to Christianity is not merely a fact in issue
in these appeals, but it is the principal fact in issue. therefore, any fact which makes the
fact of conversion highly probable o improbable is evidence under this section. As
observed by Lord Simon his speech in Director of Public Prosecutions v. Kilbourne 1973
A C 729:

"Evidence is relevant if it is logically probative or disprobative of some matter which

requires proof. I do not pause to analyse what is involved in "logical probativeness",
except to note that the term does not of itself express the element of experience which is
so significant of its operation in law, and possibly elsewhere. It is sufficient to say, even
at the risk of etymological tautology, that relevant (i. e. logically probative or
disprobative) evidence is evidence which makes the matter which requires proof more or
less probable."

Page No. 9 of 21
The matter which requires proof, in the instant case and which is the principal fact in
issue, is the question of the first appellant's conversion, and; just as Mr. Shad's evidence
was relevant, because: it was believed to inconsistent with the first appellant's claims the
baptism certificate w relevant, because it rendered the first appellants plea highly
probable. Therefore, it was substantive evidence under section 11 and learned counsel'
submission is not correct.

Additionally, as Mr. Shad had been examined in order to repudiate the certificate, the first
appellant was entitled to confront him in cross-examination with the certificate, and as he
was blind, she was further entitled to prove it in the manner prescribed in section 47 of
the Evidence Act. According on this ground also, learned counsel's objection to this
certificate fails.

Mr. Ghias Muhammad's next submission was that the first appellant's conversion to
Christianity was not genuine. This argument assumes that the Courts are entitled to reject
a witness's evidence about his or her change of religion, but as submitted by Mr. Ihsanul
Haq, there are a long line of judgments of the Lahore High Court in which it has been
held that Courts should not go behind a witness's assertion that he or she has changed his
or her religion. However, for the purpose of these appeals, we will assume that the
assumption on which Mr. Ghias Muhammad advanced his argument is correct. On this
footing, the observations of the learned Judges about the veracity of the first appellant
support Mr. Ghias Muhammad's submission. But, whatever be the position if the question
had been merely of the first appellant's own evidence, her evidence is supported by the
baptism certificate and as this is an extremely strong piece of evidence, we are satisfied
that the first appellant has proved that she had renounced Islam in 1924 and joined
another faith through a solemn public ceremony. Therefore, the next question, for
determination is the effect of her apostasy from Islam, and this question has to be
determined in the light of the law as it stood in 1924.

As this was long before the promulgation of the Dissolution of Muslim Marriages Act,
1939 (hereinafter called the said Act) Mr. Ihsanul Haq submitted that the first appellant's
conversion to Christianity had automatically dissolved her marriage with Allahdewaya,
because apostasy was a very grave offence in Islam. This submission is supported by
paragraph 321 of Mulla's Muhammadan Law (Fifteenth Edition), to w4ich Mr. Ihsanul
Haq referred us and by a long series of judgments of the High Courts of British India
going back to more than one hundred years. Mr. Ghias Muhammad, on the other hand,
submitted that the first appellant's conversion to Christianity could not automatically
dissolve her marriage with Allahdewaya, because Allahdewaya was in any event free to
marry a Christian, but in support of this submission, he relied only on a passage in Amir
Ali's Muhammadan Law,. However, as we were about to pronounce this judgment, Mr.
Ghias Muhammad sent us a written note according to which Mr. Ihsanul Haq's
submission was "clearly opposed to the express text of the Holy Qur'au declaring the
marriage of a Muslim male with a Christian female as valid." and the "express text" on
which learned counsel relied reads, according to his translation -

"This day are (all) things Good and pure made lawful unto you.

The food, of the people of the Book is lawful unto you And yours if lawful Unto them.

(Lawful unto you in marriage)

Are (not only) chaste women

who are believers but

Chaste women among

The People of the Book,

Revealed before your time,--

…………..."

Page No. 10 of 21
We regret our inability to understand how this Sura can lead to the inference that Mr.
Ihsanul Haq's submission is contrary to the express tent of the Holy Qur'an, and on the
other hand, Mr. Ihsanul Haq did not challenge the principle that a Muslim can marry a
Christian lady, but he challenged the inference which Mr. Ghias Mohammad attempted to
draw from the fact that a Muslim male could marry a Christian, and the real controversy
between the learned counsel was about the inference to be drawn from the principle that a
Muslim male can marry a Christian. Because a Muslim male can marry a Christian, a
possible and reasonable view is that a wife's renunciation of Islam for Christianity should
not automatically dissolve her marriage, because her husband is free in any event to
marry a Christian. But, on the other hand, although a Muslim male can marry a Christian,
apostasy from Islam to any religion, including Christianity, was a crime. No doubt, the
penalties on the woman apostate was not so severe as those on the male, but as this did
not alter the fact that conversion to Christianity by a Muslim female was an offence (see
Amir Ali's Mohammadan Law, fourth Edition, pp. 444-445), the view that a wife's
apostasy automatically dissolved her marriage with a Muslim was also a reasonable and
possible view, and this was the view which had been held in India for centuries before the
advent of British rule.

As Mr. Ghias Mohamma relied on the sixth edition of Amir Ali's Mohammadan Law, we
may point out that at page 350 of this edition, the learned author observes :-

"Among the Hanafis, according to the old lawyers, whose views are enunciated in the
Hedaya, the Fatawai Alamgiri and other work, apostasy from Islam of either husband or
wife whether it takes place before or after consummation dissolves, ipso facto, the
marriage-tie."

Similarly, Tanzilur Rehman in his Code of Personal Law (1978 Edition) observes at page
637 ;.-

"In connection with the dissolution of marriage on account of apostasy the point of view
of classical jurists, as stated in Fatawa Alamgiriyyah and al Hidayab, is that apostasy of
any one of the couple shall make the marriage contract dissolved of itself. Indian Courts,
prior to the enforcement of the Dissolution of Muslim Marriages Act, 1939 decided cases
in accordance with this point of view."

The observations state the law as it stood before the said Act and that is why Mulla,
Tyabji, Wilson and Baillee all subscribed to the view that a Muslim Marriage stood
dissolved, before the promulgation of the said Act, on a wife's apostasy from Islam. Nor
was disputed by Mr. Ghias Mohammad, who merely invited us to follow Amir Ali's
views.

But, whilst later editions of Amir Ali support Mr. Ghias Mohammed's submission, even
Amir Ali had said in the first edition of his Treatise on Mohammadan Law, page 276 : -

"Under the Mohammadan Law, if a Moslem husband or a Moslem wife apostatise from
Islam, the apostasy has the effect of dissolving the marriage-tie between the parties."

This observation is fatal to Mr. Ghias Mohammad's submission, and it was only after
more than a quarter of a century that Amir Ali changed his views in his third edition.
However learned counsel relied on the sixth edition of the author's work, therefore, we
would now quote the passage at page 351 which is relevant to the question under
examination. This passage reads :--

"As regards the effect of the wife's abjuration of Islam on the status of marriage there is
the same divergence of opinion between the ancient and the modern jurists. The lawyers
of Bokhara, who adhere to the doctrines of the ancients (mutakkadamin) hold that
whatever the religion she adopts, she should be imprisoned until she returns to the Faith,
when she should be constrained to re-marry her former husband on a very small dower.
The object of the doctrine they propounded as they declared, was to prevent woman from
trying the escape from the bonds of matrimony by the abandonment of Islam. The jurists
of Balkh and Samarkand, on the other hand, have laid down that when a woman abjures

Page No. 11 of 21
Islam for a Scriptural or revealed religion like Judaism or Christianity, her renunciation of
the Faith does not dissolve the marriage. Their arguments in support of their contention
are as already stated, two-fold. In the first place, they say that as a marriage between a
Moslem and a Scripturalist woman (Kitabia) is lawful under the Musulman Law, the
adoption of a revealed religion by a Moslem woman cannot affect the status of marriage.
In the second place, they contend that when the circumstances of the age are such that a
woman abandoning Islam can neither be imprisoned nor constrained to re-enter the fold
of the Faith, to hold that abjuration of the Islamic Faith dissolves the marriagetie would
further the very object for which she apostatises, viz. to 'release herself of the burden of
marriage'."

Although the Indian Courts have preferred to follow the extreme Bokhariot view, I
submit the more reasonable enunciations of the jurists of Balkh and Samarkand, furnish
the guiding principle for tribunals who have by their constitution to act according to
"justice, equity and good consdience."

In the first place, there is nothing in these observations to lend any support to Mr. Ghias
Mohammad's submission that the old view, which Tanzilur Rehman describes as the view
of the classical jurists, was contrary to the express text of the Holy Qur'an. Secondly, the
consideration which led Amir Ali to abandon the view which he had held for more than
twenty-five years were mostly of a practical nature. Thirdly Amir Ali was trying to
change the law of centuries, and as we were invited to overrule the judgments of the High
Courts of British India solely on the basis of the view taken by Amir Ali from his third
edition onwards, we wanted to know when the other jurists of British India had followed
Amir Ali in abandoning their adherence to the view of the classical jurists. But, learned
counsel, who was not aware that Amir Ali had himself subscribed for a very long time to
the classical view, could not give us the name of any person, much less the name of any
jurist, who had subscribed to the views of Balkh and Samarkand jurists before 1925.
Learned counsel only relied on the fact that the said Act gave effect to the views taken by
Amir Ali from his third edition onwards. It is true that the said Act reflects the view taken
by Amir Ali from his third edition onwards, but ideas change rapidly and there are times
when ideas change very rapidly, therefore, because Amir Ali's views had been accepted
by the Legislature in 1939, we cannot hold that his views have been accepted half a
generation earlier.

As we have had no assistance on this aspect of the case, we have tried to ascertain the
position ourselves, and we found that the Courts were invited for the first time to follow
the views of the jurists of Balkh and Samarkand in Imam Din v. Hassan Bib! (1), a case
in which Mr. Shahdin, later Mr. Justice Shahdin, had appeared for one of the parties.
After referring to the differences between the view of the classical jurists and the jurists
of Balkh and Samarkand, the learned Judges of the Lahore High Court observed :-

"We cannot take upon ourselves to declare which version of the law on the subject is
correct, unless we are assured that there is d' considerable body of persons belonging to
the class to which the parties belong who are governed by the doctrine of the Balkh and
Samarkand jurists . . . . . . . There is no allegation that this opinion is accepted by them
generally as the more orthodox and correct."

The last sentence of this passage clearly indicates that there was no real challenge to the
views of the classical jurists in India as late as 1906. However, four years later, as Amir
Ali had meanwhile revised his views, an attempt was made to persuade the Allahabad
High Court to follow the view of the jurists of Balkh and Samarkand in Amin Beg v.
Saman (2). The attempt failed, and it is clear from the judgment of the Court that Amir
Ali's views were not supported by any jurist in the sub-continent as late as 1910. This
background is essential to the proper appreciation of the case law on the effect on
marriage of apostasy from Islam and with this observation, we would examine the
judgments of the High Courts.

(1) 1906 Pb. Rec. 85 (21 I L R 33 All. 90

More than a hundred years ago in Zuburdust Khan v. His wife (1876) 2 N W P H C Rep.
370, the North-West Frontier Province High Court held that "the effect of the apostasy of

Page No. 12 of 21
a Muhammdan wife was to dissolve the marriage contract" automatically. But, as we
pointed out, this view was challenged forty years later in Amir Beg's case on the basis of
the view taken by Amir Ali in his third edition, therefore, the learned Judges of the
Allahabad High Court examined the views of the jurists of British India an rejected the
appellant's plea with the observation:-

"We have heard the argument of the learned counsel for the plaintiff appellant, which was
based on a passage to be found in the third edition of Mr. Ameer Ali's work on
Muhammadan Law. Mr. Ishaq Khan admits that there is no authority to be found in
support of his contention outside the writings of the jurists of Balkh and Samarkand, and
this apparently is so. In the second edition of Mr. Ameer Ali's work it is definitely stated
that "under the Muhammadan Law if a Moslem husband or a Muslem wife apostatize
from Islam, the apostasy has the effect of dissolving the marriage-tie between the
parties". Baillie in his digest of Muhammadan Law at page 182 also states that "apostasy
from Islam by one of a married pair is a cancellation of their marriage". In Hamilton's
translation of the Hedaya at page 66 is the passage :-"If either husband or wife apostatize
from the faith a separation takes place without divorce according to Haneefa and Aboo
Yoosuf." Sir Roland Wilson in his work on Anglo-Mahomedan Law, at page 156, writes
as follows:-"It seems that the effect of either or both of the parties to a Mabomedan
marriage renouncing the Mahomedan religion is to dissolve the marri age ipso facto, so
far as the British Courts are concerned . . . . . . . . .

As the learned Judges saw no reason to dissent from the view taken by their predecessor
Court, they held that apostasy from Islam automatically dissolved a Muslim marriage.

The Calcutta High Court took the same view in Abdul Ghani v. Azizul Haq (1) and after
referring to the Fatawa Alamgiri and other authorities Sharfuddin, J., observed at page
416 :.-

"On reference to the different authorities, we are of opinion that Mst. Jaitan's marriage
with the complainant became absolutely null at the moment he apostatised, and that from
the date of his apostasy he was not her husband, . . . . . . . ."

We now turn to the Punjab cases. In Nowroz All v. Aziz Bib! (2), after examining the
Fatawa Alamgirl, the Hedaya and the other authorities, a Full Bench of the Punjab Chief
Court held that apostasy from Islam automatically dissolved a Muslim marriage. This
judgment was followed in Khan Bibi v. Pir Shah (3) and in Allah Bakhsh v. Amir Begum
(4). Next, as we pointed out, the validity of the view taken in these judgments was
challenged in Imam Din v. Hassan Bibi on the basis of the view of the jurists of Balkh
and Samarkand. But, on the authority of the Fatawa Alamgiri and other authorities, the
learned Judges re-affirmed their earlier view that apostasy from Islam automatically
dissolved a Muslim marriage.

(1) I L R 39 Cal. 409 (2) 1876 Pb. Rec. 124

(3) 1884 Pb. Rec. 132, (4) .1899 Ph. Rec. 61

The same view was taken in Ghaus v. Fajji and others (1), in Mt. Bakho v. Lal (2) and in
Mst. Rehmat v. Nikka (3).

However, despite the clear trend of authority, and attempt was again made in Sardar
Mohammed v. Mt. Maryam Bibi (4) to persuade the Lahore High Court to alter its view.
In repelling this plea, Agha Haidar, J., observed :-

"Apart from authorities and as a matter of first impression the fact that a Mussalman wife
embraces Christianity during wedlock ought not to make any difference for the obvious
reason she has gone over from one religion which, believes in a Kitab, namely, the
Mahomedan religion, to another similar religion. This view has been entertained by a
very eminent jurist of Bulkh and Samarkand, and the distinguished commentator on
Mahomendan Law, the late Right Hon'ble Sayed Ameer Ali, seemed to be inclined to the
same view. But the current of judicial opinion in this country seems to be uniform and it
has been held in numerous cases that if the wife of a Mahomedan who, had married her

Page No. 13 of 21
husband when both of them professed the Mahomedan faith, during the subsistance of
marriage, abjures Islam and becomes Christian, the marriage is ipso facto, dissolved; . . . .
. . . . . ."

This judgment was followed in Mst. Saidan v. Sharaf (5) and in Mst. Resham Bib! v.
Khuda Bakhsh (6). Thus the trend of authority before the promulgation of the said Act is
clear consistent and uniform, and is fatal to the claim of the first two respondents.

Mr. Ghias Mohammad's next submission was that the first appellant's apostasy could not
automatically dissolve her marriage with Allahdewaya, because of section 4 of the said
Act, and as this Act was promulgated fifteen years after the first appellant's renunciation
of Islam, learned counsel's further submission was that the said Act was retrospective,
because it was a declaratory statute.

The argument is fallacious for more reasons than one. In the first place, even when the
text of the statute makes it clear that the statute is declaratory, the extent of the
retrospectivity of the statute is another matter, and the question is far too complicated to
be disposed of by the sweeping formulated by learned counsel. In Young v. Adams (7),
the respondent had advanced a somewhat similar proposition. He relied on section 58 of
the Public Service Act, 1895 and because this section was declaratory, he submitted that it
was retrospective. In rejecting this submission, Lord Watson, who delivered the judgment
of the House, observed :-

(1) A I R 1915 Lah. 14 (2) A I R 1924 Lah. 397

(3) A I R 1928 Lab. 954 (4) A I R 1936 Lah. 666

(5) A I R 1937 Lah. 769 (6) A I R 1938 Lah. 482

(7) 1898 A C 469

"It was argued for the appellant that the provisions of S. 58, being deelaratory, must of
necessity be enforced by the Courts of the Colony in every case whether arising before or
after the date of their enactment; . . . It may be true that the enactments are declaratory in
form; but it does not necessarily follow that they are therefore retrospective in their
operation, and were meant to apply to acts which had been completed or to interests
which had vested :before they became law. Neither the context of the statute, nor the
terms of the clause itself, appear to their Lordships to favour that result .... It does not
seem to be very probable that the Legislature should intend to extinguish, by means of
retrospective enactment, rights and interests which might have already vested in a very
limited class of persons, consisting, so far as appears, of one individual, namely, the
respondent. In such cases their Lordships are of opinion that the rule laid down by Erie C.
J. in Midland Ry. Co. Pye. (30 I. J C P 315) ought to apply. They think that, in a case like:
the present, the learned Chief Justice was right in saying that a retrospective operation
ought not to be given to the statute, "unless the intention of the Legislature that it should
be so construed is expressed .in plain and unambiguous language, because it manifestly
shocks one's sense of justice that an act legal at the time of doing it should be made
unlawful by some new enactment."

We agree with this statement of the law, and .as the consequences of accepting Mr. Ghias
Mohammad's submission, are obviously shocking to one's sense of justice, we would
examine section 4 of the said Act in order to see whether the language of the section
lends any support to learned counsel's submission. The section reads :-

"4. Effect of conversion to other faith.-The renunciation of Islam by a married Muslim

woman or her conversion to a faith other than Islam shall not by itself operate to dissolve
her marriage."

Provided that after such renunciation, or conversion the woman shall be entitled to obtain
a decree for the dissolution of her marriage on any of the grounds mentioned in section
2."

Page No. 14 of 21
There is nothing in the language of this section to suggest that it is declaratory. On the
contrary, as pointed out by Monroe, J., in Mt. Rashi v. Tufail Muhammad A 1 R 1941
Lab, 2,91, the use of the future tense, the words "the renunciation . . . . shall not by itself
operate to dissolve her marriage" are renunciation ……with the construction sought to
be placed on the section by Mr. Ghias Muhammad. Similarly, the proviso also indicates
that the section was intended to be prospective and not retrospective. Thirdly, we
observed earlier that the consequences of accepting Mr. Ghias Mubammad's submission
were shocking to one's sense of justice. The reason for this observation is obvious. Under
the law before the said Act came into force, as a Muslim wife's apostasy automatically
dissolved her. marriage, she was entitled to marry again according to the personal law of
her new faith. Therefore, if the section is given retrospective effect, it would mean that
marriages which were valid when contracted suddenly became invalid on 17-3-1939, the
day the said Act cam into force. Similarly, it would mean that children born of wedlock,
which had been lawful according to the law of centuries, suddenly became illegitimate on
17-3-1939. No Legislature would have enacted a law entailing such consequences
without using language which manifested beyond doubt its intention to cause such havoc.
But, there is nothing whatever in the section to indicate that it was intended to be
retrospective or to annul marriages which had been valid when contracted.

This is so obvious that learned counsel did not attempt try base his submissions on the
language of the section. Instead he relied' on the preamble, and the submission was that
the said Act was retrospective, because the preamble was declaratory. But, there is a great
difference between the text of a statute, which is declaratory, and the preamble of a
statute which is declaratory.

Turning however to the preamble, it reads :-

"Whereas it is expedient to consolidate and clarify the provisions of Muslim law relating
to suits for dissolution of marriage by women married under Muslim law and to remove
doubts as to the effect of the renunciation of Islam by a married Muslim woman on her
marriage tie.

Although, this preamble states that the object of the said Act was the consolidation and
clarification of Muslim law relating to suits for dissolution of marriage, the statement in
the preamble, which is relevant to section 4, is the statement that this section was enacted
"to remove doubts about the effect of the renunciation of Islam by a married Muslim
woman on her marriage tie." These are not words from which a retrospective intent can
be inferred. Secondly, a preamble is relevant to the construction of a statute only when
there is an ambiguity in the statute, and we cannot do better than quote a passage from the
speech of Lord Normand in Attorney-General v. H. R. H. Prince Ernest Augustus of
Hanover 1957 A C 436, at page 467 :-

"When there is a. preamble it is generally in its recitals that the mischief to be remedied
and the scope of the Act are described. It is, therefore, clearly permissible to have
recourse to it as an aid to construing the enacting provisions. The preamble is not,
however„ of the same weight as an aid to construction of a section of the Act as are other
relevant enacting words to be found elsewhere in the Act or even in related Acts. There
may be no exact correspondence between preamble and enactment, and the enactment
may go beyond or it may fall short of the indications that may be gathered from the
preamble . . . . . . It is only when it conveys a clear and definite meaning in comparison
with relatively obscure or indefinite enacting words that the preamble may legitimately
prevail."

As a preamble cannot be resorted to when the statute itself is clear and unambiguous,
even on the footing that the preamble to the said Act is declaratory, it is of no assistance
to Mr. Ghias Muhammad's submission, because section 4 is clear and unambiguous and
as the section is clear and unambiguous, we cannot fall back on the preamble or on the
statement of the objects of the said Act in order to rafter the plain meaning of the words
in the section itself.

The only other point which remains for consideration is whether we should set aside; the
view taken in the judgments cited merely because they are not binding on us, and Mr.

Page No. 15 of 21
Ghias invited us to overrule the case-law of more than a hundred years because the
judgments were of the High Courts and were, therefore, not binding on us.

On the other hand, Mr. Ihsanul Haq submitted that we should not overrule the law laid
down by a long line of eminent Judges over a period of more than a century. This very
point was examined by this Court in Mian Muhmnmad v. Ghulam Mustafa P L D 1973 s
C 394, where the question was of the meaning of the word "serai". The respondent relied
on the interpretation placed on this: word by High Courts, and his submission was that
the interpretation thus placed on the word for a long period should not be disturbed by
this Court. In accepting this plea, Anwarul Haq, J. (as he then was, now the Chief Justice)
observed at page 494 :--

"Before we conclude, we may mention a point raised by the learned counsel for the
respondent that, in the absence of any compelling reason to the contrary, we ought to
maintain the interpretation which has been consistently given by judicial authorities to the
term "serai", as any variation at this stage would have the effect of unsettling valuable
property rights which have accrued to various parties under the law of pre-emption in
respect of buildings which fall within or outside the popular meaning of the term `serai'.

We consider that there is substance in this submission, as the doctrine of stare decisis
does apply to a matter of this kind, when judicial authorities, at least from 1895 onwards,
have consistently given a'' particular meaning to the term "serai" . . . . ."

We respectfully agree with these observations and we would not overrule view which
goes back more than a hundred years to Zuburdust Khan's case.

We are, therefore, satisfied that the first appellant's conversion to Christianity

automatically dissolved her marriage with Alladewaya and after her conversion, she was
free to marry again. Her claim is that she re embraced Islam and married the deceased.
Now, it is no body's case that she was not a Muslim at the time of her re-marriage, but
according to the learned Judges, on the evidence "on the record it cannot be said that the
marriage in question between Mst. Zainab and Riaz Hussain Shah was prove beyond
reasonable doubt." With the utmost respect, the first appellant did not have to prove her
marriage with the deceased beyond all reasonable doubt, because the question had arisen
in civil proceedings, and as observed by Munir "in a civil case a mere preponderance of
probability is a sufficient basis of decision". Accordingly, we would now examine, in the
light of Munir's dictum, the evidence produced by the parties on the question of the; first
appellant's marriage with the deceased.

The first appellant had examined a witness by the name of Haji Khuda Bakhsh to prove
her nikah with the deceased, but as both the Courts have disbelieved this witness, his
evidence is of no help to the first appellant's case. Both parties had also examined cousins
of the deceased in support of their respective contentions, but as the learned Judges have
not placed any reliance on the witnesses examined by the parties, we would only examine
the documentary evidence produced by them, and it would be convenient to examine first
the documentary evidence produced by the first respondent.

The first respondent had relied on two affidavits, which Allahdewaya was alleged to have
executed on the 1st of August, 1945, in a suit between the fourth respondent and
Makhdum Muhammad Yusuf Shah Gardezi. As the affidavits were not proved-according
to law, and as Allahdewaya denied having executed any such affidavits, the learned
Judges rightly held (we say so with respect) that "no reliance can be placed on these
affidavits." The first respondent had also produced a copy of an F. I. R. (Exh. P. 21),
alleged to have been filed by Allahdewaya on 18-12-1939, and Allahdewaya's complaint
in the F. I. R was that his wife (the first appellant) had been abducted by the deceased
about five or six years earlier. Allahdewaya denied having lodged any complaint
whatsoever with the Police, and as the learned counsel for the first respondent had
conceded that the copy (Exh. P. 21) of the F. I. R. was not admissible, the learned Judges
held that this copy was rightly excluded from the evidence. Mr. Ghias Muhammad feebly
attempted to argue that the copy of the F. I. R. was admissible. But, even if it be assumed
that it was admissible, learned counsel did not dispute the fact that no action whatever
had been taken on this alleged complaint. The failure to take any action whatever on the

Page No. 16 of 21
complaint leads to the inference that it was false, therefore, in the circumstances, even if
the copy (Exh P. 21), is admissible, it is of no evidentiary value whatsoever.

Next, according to the first respondent, Allahdewaya had made an application to the
District Magistrate, Multan on 1-8-1945, in which he had alleged that the deceased had
abducted his wife and given birth "to respondents '2 to 6 from him", whilst he was
employed as a domestic in the house of the deceased. A copy of this complaint was
produced (Exh. P. 19) and also the copy of the report, (Exh. P. 20) submitted by the
Tehsildar to the District Magistrate on this complaint. Allahdewaya denied having made
any application against the deceased to the District Magistrate, and he denied having
appeared before the Tehsildar. In these circumstances, as the Tehsildar was not examined,
the learned Judges rightly held (we say so with respect) that "the plaintiff has failed to
legally prove the application' (Exh. P. 19), and the report of the Tehsildar, Exh. P. 20".

The first respondent had also relied on the vaccination certificates of the other appellants,
because according to her, the other appellants were shown in these certificates as the
children of Allahdewaya. But, as the learned Judges have rightly rejected this evidence as
inadmissible, we would turn to the two pieces of evidence produced by the first
respondent by which they were very highly impressed.

Syed Nasir Muhammad Shah, a cousin of the deceased's father, had fully supported in his
evidence the first appellant's claim, that she had married the deceased. But, he said in his
cross-examination that relations between the deceased and Syed Mehdi Hussain Shah
(the fourth respondent) were strained and that on the death of the deceased, the "dastar
was tied on the head of Syed Mehdi Hussain Shah by Syed Muhammad Yusuf. No dastar
was tied on the head of any of the sons" of the deceased. The learned Judges took this
admission of the witness to mean "that the deceased was taken to have died without any
male issue and Syed Mehdi Hussain Shah was recognised as his next of kin", therefore,
according to the learned Judges, this admission was fatal to the claim of the appellants.
But, with all respect to the learned Judges, the dastarbandi of the fourth respondent was
capable of more than one explanation. Thus, for example, the learned Judges have
pointed out that the Gardezi family belonged to the nobility of the Province, therefore, as
the deceased was of noble birth, his cousins may have decided not to give the dastar to
his sons, because they disapproved of his marriage with a Merasi ; there could of course
be other explanations also for the dastar bandi of the fourth respondent, but it was for this
respondent to go in the witness box and give an explanation. He did not, and, on the other
hand, as it is no body's case that the dawar bandi of the fourth respondent was in
accordance with the wishes of the deceased, this dastar band! is a piece of evidence
which lends very little support to the claim of the first two respondents that their father
had not married the first appellant.

The other piece of evidence which impressed the learned Judges very much was the
evidence of the birth certificates of the first appellant's children, and we would recall here
that the first respondent's claim is that the other appellants are shown in these birth
certificates as the children of Allahdewaya. The certificates were proved through
Allahyar, the Chowkidar of village Amirpur Shadianwala, and the children of the first
appellant are stated to have born in this village. On the other hand, according to the first
appellant, her children were born at the house of the deceased in Multan and not in
village Amirpur Shadianwala, but as she did not produce the birth entries of her children
from the birth register of Multan city, this leads to an adverse inference against the claim
of the appellants. However, those would not by itself prevent the appellants from showing
that the birth entries produced by the first respondent were not fit to be relied upon and
that was Mr. Ihsanul Haq's submission.

Mr. Ihsanul Haq took us through the birth entries and submitted that they directly relate to
only three out of the five appellants. This was also admitted by Mr. Ghias Muhammad,
who also conceded that there were mistakes in the names of male children. But, learned
counsel submitted that the entries fell under section 35 of the Evidence Act. That is
correct. and as the entries were made at the time of the birth of the three children, the
learned Judges were of the view that the presumption under section 114 of the Evidence
Act was attracted to these entries. We respectfully agree with this view, and, at first sight,
these entries lend support to the plea of the first two respondents. But, in the first place,

Page No. 17 of 21
these entries relate to only three of the other appellants. Secondly, any presumption under
section 114 is always rebuttable, and the nature of the evidence required to rebut this
statutory presumption will always depend on the facts and circumstances of the case.
Now, in the instant case, although it was the duty of the village Chowkidar to make the
entries, as the entries were made on reports submitted to the Chowkidar, their evidentiary
value depends on the authenticity of the information supplied to the Chowkidar, and if the
information supplied be incorrect or false, the entries would be false. That is elementary,
secondly, these entries are being relied upon to rebut the acknowledgements of paternity
made by the deceased in favour of the other appellants but it is nobody's case that these
birth entries were made on the basis of information supplied by the deceased. Thirdly,
even a casual perusal of Allayar's evidence led the trial Court to conclude that the witness
was going out of his way to support the claim of the first two respondents. Now, although
the learned Judges did not fully agree with this appreciation of the witnesses' evidence by
the trial Court, they observed that the witness "deposed that he knew Allahdewaya and
during his tenure as the Chowkidar three sons, Ghulam Hussain, Muhammad Hussain and
Muhammad Raza were born to him from his wife, Msr. Zainab. They were all brought up
by Allahdewaya. He further deposed that Allahdewaya had never divorced Mst.
Zainab………" Now, although the witness claimed to have made these entries when he
was Chowkidar, the learned Judges have pointed out that he admitted "in his cross-
examination that he worked as a Chowkidar in the village from 1935-36 to 1941 when he
was dismissed." But, as pointed out by the learned Judges, Ghulam Hussain, Muhammad
Hussain and Muhammad Raza "were born from 1928 to 1934 even before his
appointment as the Chowkidar of the village and in this respect, the statement of P. W. 7
Allahyar stands falsified." Thus, as even, according to the learned Judges, Allabyar was
not a witness of truth, this finding necessarily reacts against the evidentiary value of the
birth entries on which Mr. Gbias Muhammad placed so much stress. Therefore, we would
only observe that these entries are of limited assistance to the claim of the first two
respondents. However, it was for the appellants to produce evidence in rebuttal, and we
would now turn to the documentary evidence produced by them in rebuttal.

On the footing that the other appellants were his children, it was the duty of the deceased
to have them educated, and, therefore, as they were educated at the Middle School Nirhal,
the first appellant examined Mr. Fazaluddin, the Headmaster of this School, in order to
prove that the deceased was looking after the other appellants as his children. Now,
Muhammad Ali Shah is the second appellant in the appeal before us, and Mr. Fazaluddin
said in his evidence :-

"Muhammad Ali Shah was admitted to my school, on the 15th June, 1938. An application
was put in by Syed Riaz Hussain Shah in his own handwriting and I have got the original
with me now. Counsel for the defendants tenders the copy, exhibit D. 1. This application
was written and signed by Syed Riaz Hussain Shah in my presence. An admission form
was also filed by Syed Riaz Hussain Shah in my presence and was signed by him. I
brought it with me……"

The witness was cross-examined at length, but the cross-examination only proved his
veracity, therefore, the witness's evidence is sufficient to prove that the deceased had
applied for and successfully prosecuted the application for the admission of his first son,
Muhammad Ali Shah, in the Nirhal Middle School. Mr. Fazaluddin's evidence also
proves that the deceased had got the third and fourth appellants admitted in the Nirhal
Middle School as his children, and the witness produced the relevant admission forms,
etc., which had been signed by the deceased. Similarly, it is common ground between the
learned counsel that Exh. .D. 7 is the application form for the admission of the sixth
appellant, and the deceased had signed this application in his capacity as her father.
However, the application forms of Muhammad Haider Shah, the fifth appellant, are not
available. But, in his letter dated 9-3-1946 (Exh. D. 9), the deceased has referred to
Muhammad Haider Shah as his son. This letter is a very ordinary letter of the type written
by fathers to son, therefore, there cannot be any doubt about its authenticity, and in all
fairness to Mr. Ghias Muhammad, he did not attempt to criticise this letter or the letter
(Exh. D. 8) in which the deceased had addressed the first appellant as his son.

Another piece of evidence which impressed both the Courts is Exh. D. 10. This is an
application made by the deceased to the Food Controller, Multan for permit for sugar.

Page No. 18 of 21
The deceased has stated in this application that sugar was needed for the circumcision
ceremony of his three children which was to take place on the 3rd of August, 1945. Mr.
Ghias Muhammad did not contest the obvious fact that the reference to the three children
in this letter meant appellants 2 to 4, and, both the Courts attached great importance to
this letter of the deceased, as it was countersigned by Muhammad Yusuf Gardezi, who
made an endorsement on the letter that the sugar was needed for the circumcision
ceremony of his brother's children. Now, as Mr. Muhammad Yusuf Gardezi was an
Honorary Magistrate and the head of the Gardezi family, his statement that the sugar was
needed for the circumcision ceremony of the children of the deceased means that
Muhammad Yusuf Gardezi, as the head of the Gardezi family, was aware of the marriage
of the deceased with the first appellant and even if this statement is not sufficient to prove
the first appellant's marriage with the deceased, it goes a very long way to proving that
marriage.

Finally, fortunately for the appellants, the Gardezi family was litigious, so that there was
litigation in the lifetime of the deceased, and one of the principal issues in this litigation
was the validity of the marriage of the deceased with the first appellant. Therefore, the
position taken by the deceased in this litigation should, prima facie, be conclusive on the
question of the validity of his marriage with the first appellant.

In 1944, the deceased sold some land to Mokhdum Muhammad Yusuf by a registered sale
deed and this sale gave rise to two suits. On 30-9-1945, the other appellants filed a suit to
'pre-empt this sale on the ground that they were the children of the deceased. As the
deceased admitted their claim in his written statement, the Court passed a consent decree
for possession of the land by pre-emption in favour of the other appellants on payment of
a sum of Rs. 13,500. This evidence is important, because it proves that the deceased was
publicly asserting that the first appellant was his wife.

The second suit against this sale in favour of Makhdum Muhammad Yosuf was, however,
filed by the fourth respondent. This suit was based on custom, and, therefore, the fourth
respondent challenged the right of the deceased alienate land, except for necessity, and
the position taken by him in his plaint was that the sale was without necessity. But, as the
other appellants had obtained a pre-emption decree, he challenged that decree in his
plaint on the ground that his brother the deceased, was not married to the first appellant,
therefore, the other appellants were not the legitimate children of the deceased contested
this suit and in his written statement (Exh. D-14), he asserted that the other appellants
were his children by his marriage with the first appellant. It would also appear that the
deceased made a statement in Court in this suit, and it would be sufficient to refer to the
observations of the learned Judges on this solemn statement made by the deceased in
Court. The learned Judges have observed :-

"In that suit on the 14th [of August 1945, Syed Riaz Hussain Shah also made a statement
(Exh. D-22) in Court on solemn affirmation and acknowledged that Mst. Zainab Bibi was
his wedded wife and that he has four sons (defendants Nos. 2 to 5) and a daughter from
her. He admitted that Mst, Zainab was at first married to Allah Dewaya son of Farid,
caste Jhatha Merasi. She became a Christian but afterwards she came back and again
embraced Islam."

As the suit was hotly contested, the Court framed issues, and the main issue in the suit
was of the validity of the first appellant's marriage with the deceased. However, although
the first respondent filed a suit inter alia to challenge the validity of this marriage, the suit
was dismissed for default, and Mr. Ghias Muhammad admitted that the dismissal of the
suit was allowed to become final by the fourth respondent.

We pointed out that the fourth respondent's relations with the deceased were strained, and
that was also one of the arguments advanced by Mr. Ghias Muhammad. Yet, despite the
hostility between him and his brother, the deceased, the fourth respondent accepted as
final the dismissal of his suit. although this necessarily implied that he was accepting the
validity of the marriage between his brother and the first appellant, Mr. Ghias
Muhammad feebly attempted to get round this difficulty by submitting that the deceased
had falsely made admissions in favour of the appellants, because of his hostility to his
brother, the fourth respondent. We were unable to understand this submission, and when

Page No. 19 of 21
we invited learned counsel to clarify his position, be stated that the fourth respondent was
entitled to a share in the inheritance of his brother, therefore, the deceased had falsely
acknowledged the other appellants as children in other to do his brother out of his share
in his estate.

The argument is riddled with fallacies. If the solemn admissions made by the deceased in
Court had been made out of spite, the fourth respondent would not have allowed the
dismissal of his suit to become final. Secondly, the fourth respondent could have claimed
a share in the estate of his brother only if the family had been a Sunni family, but as the
deceased was a Shia. even on the footing that the first appellant's marriage with the
deceased would have passed to the first three respondents, as decreed in the judgment
under appeal. Therefore, we are unable to accept the submission that the deceased had
made these solemn admissions in favour of the appellants in Court in order to spite his
brother. The submission is entirely fallacious and is based on the erroneous assumption
that the deceased was a Sunni. And, on the other hand, there is not a shred of evidence to
show that there was any friction between the deceased and his daughters, the first three
respondents. Nor was it Mr. Ghias Muhammad's case that the relations between the
deceased and the first three respondents were strained, therefore, we are satisfied that the
admissions made by the deceased in Court in favour of the appellants were made by him,
because he had married the first appellant after her re-conversion to Islam. As these
solemn admissions made in Court are of extremely high probative value, it is not
necessary for us to refer to the other evidence produced by the first appellant in support
or her claim that the deceased had acknowledged her as his wife, and we would only
observe that the evidence produced by the first respondent on this question pales into
insignificance before the evidence produced by the first appellant. Accordingly, we agree
with the view of the trial Court that the first appellant was the wife of the deceased and
that the other appellants were the children of her marriage with the deceased. Therefore,
we allow the appeal and restore the judgment of the trial Court dismissing the first
respondent's suit against the appellants.

The other appeal arises out of the administration suit filed by the second respondent and
in allowing the second respondent's appeal, the learned Judges had held that only the first
three respondents were the legal heirs of the deceased and were each entitled to a third
share in the estate of the deceased. This conclusion was based on the finding of the
learned Judges that the first appellant had failed to prove her marriage with the deceased,
but as we have reversed this finding, it follows that this appeal too is allowed, and the
estate of the deceased will be divided in accordance with the Shia law amongst the first
appellant and all the children of the deceased, including the first three respondents.

As the widow of the deceased, the first appellant has inherited a 1/8th share in the estate
of the deceased. The balance of the estate has to be divided between the children of the
deceased through his marriages, so that the male child gets double the share of the female
child. Accordingly, the appellants 2, 3, 4 and 5 will each get a 14/96 share in the estate of
the deceased, whilst the 6th appellant and the first three respondents will each get a 7/96
share in the estate of the deceased.

The estate of the deceased has to be divided in accordance with these directions. But as
we pointed out the learned Judges had directed the trial Court to appoint "a suitable
Administrator" to administer and distribute the estate of the deceased. It is not Mr.
Ihsanul Haq's case that an Administrator is not required for the administration and
distribution of the estate of the deceased, therefore, we direct the Administrator appointed
by the trial Court to administer and distribute the estate of the deceased between the
appellants and the respondents in accordance with the direction given herein.

In the result, the appeal against the main judgment is allowed and the appeal arising out
of the administration suit is allowed to the extent specified herein. As the appellants have
been completely successful in both the appeals, we direct that the first two respondents
shall pay their costs in these appeals.

S. ANWARUL HAQ, C. J.-I agree.

ABDUL KADIR SHEII:H, J.-I agree.

Page No. 20 of 21
Q. A. H. Appeals allowed.

Page No. 21 of 21
2006 C L C 1099

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

ZUBAIR HUSSAIN SIDDIQUI----Petitioner

Versus

Mst. SHAKEELA KHANUM and others----Respondents

S.M.A. No.104 of 1995, decided on 19th December, 2005.

Islamic Law---

----Inheritance---Faith, determination of---Conversion to Islam---Faith was a matter

between a person and Allah---If a person says that he is a muslim and it was not shown
that he still believed in something against the basic articles of faith, then nobody would
have any right to dispute

his claim---If a person claimed himself to be a muslim, but believed in something which
was against basic articles of faith, such as is the case of Ahmadis/Qadianis, he would be
treated as non-muslim---Change of name was not necessary for conversion to Islam---
Even if no document was available, mere assertion of a person that he embraced Islam on
a particular date, his statement was to be accepted and he would not be called upon to
produce any other evidence to establish his conversion to Islam----Muslim female
marrying a christian would not become non muslim merely by fact of such marriage,
though it would be a sinful act, but she would not be deprived of her right of inheritance
from her muslim parents.

Rukhsana Ahmed for Petitioner.

Shamdas B. Changani for Applicant.

Shakeela Khanum widow of deceased Zubair Hussain Siddiqui.

Date of hearing: 21st November, 2005.

ORDER

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The facts giving rise to the above

application are that the applicant Mst. Shakeela Khanum is widow of late Zubair Hussain
Siddiqui. After the death of Zubair Hussain Siddiqui, one of his daughters namely,
Naghma Siddiqui tiled a petition bearing S.M,A. No.104 of 1995, praying for issuance of
Letter of Administration in respect of the properties left by the deceased. The Letter of
Administration was granted. Thereafter the listed applications have been submitted by
Mst. Shakeela Khanum widow of deceased Zubair Hussain Siddiqui contending that
petitioner Mst. Naghma Siddiqui is married to a Christian namely, Curt Lawrance
Hillfram. It is alleged that another 'daughter of deceased Zubair Hussain Siddiqui,
namely, Mst. Nighat Siddiqui is also married to another Christian gentleman. It is further
contended that petitioner Mst. Nighma Siddiqui though daughter of late Zubair Hussain
Siddiqui is married to a Christian and therefore, she has ceased to be a Muslim as per
Islamic Law. Same plea has been taken in respect of Mst. Nighat Siddiqui. It is urged that
as per Islamic Law, the person who ceases to be Muslim cannot inherit the property of a
Muslim as his/her legal heir. It is submitted that according to Succession Act, only legal
heir of a deceased can file a petition for grant of Succession Certificate or Letter of
Administration and the petitioner Mst. Naghma Siddiqui ceased to be Muslim thereby
losing her status of legal heir of deceased Zubair Hussain Siddiqui, therefore, she had no
right to file the application for the grant of Letter of Administration. It is further stated
that applicant Mst. Shakeela Khanum has obtained a Fatwa from Jamiatul Uloom Islamia
Allama Banori Town, Karachi, to the effect that if a Muslim girl marries a non-Muslim

Page No. 1 of 3
and continues to be wife of non-Muslim, she ceases to be a Muslim and is not entitled to
inherit the property of her father. It is also averred that the petitioner has obtained the
Letter of Administration by giving wrong statement without disclosing that she had
married to a non-Muslim and therefore, the Letter of Administration already issued may
be revoked.

In the second application, it is prayed that Mst. Naghma be directed to produce National
Identity Card, Domicile Certificate, old and new Passport of Mr. Curt Lawrance Hillfram
and she be further directed to produce her original Nikahnama.

Mst. Naghma Siddiqui in her counter-affidavit has denied that she married a non-Muslim.
She has produced her Nikahnama dated 12-5-1983 showing that Mr. Curt Lawrance
Hillfram converted to Islam before marriage with Mst. Naghma Siddiqui and adopted the
name of Omar Larry Hillfram. She has asserted that the marriage was performed
according to Islamic Law and she is still Muslim and consequently a legal heir of her
father late Zubair Hussain Siddiqui. She has further asserted that her sister Nighat
Siddiqui was also married to a person who had embraced Islam and she had two children
from the wedlock namely, Saleem and Suraiya both of whom are also Muslims. She has
further stated that while submitting application for the grant of Letter of Administration
she disclosed full facts and names of all the legal heirs of deceased Zubair Hussain
Siddiqui including applicant Mst. Shakeela Khanum. It is contended by her that she and
her sister being Muslims and there is no concealment of fact, the application is liable to
be dismissed. Along with her Nikahnama dated 12-5-1983 registered on 14-5-1983, she
has subsequently produced the Certificate dated 11-5-1983, that Mr. Curt Lawrance
Hillfram embraced Islam in presence of one Moulana Sabir Hussain, on 11-5-1983, and
adopted the Muslim name of Omar Larry Hillfram. She has further produced the National
Identity Card of her husband showing his name as Omar Larry Hillfram.

I have heard Mr. Shamdas B. Changani, Advocate for applicant, Mst. Shakeela Khanum
and Ms. Rukhsana Ahmed, Advocate for the petitioner Mrs. Naghma Siddiqui Hillfram.
Perused the Fatwa produced by applicant Mst. Shakeela Khanum forming basis of the
application. The Fatwa contains that marriage of a Muslim female with non-Muslim male
is prohibited and if any Muslim female has married a Christian, the marriage is void and
therefore, they should separate immediately with repentance on their mistake. It further
shows that if a Muslim female has not converted to Christianity and does not believe her
Nikah with Christian as permissible then merely by such marriage with non-Muslim she
will not become a non-Muslim. However, if the female has converted to Christianity or
knowingly that marriage with a Christian is prohibited still considers it to be permissible
then the said female becomes Murtad (apostle). The Fatwa further contains that if a
female has not converted to Christianity and does not consider such marriage to be
permissible she continues to be a Muslim and she will be entitled to inherit her share.
However, if such a female has converted to Christianity or considers such Nikah to be
permissible then only she shall become Murtad (apostle) and shall be deprived of the
inheritance.

I have asked the learned counsel for the applicant Mst. Shakeela Khanum to show any
law under which a Muslim female becomes non-Muslim merely by marrying a non-
Muslim and becomes disentitled from claiming inheritance in respect of the properties
left by her parents. He is not able to produce any law in this behalf. The contents of
Fatwa forming basis of the application are very clear on the point that merely by
marrying a non-Muslim, a female does not become non-Muslim and shall not be deprived
of her right of inheritance in respect of the properties left by her parents.

Secondly, the most important point is that petitioner Mst. Naghma Siddiqui and her sister
Nighat Siddiqui claim that their husbands, who were Christians originally converted to
Islam and thereafter their marriage was performed. There is an affidavit sworn by
husband of petitioner Naghma Siddiqui, to the effect that he embraced Islam on 11-5-
1983 and thereafter married petitioner Mst. Naghma Siddiqui on 12-5-1983.

Page No. 2 of 3
I am of the considered opinion that the faith is a matter between a person and Allah. If a
person says that he is a Muslim and it is not shown that he still believes in some thing
against the basic articles of faith, then nobody has any right to dispute the claim. I would
like to A clarify that if a person claims himself to be a Muslim but believes in something
which is against the basic articles of faith such as, is the case of Ahmedis/Qadianis, he
shall be treated as non-Muslim. In this case, there is nothing on record to show that Mr.
Omar Larry Hillfram, who has alleged that he converted to Islam on 11-5-1983, still
believes in any faith which is against the articles of faith of Islam. Mr. Shamdas B.
Changani, learned counsel for applicant Mst. Shakeela Khanum has contended that in the
old Passport of the husband of applicant his name is shown as Curt Lawrance Hillfram
and in the new Passport he got his name changed to Omar Larry Hillfram and therefore, it
may be inferred that he is still a non-muslim. I do not find any substance in the contention
for the reason that the change of name is not necessary for conversion to Islam. After
conversion of companions of the Holy Prophet, to Islam, names of very few persons were
changed and names of majority were left unchanged. A recent case can be cited with
benefit in respect of well-known Cricketer of Pakistan namely Muhammad Yousuf. He
was a Christian and his Christian name was Yousuf Youhana. Recently he has declared
that he has converted to Islam and has further declared that he had embraced Islam
sometime ago but had not changed his name as he was advised not to change the name
immediately. He has stated that even without change of name he used to perform the
Islamic Injunctions and rites.

In the above circumstances it is held that in the first instance the applicant Mst. Shakeela
Khanum has no right to dispute the claim of the husband of petitioner Naghma Siddiqui
that he had converted to Islam on 11-5-1983. The Nikahnama is also a proof in this
behalf. However, if even no document is available the mere assertion of a person that he
embraced Islam on a particular date, his statement is to be accepted and he shall not be
called upon to produce any other evidence to establish the conversion to Islam. Secondly,
a Muslim female marrying a Christian shall not become non-Muslim merely by fact of
such marriage though it would be a sinful act, and shall not be deprived of his right of
inheritance from her Muslim parents.

The application for revocation of the Letter of Administration on the ground that the
petitioner has no right of inheritance in respect of the properties left by her father is
without substance which stands dismissed, along with another application.

H.B.T./Z-8/K Application dismissed.

Page No. 3 of 3
P L D 2005 Lahore 126

Before Khawaja Muhammad Sharif, J

FATIMA BIBI---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION ICHHRA, LAHORE and 9

others---Respondents

Writ Petition No.2545 of 2004, decided on 27th October, 2004.

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S.16---Constitution of Pakistan (1973), Art. 199--- Constitutional petition---Quashing

of F. I. R. ---Petitioner who was a Christian woman, was married to a Christian and out of
said wed-lock nine children were born---Later on the lady embraced Islam and only after
five days of said conversion she married with a Muslim without observing Iddat
period--Validity---During Iddat period if any woman entered into Nikah that would be
against law and also Injunctions of Islam and it would be liable to Ta'zir---If a married
non-Muslim woman would embrace Islam, she must inform her husband of said
conversion and her husband either would embrace Islam within period of Iddat in which
case marriage would continue, or he would remain a non-Muslim even after expiry of
Iddat period, in which case marriage would stand dissolved ---Iddat was compulsory after
dissolution of marriage of any character---Within Iddat period Nikah would be invalid
rather void and during that period cohabitation would come within definition of Zina and
would be liable to be punished---Petition for quashing of F.I.R. was dismissed., in
circumstances.

Sardar Masih v. Haider Masih and 3 others PLD 1988 FSC 78; Mst. Kundan Mai v. The
State PLD 1988 FSC 89 and Mst. Safia Bibi v. Muhammad Arif, A.S.-I. and others 1997
MLD 158 ref.

(b) Islamic law--

---- Divorce---Iddat---Marriage before completion of iddat period by a divorced

woman---Effect.

Aftab Ahmad Javaid Sheikh for Petitioner.

Page No. 1 of 3
Ch. Ghulam Rasool for Respondent No.7.

Muhammad Hanif Khatana, Addl. A.-G. Punjab with Muhammad Nawaz, A.S.-I. with
record.

ORDER

Brief facts of the case, unfolded through F.I.R.No.416 of 2004 dated 10-7-2004 under
section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) read
with section 379, P.P.C., Police Station Ichhra, Lahore, are that Mst. Fatima Bibi
petitioner; who was Christian, was married to one Siddique son of Sona Masih and out of
the said wed-lock nine children were born. It was further alleged in the F.I.R. that later
on, she embraced Islam on 28-6-2004 and married one Muhammad Younis on 3-7-2004.

2. Learned counsel for the petitioner, while seeking quashment of the above F.I.R.
submits that as the petitioner Mst. Fatima Bibi, having converted herself into Islam, has
married with a Muslim, so no case is made out against her; that it was not necessary for
her to wait for Iddat period because the said condition does not apply in petitioner's case.
In support of the submissions made learned counsel has relied upon Sardar Masih v.
Haider Masih and 3 others PLD 1988 Federal Shariat Court 78.

3. While advancing his arguments, learned counsel for the petitioner submits that even
according to all the four sects of Islam i.e. Hanfia, Malkia, Shafia and Humblia, no case
of Zina is made out against the petitioner, therefore, the impugned F.I.R. got registered on
the statement of the ex-husband of petitioner is liable to be quashed by this Court.

3-A. On the other hand, learned Additional Advocate-General Punjab assisted by learned
counsel for the complainant submits that unless the Iddat period expires no woman can
enter into second marriage and in this regard reliance is placed upon Mst. Kundan Mai v.
The State PLD 1988 FSC 89 in which it was held by their Lordships of the Hon'ble
Federal Shariat Appellate Bench that during the Iddat period if anybody enters into Nikah
that would be against the law and also the injunction of Islam and it will be liable to
Ta'zir. Learned counsel for the complainant has also relied upon Mst. Safia Bibi v.
Muhammad Arif, A.S.I. and others 1997 MLD 158 to support the above view.

4. I have heard learned counsel for the parties, have gone through the case law relied
upon by both the parties and have also given anxious consideration to their respective
submissions made at the bar. In the instant case, the short point involved is whether Mst.
Fatima Bibi, who was earlier, married with. Siddique son of Sona Masih converted to
Islam on 28-6-2004 and five days thereafter, she married with one Muhammad Younis a
Muslim. Certified copies of conversion of Islam and her Nikah with Muhammad Younis
have been placed on record. Record shows that only five days had passed when the
petitioner Mst. Fatima Bibi entered into marriage with Muhammad Younis, which is
against the law and also against the injunction of Islam. In the case of Mst. Safia Bibi v.

Page No. 2 of 3
Muhammad Arif, A.S.-I., and others 1997 MLD 158 such a controversy came under
consideration before this Court and the Hon'ble Judge after scanning the case law on the
subject in paragraph 17 of the report observed as under:--

(a) If a married non-Muslim woman embraces Islam she must inform her husband of the
coversion.

(b) The husband either embraces Islam within the period of Iddat, in which case the
marriage continues, or he remains a non-Muslim even after expiry of Iddat period, in
which case the marriage would stand dissolved.

(c) Iddat is compulsory after dissolution of marriage of any character. The Iddat is
imposed in order to provide opportunity to the non-Muslim husband to consider whether
he wishes to embrace Islam and also as a matter of public Policy in order to ascertain
whether the woman is pregnant by earlier husband so as to avoid confusion of parentage.

(d) Specific procedure needs to be laid down as to how a marriage is to be dissolved in

case the husband does not convert to Islam during the period of Iddat."

For the view taken in the case of Mst. Safia (supra) reliance can also be placed on the
case of Mst. Kundan Mai v. The State PLD 1988 FSC 89 (Appellate jurisdiction)
wherein, in head Note B, it was observed as under:--

5. After having heard learned counsel for the parties and going through the case-law
mentioned above. I find no force in this petition and the same is dismissed.

H.B.T./F-65/L Petition dismissed.

Page No. 3 of 3
P L D 2002 Lahore 187

Before Bashir A. Mujahid, J

Mst. AISHA alias NASIM---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.7038-B of 2001, decided on 31st January, 2002

(a) Islamic Law---

----Non-Muslim married woman---Dissolution of marriage after conversion of religion---

If a married non-Muslim woman had embraced Islam, she must inform her husband of
said conversion of religion and the husband could embrace Islam within a period of Iddat
and in that case the marriage would continue, but if the husband remained non-Muslim
even after expiry of Iddat period, the marriage would stand dissolved---Even in that case
the wife had to apply to the Family Court for dissolution of marriage on that ground and
the Court would summon her husband and inform him about the conversion of his wife
and if he did not embrace Islam within Iddat period, the Court could declare marriage
dissolved---Woman would in that eventuality be entitled to enter into second marriage
with a Muslim and such procedure must be adopted to preclude the possibility of
exploitation of religion merely for the purpose of satisfying sexual desire without any
regards for one's family responsibility---Observance of Iddat period was also compulsory
to avoid the possibility of pregnancy and the controversy of paternity of the child---
Contention that woman's marriage with her previous non-Muslim husband would
dissolve automatically by her embracing Islam, was repelled---West Pakistan Family
Courts Act (XXXV of 1964), S.5 & Sched.

1997 MLD 158(1) ref.

(b) Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979),

Ss.10(2)/16 & 4---Bail, grant of---Accused female who was Christian, had embraced
Islam and on the very day entered into Nikah with a Muslim without observing procedure
which was to be adopted by her for entering into marriage after conversion of religion---
Accused was an uneducated woman and procedure to be adopted was not known to her---

Page No. 1 of 4
No mens rea for commission of Zina existed which had brought the case of the accused
for further inquiry---Accused was in judicial lock-up for the last more than seven months
and was not pregnant---Accused otherwise, being a woman, was entitled to bail---Bail
was granted to the accused, in circumstances.

Muhammad Akram Gondal for Petitioner.

Qazi Zafar Iqbal for the State.

ORDER

Aisha alias Nasim the petitioner seeks after-arrest bail in case F.I.R. No. 156 of 2001
dated 20-3-2001, under sections 10(2)/16 of Offence of Zina (Enforcement of Hudood)
Ordinance (VII of 1979), registered with Police Station Mughalpura, Lahore.

Briefly facts of the case are that the petitioner who was married with Pitras Masih
complainant eloped with her co-accused Nadim Masih and now after embracing Islam his
name is Muhammad Abdullah. She entered into Nikah with him on 31-3-2001. Pitras
Masih her previous husband got registered the instant case with the allegation that she
was his legally wedded wife and has eloped with the co-accused and is living with him
without dissolution of the previous marriage with him and they are committing Zina with
each other.

The bail petition was refused by the learned Additional Sessions Judge vide order dated
6-8-2001. Hence this petition.

Learned counsel for the petitioner contends that after embracing Islam the earlier
marriage with non-Muslim comes to an end forthwith and thereafter she was free to
contract another marriage. When the learned counsel for the petitioner was confronted
with law laid down by this Court in 1997 MLD 158 that the marriage does not come to an
end automatically. She had to appear before the Qazi/Court and offer to her previous
husband, if he wanted to embrace Islam and he refuses thereafter the marriage is to be
dissolved by the Court. She is also obliged to observe Iddat to avoid any complication
regarding the pregnancy or legitimacy of the child and the matrimonial right does not
terminate automatically. It has been further argued that the petitioner is not educated and
she has not committed any offence wilfully as according to her knowledge the marriage
has been terminated after her embracing Islam and she has validly contracted second
marriage she is confined in judicial lock-up since 1-6-2001 and being female, she is
entitled for concession of bail. The challan of the case has already been submitted in
Court but the trial has not yet commenced.

Learned counsel for the State does not oppose the contentions raised by the learned
counsel for the petitioner and has also endorsed the same views.

Page No. 2 of 4
Heard. Record perused.

I do not agree with the contentions raised by the learned counsel for the petitioner and
endorsed by the learned counsel for the State that the petitioner's marriage with her
previous non-Muslim husband stands dissolved automatically by her embracing Islam. Ip
an elaborate judgment reported in, 1997 MLD 158 titled Mst. Safia Bibi v. Muhammad
Arif, A.-S.I. and 3 , others, after considering all the aspects of the case; it has been
concluded, that if a married non-Muslim woman embraces Islam, she must inform her
husband of the conversion and the husband may either embrace Islam within a period of
Iddat and in that case the marriage will continue and if he remains, non-Muslim even
after expiry of Iddat period, the marriage would stand dissolved. Even in that case she has
to apply to the Family Court for dissolution of marriage on this ground and the Court will
summon her husband and inform him about the conversion of his wife and if he does not
embrace Islam within Iddat period, the Court can declare marriage dissolved. The woman
will of then be entitled to enter into second marriage with a Muslim man and this
procedure must be adopted to preclude the possibility of exploitation of religion merely
for purpose of satisfying sexual desire without any regards for one's family responsibility,
to observe Iddat period is also compulsory to avoid the possibility of pregnancy and the
controversy of paternity of the child. In section 20, subsection (4), Chapter 2 of Principles
of Muhammadan Law by D.F. Mulla Muhammadanism distinction has been drawn as (1)
in a country subject to Muslim Law, and (2) in a country where the Law of Islam is not
the law of the land. It has been provided that in the first case, when one of the parties
embraces Islam, he or she should offer Islam to the other spouse, and if the latter refuses
the marriage can be dissolved. In the second case, the marriage is automatically dissolved
after the lapse of a period of three months after the adoption of Islam by one of the
spouses. The case of the petitioner falls in the 1st proviso. Therefore, the stand taken by
learned counsel for the parties is not correct.

However, in the instant case, the alleged occurrence took place between night 2/3-3-2001
and F.I.R. was got recorded by Pitras Masih, husband of the petitioner on 20-3-2001 and
according to the petitioner she alongwith her co-accused embraced Islam on 31-3-2001
and entered into Nikah with co-accused on the same day through Nikah Name without
waiting for the Iddat period to expire. The petitioner is in judicial lock-up for last more
than 7 months and she is not pregnant and according to section 4 of Offence of Zina
(Enforcement of Hudood) Ordinance (VII of 1979), a man and a woman is guilty of
commission of Zina if they wilfully have sexual intercourse without being validly
married to each other. The case of the petitioner is that she is validly married. She being
uneducated, the procedure to be adopted as discussed above was not known to her and
there is no mens rea for commission of Zina which brings the case of the petitioner for
further inquiry and she being female her case is also covered under provison (2) of
section 497 of Cr.P.C. therefore, I am persuaded to admit the petitioner to bail subject to
her furnishing bail bonds in the sum of Rs.50,000 with one surety in the like amount to
the satisfaction of the trial Court.

H.B.T./A-400/L Bail granted.

Page No. 3 of 4
Page No. 4 of 4
 Citation Name : 1988 &nbspPLD &nbsp105 FEDERAL-SHARIAT-COURT

Offence of Zina (Enforcement of Hudood) Ordinance 1979 ---S.10(2)--By conversion to

Islam, a non-Muslim lady's earlier marriage with a non-Muslim man, is dissolved and on
account of her subsequent marriage with a Muslim, she is not guilty of any offence.

Page No. 1 of 1
1980 P Cr. L J 1263

[Karachi]

Before G. M. Shah, J

DAYA-Applicant

versus

MUHAMMAD SALEEM AND 2 OTHERS-Respondents

Criminal .Miscellaneous Application No. 54 of 1980, decided on 29th April, 1980.

Criminal Procedure Code (V of 1898)----

-----S. 497 (5) and Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.
10-Bail, cancellation of-Abductee, a married Hindu lady, leaving K for M of her own free
will-Lady converting to Islam and marrying accused with her own choice-Whether,
abductee's conversion to Islam automatically dissolved her previous marriage with Hindu
(Quaere)--Previous marriage, if stood dissolved, in circumstances of case offence under
S. 10 nut made out-Held, such being an important question of law depending on facts of
case, bail in circumstances not cancelled.

Sharif Khatak for Applicant.

Ghulam Sawar Chohan for Respondents Nos. 1 and 2.

Muhammad Nazir Alam, for A: G. for the State.

ORDER

The case against the respondents 1 and 2 has been challaned in the Court for offence
under section 10 of Ordinance No. VII of 1979, the offence of Zina (Enforcement of
Hudood) Ordinance. They were allowed bail by the learned VIIth Additional Sessions
Judge, Karachi by his order dated 27-12-1979. Subsequently another application was

Page No. 1 of 2
filed for cancellation of bail, allowed to the respondents, which came up for hearing
before the learned Vth Additional Sessions Judge Karachi, which was rejected by the
order dated 13-1-1980. The application for cancellation of bail has been repeated here
under section 497(5) of Cr. P. C.

Mst. Luxmi is aged about 18/19 years. She was first 3 Hindu and was married to one
Shyam, also a Hindu. Due to certain differences with her husband, she came to stay with
her father Daya and her mother, in Sultanabad. She developed a relationship with
respondent No. 1 Mohammad Saleem. It appears that Muhammad Saleem left Karachi for
Multan followed by Mst. Luxmi, where she embraced Islam and was later on married to
the respondent No. 1. She is said to be having a document in respect of her conversion to
Islam and marriage by Nikah to respondent No. 1. At the time of her arrest, Mst. Luxmi
had made a statement before the Magistrate, supporting the same facts of her conversion
to Islam and marriage, of her own free will, with the respondent No. 1.

It is admitted position that Mst. Luxmi had left for Multan of he own free will. She also
got converted to Islam and was married to respondent No. 1 with her own choice. The
material point in this case is of con version of Mst. Luxmi, who as a Hindu, was already
married and on her conversion to Islam, whether her previous marriage, stood dissolved,
without any decree or order of the Court of law. If her conversion to Islam, automatically
dissolved her previous marriage with the Hindu, what would be its effect under the
circumstances of the case. If the previous marriage with a Hindu, stood dissolved, after
her conversion to Islam, then her subsequent marriage with the respondent No. 1, would
not be an offence under section 10 of Offence of Zina (Enforcement of Hudood)
Ordinance, as J alleged.

Since this is an important question of law depending upon the facts of this case, Mr. Nazir
Alam appearing for A.-G. for the State does not support the . application for cancellation
of bail. The application is accordingly dismissed.

Petition dismissed.

Page No. 2 of 2
1975 P Cr. L J 732

[Lahore]

Before Karam Elahee Chauhan, J

BACHINOO –Petitioner

Versus

ABDUL HAKIM-Respondent

Criminal Miscellaneous No. 166-H of 1975, decide or 14th April 1975.

(a) Criminal Procedure Code (V of 1898)-----

-----S. 491-Allegation of kidnapping and unlawful detention of a girl-Girl (a Christian)

stating she was major and had married respondent of her own will after embracing Islam
-First point to be determined: age of girl Municipal Birth Certificate preferred to
certificate issued by a Doctor regarding age-F. I. R., against respondent, under S. 363, P.
P. C. already registered in which challan had been recommended-High Court, in
circumstances, refrained from expressing any opinion concerning genuineness and
validity of marriage or conversion Pending criminal trial girl ordered to be lodged in
Dar-ul-Aman at expense of respondent.

Skinner v. Orde 14 M I A 309; Skinner v. Skinner 251 A 34; Mrs. Marina Jatoi v.
Nuruddin K. Jatoi and another P L D 1 967 S C 580; Outlines of Muhammadan Law by
Asaf A. A. Fyzee 3rd (1964) Edn., p. 172 and Mst. Afat Bibi and another v. The State P L
D 1972 Lab. 121 ref.

(b) Muhammadan Law-----

-- Conversion to Islam and marriage, dew concerning-Noticed.

Duragh Committee, Ajmer and another v. Syed Hussain All and others A I R 1961 S C
1402 ; Sardar Syedna Tahir Saffuddin Saheb v. State of Bombay A I R 1962 S C b53;
West Virginia State Board of Education etc. v. Walter Bernatte 319 U S 624-671; 12
Corpus Juris 942; Sahih Muslim, Vol. III, pp. 704 to 708 ; Chapter of Nikah. Vol. II, p 72;

Page No. 1 of 11
Succession in the Muslim Family by N. J. Coulson (1971 Edition), pp. 11, 25, 217; Syed
Faiz All Shah and another v. Ghulam Abbas Shah etc. P L D 1952 Azad J & K 32; John
Jiban Chandra Datta v. Abinash Chandra Sen I L R 2 Cal. 12; Ameer Ali, Vol. II, pp. 384,
387; Tyabji, Art. 194-A; Wilson. Art. 11(a); Fitzgerald, p. 85; Qureshi v. Qureshi 1974 P
L J (Trib) 278 ; Hashmi v. Hashmi (1971) 3 A E R 1253; Vol. IX, pp. 532-543; Vol. III, p.
226; Vol. III, p. 226; Vol. II, p. 506 and Verse 3; Vol. I p. 466; Vol. IX, p. 171; Vol. IV, p.
247 and Mauji Ali v. Syed Safdar Hussain Shah and another 1970 S C M R 437 ref.

Major J. A. Pervaiz for Petitioner.

Ch. M. A. Butter for Respondent.

Dates of hearing : 4th, 7th, 8th, 10th and 11th April 1975.

JUDGMENT

In the revenue estate of Mianmir there is situated a locality near Qurban Lines, Lahore,
which is known as "Jhuggis" or "Jhuggian" after small huts or hutments built by people
there. In that place there lives a family of one Makhan Christian. The name of his wife is
Mst. Bachinoo (petitioner). They have a daughter Mst. Zarina by name (hereinafter called
the detenu)whose date of birth as brought on this record by the statement of her mother,
with reference to a certified copy of the birth entry in the Lahore Municipal record Exh.
P/1 is 17-9-1960. Just opposite the house of this family was the residence of Abdul
Hakim--(A. S. I.) (hereinafter called the respondent)-who, during the relevant time, was
posted in the Telecommunication Police. Qurbanlines, Lahore. Abdul Hakim is a married
person who has a wife, five sons and two daughters. It is a common ground that the
detenu used to visit the house of the A. S. I., which gave rise to an open scandal that they
were indulging in some illicit affair. Keeping away the details for the present the case as
pleaded in the petition by the petitioner (who is mother of the detenu) is that the A. S. I.
abducted/kidnapped the girl and was retaining her without lawful authority. It was,
therefore, prayed that the girl may be taken away from the respondent Abdul Hakim and
be brought before this Court and handed over to the petitioner or placed in some welfare
organisation. In the petition it was averred that the respondent was a police officer and,
therefore, from Police quarters the petitioner was getting no relief. The petition appears to
have been drafted on 11-3-1975 and was filed in this Court on 13th March 1975 but
actually came up before me on 17th March 1975 when I directed that let a bailiff be
deputed to produce Mst. Zarina and that Abdul Hakim respondent should also appear in
person. The bailiff, however, reported that Abdul Hakim Lad been transferred to
Rawalpindi and had left Lahore on 13-3-1975 and had seven days joining time at his
disposal and was required to report for duty in Rawalpindi on 21-3-1975. In that situation
on 18-3-1975, after seeing the report of the bailiff, I ordered that a copy of this petition be
sent to the Inspector-General of Police, Lahore, who should make efforts to serve the
respondent and produce the girl. I also admitted the case to a regular hearing and issued
notice to the respondent as well.

2. The case then came up before me on 21-3-1975 when---(thanks to the assistance

rendered by the I. G.)--the girl and the respondent appeared. They filed no written
statements. However, I recorded the statement of the girl Mst. Zarina, her mother Mst.
Bachinoo petitioner and the respondent A. S. I. Abdul Hakim and closed the case when
all of them stated that they did not want to produce any further evidence. The parties
tendered certain documents which were placed on the record and were also marked or

Page No. 2 of 11
exhibited at their instance. The statement of the girl is that she became major (in her own
words started menstruating)-six years ago (which would mean somewhere in 1969)- that
she used to visit the house of the A. S. I. who was their neighbour; that there was an open
scandal in general in the locality that she was carrying on with the A. S. I. that as a
reaction to this accusation she left the house of her parents and went to Bahawalpur; that
Abdul Hakim A. S. I. belongs to Bahawalpur and his house is in Police Lines,
Bahawalpur ; that she was brought back by her relations but she again left her parents;
that she was taken over by Abdul Hakim on 26-2-1975 from a Court in Lahore and he
took her to Dhoka Mandi in district Sheikhupura where he married her on
11-3-1975(which corresponds to the date of the drafting of the present writ petition
wherein an ancillary prayer also was that the girl should be got medically examined); that
she embraced Islam in Badshahi Mosque, Lahore at the hands of a Maulvi whose name
and whereabouts she did not know by representing that she was 18 years of age and-(by
misrepresenting)-that her parents were dead though they were alive. She stated that she
did not disclose her difficulty to the Maulvi Sahib at that time; that now she was the
(second) wife of that Abdul Hakim A. S. I. and was not in any unlawful custody and
would like to go and live with her husband. The A. S. I. respondent supported the girl in
material particulars and claimed that she was his (second) wife. His statement shows,
leaving aside the controversial matters for the present, that the girl was with him from
26-2-1975 up to 11-3-1975 when he had no relationship with her, because, the alleged
marriage is said to be of 11-3-1975. The statement of the mother mainly was that they
were Christians; that Mst. Zarina never embraced Islam; that she was a minor; that the
aforesaid conversion and marriage are neither bona fide nor valid in- the eye of law and
are just a camouflage to procure shelter for the earlier abduction/kidnapping committed
by the A. S. I. She has prayed that the girl may be handed over to her as her natural
mother.

3. The first point to be prima facie seen in these proceedings under section 491 of the Cr.
P. C. is as to what is the age of the girl. I have before me Exh. P/1 which is a certified
copy of the birth entry of Mst. Zarina. According to that birth entry which was made on
19-9-1960 Mst. Zarina was born on 17-9-1960. In that entry the name of the mother of
Mst. Zarina is written as Bachinoo and the family is described as Christians. It is
admitted by the girl in her statement that Kehroo was the father of her mother. The name
of the father of the mother of the girl as given in Exh. P/1 is Kehroo. This shows that the
birth entry Exh. P/1 apparently pertains to Mst. Zarina. There is no evidence before me
that this entry pertains to any girl other than Mst Zarina (detenu) the daughter of the
petitioner. Baptism certificate Exh. P/2 also gives the same date of birth of that girl and
there the name of the father of the girl is duly shows as Makhan. Accepting all this
evidence I have no hesitation in tentatively holding that Mst. Zarina was prima facie born
on 17-9-1960 and her age in, proceedings before me shall be calculated on that basis. As
against this the girl has produced Exh. D/2 which is a certificate dated 20-3-1975 of Dr.
Qamar-uz-Zaman of Lahore (not produced) wherein it is written that the age of Mst.
Zarina on that date according to X-Ray assessment was in about 18 and below 20 years.
This certificate apparently is quite vague and indefinite. The doctor who gave this
certificate has not been produced. It does not contain the details or chief characteristics,
signs or any particular indications on which the report was based. All it says is that
X-Ray of right shoulder, elbow and wrist-joints revealed the result hereinbefore
mentioned. It does not state what characteristics the photos of the aforesaid parts of the
body indicated The copy of the relevant X-Ray has not beer filed. This report is of a date
subsequent to the admission of this petition (18-3-1975) and before production of the girl
in Court (21-3-1975). For all these reasons I think it will be safe for the present to
proceed on the positive entry of birth in the records of the Lahore Municipal Committee
which was made long before the present dispute arose and the Baptism certificate which,
in the circumstances of the case tentatively appears to be authentic and definite. I hold
accordingly. It will be appreciated that the view expressed here is only tentative and in
view of the order which I am proposing to pass in this case it is not to be considered as
conclusive between the parties who will be at liberty to formally establish their stands
before the trial Court as will be pointed out in the later part of this judgment.

Page No. 3 of 11
4. The next point argued by the learned counsel for the petitioner was that Mst. Zarina
neither could nor she did voluntarily and honestly embrace Islam on 27-12-1974 as has
been claimed by her in her own statement. He submitted that the main evidence in the
case in support of the girl having embraced Islam is "sanad" Exh. D/3 of Syed
Mohammad Abdul Qadir Azad, Mufti/Khatib, Badshahi Mosque, Lahore (hereinafter
called the Maulvi or Maulvi Sahib)-who appeared in Court and made his statement. The
learned counsel argued that the sanad purports to be on form bearning No. 594 in book
No. 3 marked as Exh. PW2/1 maintained by the aforesaid Maulvi. The learned counsel
referred to the statement of the Maulvi Sahib and pointed out that he had deposed that the
original sanad Exh. D/3 bears both his seal and signatures. He stated that it was on
27-12-1974 when the girl embraced Islam at his hands. The girl, according to Maulvi
Sahib affixed her thumb-impression on Exh. D/3 in his presence. He further stated that
the girl came to him all alone not accompanied by anybody. According to him it was on a
Friday at about 1-00 p.m. when he was present in his Hujra at the main gate of the
Badshahi Mosque near the Mazar of Allama Iqbal when the girl appeared in his Hujra
and expressed a desire to embrace Islam. He enquired her name and filled in the form
bearing No. 594 Exh. D/3 details of which have been mentioned earlier. The learned
counsel then referred to the deposition of the petitioner himself Mst. Bachinoo, mother of
the girl, who stated that on the date when it is alleged that the girl embraced Islam she
was in her house with her mother because of certain function at that place and that the
plea of her daughter having embraced Islam on 27-12-1974 is all incorrect. The learned
counsel took me through the original book containing the record of conversion of Islam.
It contains forms in duplicate of each serial number. It consists of serial numbers 401 to
600. It shows that when a person embraces Islam the original sanad is issued to the
convert while its office copy, which is actually a carbon copy, is retained in the book. The
book number and sanad number are printed on both the original and the carbon copy.
Learned counsel with reference to various entries of the book argued that it was being
maintaned in a most irregular and haphazard manner by the Maulvi Sahib. In a good
number of forms (carbon copies) the dates are missing. He submitted that in various
office copies of the forms the signatures and thumb-impressions of the converts are not
affixed. The learned counsel referred to the deposition of the Maulvi Sahib wherein he
had himself counted as many as 20 forms-(carbon copies)-in this respect as for example
forms Nos. 406, 408, 417, 418, 463, 476, 483, 489, 490, 499, 517, 523, 527, 528, 529,
539, 559, 567, 577 and 589. About the nature of this register the statement of the Maulvi
Sahib was also referred which reads as follows:--

"The register remains in my custody. The register however is not kept in any safe custody
under any seal or lank. We it open and readily available. As a matter of fact we can give
forms to everybody who needs them. Whenever I go out of Lahore I give the register to
anybody I like with authority to fill it in. however, the signatures on the form are
appended by me on return even though the transaction may have taken place in my
absence. The register sometimes is handed over to the Maulvi/Imam of the Badshahi
Mosque and sometimes to Naib Raees Tableegh. Even if any person embraces Islam at
their hands they do not append their signatures. The signatures are always mine."

On the basis of that it was argued that the book was not being kept or maintained in any
regular manner and that it was not safe to straightaway accept the entries contained in any
Sanad or in its carbon copy tit the face value. With this prefix learned counsel for the
petitioner made a comparison of document Exh. D/3 wits its counter part i.e.
corresponding sanad-(carbon copy)-in the book and pointed out—

(a) that the carbon copy does not contain the date though tire main Sanad does contain the
date as 27-12-1974.

Page No. 4 of 11
(b) that the carbon copy in the book does not contain the thumb-impression of the girl
though some thumb-impression does exist on Exh. D/3 ;

(c) that though the date in Exh. D/3 which, as already stated is form No. 594-(of book
No. 3)-is 27-12-1974 and in ordinary course of business forms prior thereto and bearing
earlier serial numbers must be of prior dates but according to the learned counsel enough
(proceeding in backward order)-form No. 593 is dated 5-1-1975, form No. 592 is dated
24-1-1975, form No. 591 is dated 24-1-1975, forms Nos. 587, 588, 589 and 590 are dated
17-1-1975 and form No. 586 is undated. Similarly forms No. 584 and 585 are dated
10-1-1975, form No. 583 is dated 9-1-1975, forms Nos. 582 and 481 are dated 3-1-1974,
forma Nos. 580 and 579 are dated 3-1-1975 and form No. 578 is dated Z7-12-1974. The
learned counsel argued that it was strange enough that form No. 594 which is one in
dispute is said to be dated 27-12-1974 though it comes after various from of subsequent
dates of December, 1974 and January 1975. He argued that the Maulvi Sahib was duly
confronted in his deposition with aspect of the matter but his explanation was that at that
time the carbon was placed on that page and for this reason the Sanad at the page where
the carbon was placed was prepared and it was not noticed that pages of forms No. 579 to
593 were blank at that time Learned counsel for the petitioner argued that this was a very
curious explanation and should not be accepted especially another for No. 578 does exist
at some far earlier place containing this very date namely, 27-12-1974. According to the
apparent tenor of the various, forms, learned counsel submitted, that form bearing No.
594 Exh. D/3 comes somewhere after 24-1-1975 which is the date of form No. 592 and
before form No. 595 which is dated 29-1-1975. However the form aforesaid, it was
emphasised, was issued without a date but later on therein the date 27-12-1974 was filled
in, but whosoever filled in this date, however, did not or could not enter the same in the
carbon copy, because, in the very context it could not fit in at that place. Learned counsel
argued that to him it appeared that the Maulvi Sahib in this way was responsible for
providing the aforesaid document, namely, Exh. D/3 to whomsoever he provided it and
was thus instrumental to the preparation of a fictitious and wrong instrument in this
respect. The learned counsel commented that the Maulvi Sahib probably did not realise
that somebody may get the office copy (the book) produced in Court and expose its myth
in that behalf. Learned counsel also made a bleak reference to a statement of the girl
which she made before an official of the Darulaman (contained in police file which was
seen and returned) wherein she had stated that she procured the Sanad for embracing
Islam from Maulvi Sahib (rather) on 6-2-1975, which statement, according to the learned
counsel exploded the falsity of the plea of conversion on 27-12-1974. Coupled with this
is the fact, the learned counsel argued, that when on 3-4-1975, in the early hours of the
day, an order was passed to summon the Maulvi Sahib alongwith the register in Court
Abdul Hakim A.S.I., rushed to see the Maulvi Sahib in Badshahi Mosque before even the
process of this Court reached there and tried to persuade him to see his counsel-(this was
so deposed by the Maulvi Sahib in his statement). He argued that if A. S. I. Abdul Hakim
was so innocent then there was no need on his part to have behaved like that. He argued
that Abdul Hakim and the Maulvi Sahib probably wanted to set right their record to such
an extent as might have been possible but when the relations of the girl also followed the
A. S. I. and reached the Badshahi Mosque they found the A. S. I. already closeted with
the Maulvi Sahib. This chase of the relatives of the girl, according to the learned counsel,
frustrated the designs of the A. S. I. and the Maulvi Sahib with the result that the Maulvi
Sahib ran away from his Hujra and concealed himself till 6-45 p.m. in vain, because,
when he came back he found a Process-Server of this Court present outside his Hujra to
serve him;

(d) that the girl has mentioned that she went to the Badshshi Mosque all alone to embrace
Islam. Learned counsel argued that this statement could not be accepted at its face value.
He argued that if the background of the atmosphere in the locality where she lived is kept
in view it will be appreciated that she was being accused of carrying on a scandalous
affair with the respondent and it was highly improbable that she would not take the
assistance of any person to go to Badashshi Mosque. The learned counsel emphasised

Page No. 5 of 11
that the respondent denied all responsibility regarding her embracing Islam, because, he
deposed that he did not accompany her anywhere at that time. In these circumstances it
was submitted by the learned counsel that the plea that she went all alone to the Badshshi
Mosque on 27-12-1974 was not worthy of acceptance, just as it is not acceptable that the
girl could go to Bahawalpur or appear before various Magistrates here and there very
often. He submitted that it cannot be imagined that there would be no villain behind all
these scenes and affairs;

(e) learned counsel submitted that it may be noticed that earlier she was recovered by his
relatives from Bahawalpur somewhere on 14-1-1974 or near about that period. On
6-2-1975 she appeared before Ch. Abdul Majid, M. I. C., Lahore, wherein she deposed
that she had embraced Islam one month prior thereto and that she may be sent to
Darulaman. See Annex. `D' to the writ petition. This document was referred to by the
learned counsel for the petitioner for pointing out that instead of favouring the girl and
the A. S. I. it goes against them, because, in that document the plea taken was that she
had embraced Islam a month ago which would go back to 6-1-1975 and not 27-12-1974.
This approach, he argued, also supported the view expressed by him that Sanad Exh. D/3
though dated 27-12-1974 (but undated in carbon copy) was issued and prepared much
later, probably with a fictitious back date and event Learned counsel for the petitioner
pointed out that the girl according to an F. I. R. which was lodged by the petitioner on
7-2-1975 was allegedly abducted by Abdul Hakim A. S. I. on 13-1-1975 at about 4-311
p.m. The Sanad of embracing of Islam, according to the learned counsel, seemed to have
been fabricated thereafter or somewhere near about that date and as such the story of
conversion on 2.7-12-1974 which, on the facts and in the circumstances of the case, does
not, as argued by him, fit in the context should not be believed.

5. This was about the factum of conversion. Coming to the validity and bona fide aspect
of the alleged conversion, learned counsel for the petitioner argued that in matters of
conversion from one religion to another in cases of present type the essential point for
consideration, as laid down by their Lordships of the Privy Council in Skinner v. Orde
(14 M I A 309) is that the conversion should be bona fide and not merely a colourable one
with the object of eluding the personal law to which a person is subject. In that case a
Christian husband married to a Christian woman, wanted to legalise his marriage with a
native Christian woman so it was pleaded that by mere oral declarations they had
embraced Islam. Their Lordships of the Privy Council held that conversion was not a
genuine or bona fide one and was actuated with the desire to enjoy the privilege of
polygamy conferred by the Muslim Law and the marriage was held invalid. In Skinner v.
Skinner (25 I A 34) they, however, left open the question whether a bona fide change of
religion made honestly with the assent of both the spouses-(who were involved in that
case)--and without intention of fraud, will have the effect of altering the rights incidental
to marriage. Learned counsel for the petitioner submitted that in the instant case also the
alleged conversion was not a bona fide transaction and due to the points earlier raised by
him it should be held as a camouflage and a put up affair. He further argued that to
convert to Islam a person must be major baligh but as the girl was not a major but was a
minor, therefore, even otherwise she could not have converted to Islam. Learned counsel,
carrying the argument further, submitted that according to sections 4, 5 and 60 of the
Christian Marriage Act XV of 1872 such a marriage with a minor Christian girl was
invalid. These sections read as follows :-

"4. Marriages to be solemnized according to Act.-Every marriage between persons, one

or both of whom is (or are) a Christian or Christians, shall be solemnized in accordance
with the provisions of the next following section ; and any such marriage solemnized
otherwise than in accordance with such provisions shall be void.

Page No. 6 of 11
5. Persons by whom marriages may be solemnized.-Marriages may be solemnized in
Pakistan-

(1) by any person who has received episcopal ordination, provided that the marriage be
solemnized according to the rules, rites, ceremonies and customs of the Church of which
he is a Minister ;

(2) by any Clergyman of the Church of Scotland, provided that such marriage be
solemnized according to the rules, rites, ceremonies and customs of the Church of
Scotland ;

(3) by any Minister of Religion licensed under this Act to solemnize; marriages ;

(4) by, or in the presence of, a Marriage Registrar appointed under this Act ;

(5) by any person licensed under this Act to grant certificates of marriage between Native
Christians.

60. On what conditions marriages of Native Christians may be certified.---Every

marriage between Native Christians applying for a certificate shall, without the
preliminary notice required under Part III, be certified under this Part, if the following
conditions be fulfilled, and not otherwise-

(1) the age of the man intending to be married shall exceed sixteen years, and the age of
the woman intending to be married shall exceed thirteen years ;

(2) neither of the persons intending to be mart-fed shall have a wife or husband still living
;

(3) in the presence of a person licensed under section 9 and of at least two credible
witnesses other than such person, each of the parties shall say to the other—

I call upon these persons here present to witness that I, A, B, in the presence of Almighty
God, and in the name of our Lord Jesus Christ, do take thee, C. D., to be my lawful
wedded wife (or husband) or words to the like effect:

Provided that no marriage shall be certified under this Part when either of the parties
intending to be married has not completed his or her eighteenth year, unless such consent
as is mentioned in section 19 has been given to the intended marriage, or unless it appears
that there is no person living authorized to give such consent."

Page No. 7 of 11
Learned counsel argued that whether judged from the point of view of section 4 or
section 60, the girl, who according to him was a (minor) Christian at the relevant time,
could not have been married to the respondent. He further submitted that the respondent
had been getting the statements of the girl recorded at various places before various
Magistrates to whom the background of the case was never disclosed and who seriously
made no effort to find out the real age of the girl and before whom the girl made tutored
statements. These statements he submitted were procured to create defence by the
respondent to show that it was all the girl's own doing through and through and that he
was quite innocent in all matters in all respects and at all stages, even though he took
away the girl on 26-2-1975 from the Court of a Magistrate when he had no right or
authority to do so. Learned counsel in this respect also referred to Mrs. Marina Jatoi v.
Nuruddin K. Jatoi and another (P L D 1967 S C 580) where at page 592 Muhammad
Yaqub Ali, J. (with whom, according to the learned counsel, the other noble Lords did not
differ on this particular point) observed that, "the above examination of the relevant
provisions of the British Marriage Act, 1849, the Pakistan Divorce Act, 1869 and the
Pakistan Christian Marriage Act brings out that a marriage between a Muslim male and a
Christian female though permitted by Islam can be performed in Pakistan under Act XV
of 1812 and to that extent the application of personal law stands excluded by statute".
Reference was also made to the following passage in the "Outlines of Muhammadan
Law" by Asaf A. A. Fyzee (Third) (1964 Edn.) where at page 172 the learned author
writes as follows:---

"In this branch of Jurisprudence, where men and women often try to twist and mould the
rules of law to suit their own selfish ends, the words of Blagden, J. must always be kept
in view:

`British India as a whole, is neither governed by Hindu, Mahomedan, Sikh, Parsi,

Christian, Jewish or any other law, except a law imposed by Great Britain under which
Hindus, Mahomedans, Sikhs, Parsis and others enjoy equal rights and the utmost possible
freedom of religious observance, consistent in every case with the rights of other people.
I have to decide this case according to the law as it is, and there seems, in principle, no
adequate ground for holding that in this case Mahomedan Law is applicable to a
non-Mahomedan.-Robaba Khanum v. Khodadad Bomanji Irani (1946) 48 Bom. L R 864,
869.'

After quoting the above case the learned author states "these principles enunciated by an
English Judge in a British Indian Court would apply equally in India and Pakistan".

The learned counsel further submitted with reference to Mst. Alfat Bibi and another v.
The State (P L D 1972 Lah. 121) that the minor girl having been removed, enticed or
taken away from the custody of her lawful guardians without their consent, the offences
under section 363/366, P. P. C. etc. were complete and any subsequent "events" or
"retention" or "manipulations" by the respondent A. S. I. could not take him out of the
clutches of law. The marriage, he argued, was also a hoax and a mere paper transaction,
where the age of the girl and the address of A. S. I. are wrongly given, various columns of
"Nikah Nama" Exh. D/5 were deliberately left blank and the document was prepared to
cover the offences of kidnapping/abduction etc. after stealing knowledge of the
preparation of this petition and all this game or drama was allegedly played in Mandi
Faizabad (Dhota Mandi) in Teksil Nankana Sahib District Sheikhupura even though the
A. S. I. resided in Lahore. He submitted that it was doubtful whether the A. S. I. was in
Dhoka Mandi on the relevant date because, he left charge of his post in Lahore only on

Page No. 8 of 11
13-3-1975-(and on 11-3-1975, the alleged date of marriage, he is supposed to be in
Lahore). The Nikah Nama, like the Sanad of conversion, it was argued, was a back-dated
document.

6. As against all that was argued by the learned counsel for the petitioner his counter-part
Ch. Muhammad Anwar Buttar, learned counsel for the A. S. I. and Mr. Perwaiz Buttar
learned counsel for the girl, argued that the story of conversion was perfectly correct
despite certain defects, irregularities and acts of omission and commission-(to which
otherwise they advanced no reply)-in the book kept by the Maulvi Sahib as a record of
persons who embraced Islam, that Exh. D/3 was a genuine document; that the girl having
embraced Islam her marriage on 11-3-1975 with the respondent was perfectly lawful, just
and proper, According to him, there was no bar ire Islam for a girl of the present age to
have embraced Islam. He submitted that his client never had any illicit affair with the girl
at any stage and that the accusations levelled against hire were false and that he had
neither abducted her nor had committed any offence or any immoral act in. this respect.
lie submitted that neither the conversion nor the marriage were fake or camouflage in any
respect but were all bona fide events which had taken place in normal course of life. He
referred to Article 20 of the Constitution of Islamic Republic of Pakistan, 1973 for the
proposition that "subject to law, public order and morality, every citizen shall have the
right to profess, practise and propagate his religion". He quoted certain case-law for
interpretation of this fundamental right. He referred to Duragh Committee, Ajmer and
another v. Syed Hussain Ali and others (A I R 1961 S C 1402), Sardar Syedna Taher
Saifuddin Saheb v. State of Bombay (AIR 1962 S C 853), West Virginia State Board of
Education etc v. Walter Barnette (319 U S 624 to 671=87 L ed. Oct.1942, Term 1628.), 12
Corpus juris 942 ; Sahib Muslim, Vol. III, pages 704 to 708 for interpretation of the
Hadith :----

Volume I, pages 135 to 139 for the principle (that there is no coercion in religion) ; for the
meaning of the word "coercion" he referred to Chapter of Nikah, Vol. II, p. 7 to show that
for conversion a person should be i.e, one who has the capacity of discernment.
Reference was also made to "Succession in the Muslim Family" by N. J. Coulson' 1971
Edn, pp. 11, 25 and 217 to explain the terms (discernment) and (prudent judgment) for
which ages were quoted, according to him, as 10 and 15 years respectively. He also
referred to Law of Divorce by K. N. Ahmed, page 519 ; Syed Faiz Ali Shah and another
v. Ghulam Abbas Shah etc. (P L D 1952 Azad J & K 22) regarding conversion. Reference
was also made to John Jiban Chandra Datta v. Abinash Chandra Sen (I L R 2 Cal. 12)
(Fyzee in his book "Outlines of Muhammadan Law" at page 172 comments that "this
decision appears to overlook the important principle that a previous marriage in
accordance with one scheme of personal law cannot be destroyed by the mere adoption of
another faith by one of the spouses). It is also in conflict with the opinions of Ameer Ali,
Vol. II, pp. 384, 387, Tyabji, Art. 194-A; Wilson, Art. 11(d) and Fitzgerald, p. 85, and it is
submitted that it is erroneous.") Qureshi v. Qureshi ((1974) P L J (Trib.) 278), Hashmi v.
Hashmi (1971 3 A E R 1253). For he referred Vol. III, p. 226; vol. It pp. 532-543 and Vol,
II, p Vol. III, p. 226, S06. Her referred to Verse 3 of which is to the effect :-

(you can marry any woman whom you prefer) ;

Mohammad Abdur Rahman Almubarakpuri Col. I. P. 247; Mrs. Marina Jatoi v. Nuruddin
Jatoi and another (P L D 1967 S C 580) which, according to him, favoured his view point
at 597; Muslim Law by K. P. 5aksena 166. Reference was also made to Maui Ali v. Syed
Safdar Hussain Shah and another ((1970) S C Ail R 437) Vol. II page 281 and finally
advanced the plea that the Muslim Family Laws Ordinance (VIII of 1961) will override
the statutes reliedu pon by the learned counsel for the petitioner and even if the story of

Page No. 9 of 11
conversion as pleaded is doubtful or is not believed, the respondent could marry a
Christian girl of this age according to the forms and formalities of Muhammadan Law.

7. I acknowledge anti appreciate the industry and labour put in by the learned counsel for
the parties in this case and I have deliberately reproduced the arguments advanced before
me by them in extenso in order to show, as is obvious, that they are important disputed
questions of fact and law. The present, however, is an application under section 491 of the
Criminal Procedure Code, in which I think I should not hold any detailed enquiry or
record any positive or conclusive finding, because, these proceedings are generally of a
summary character and also because an F. I. R. against the respondent stands duly
registered in which challan has been recommended and the case may go for trial before a
Court of law which will be a proper forum to attend to all these matters in detail in
accordance with the usual procedure. For the present I think I can safely proceed on the
tentative view that the girl is a minor-(according to my view still below 15 years of
age)and it will not be just, proper and fair or in her own interest or welfare morally or
otherwise-(on the type of evidence brought on the present record)to let her remain with
the respondent A. S. I., in this case, because, in case after trial the respondent is found
guilty for an offence under section 363 etc. or if the conversion and marriage are held to
be illegal, invalid, colourable and fake then the damage and harm which may take place
on account of the girl having remained with the respondent would be irretrievable. On the
other hand if the ward remains with her parents who, according to her tentative age for
the present accepted by me, are obviously her legal guardians and in whose custody or
hands even otherwise no harm can come to their own daughter, the interest of justice and
all concerned will be saved if the girl is handed over to them after imposing certain terms
and conditions in the welfare of the ward. However, towards the conclusion of the
arguments the petitioner, the respondent A. S. I. and Mr. Perwaiz Buttar Advocate for the
girl submitted that they bad no objection if the girl is allowed to remain in Darulaman till
the decision of the criminal case reported in an F. I. R. mentioned above though it was
indicated at the bar that the period of custody at that place should be fixed by this Court,
because, if the criminal case is prolonged indefinitely then all concerned will suffer. I
think this request is reasonable and though on my part 1 prepared to act on the principle
contained in section 25 of the Guardians and Wards Act VIII of 1890 and to handover the
ward to the mother-(in the interest and welfare of the ward and her morals till the
respondent A. S. I. established in a proper Court of law his right to have her custody)-but
in view of the joint wishes of all concerned, exercising my powers under subsection (1)
of section 491, Cr. P. C. I direct that the girl should not be handed over to Abdul Hakim
A. S. I. respondent but should remain in Darulaman for a period of six months, during
which time, I hope, that the criminal case will be finalised one way or the other. The
respondent A. S. I. has agreed that he will pay the expenses for the retention of the girl 9n
Darulaman. Let the expenses be borne by him as volunteered. In this respect it is
self-evident that the present order is being passed with the consent of all the parties. The
respondent Abdul Hakim A. S. I. should however, pay costs of Rs. 300 to the petitioner.

8. Since I have directed that Mst. Zarina is to remain in Darulaman only for a period of
six months just as an interim measure within which period I expect the case as mentioned
in the F. I R. shall be finailsed, let a copy of my order be sent to the Inspector -General of
Police to see that the aforesaid matter is not inordinately prolonged and is finalised one
way or the other promptly so that the girl may know as to what is her fate or legal status.

The order has been announced in the presence of Mr. J. A. Perwaiz, Advocate, who is
present with the petitioner and Mr. Perwaiz Buttar, Advocate who is present with the
detenu as her counsel and also in the presence of Abdul Hakim A. S. I. in order to obviate
any doubts. The parties have again agreed to the above order. It has been submitted by the
respondent Abdul Hakim that it should be clarified that he would be in a position to see
the girl twice a week. Similar permission Mr. I. A. Perwaiz, submits, should be granted to
his client, namely, Mst. Bachinoo the mother of the girl. The Darulaman authorities

Page No. 10 of 11
should not prohibit the mother and the A. S. I. Abdul Hakim from seeing the girl twice a
week. The respondent has further submitted that he will pay the necessary expenses in the
Darulaman monthly. Let him do that. The costs have been paid by Abdul Hakim to Mst.
Bachinoo petitioner in Court.

Order accordingly.

Page No. 11 of 11
P L D 1958 (W. P.) Lahore 431

Before A. R. Changez, J

FAROOQ LEIVERS-Plaintiff-Appellant

Versus

ADELAIDE BRIDGET MARY-Defendant-Respondent

Regular Second Appeal No. 163 of 1956, decided on 17th March 1958, from the decree
of the Court of Azam Ali, District Judge, Multan, dated the 9th January 1956.

(a) Muhammadan Law---

Conversion-Person embracing Islam---Becomes amenable to Muslim Law from moment

of his conversion so far as his individual personality is concerned-Conversion brings dory
about complete change as regards right of inheritance.

It cannot be disputed that as soon as a person embraces Islam, he at once becomes subject
to the Muslim personal and religious law and is completely cut off from his past. He
accepts a new epode of life and enters a new domain where his deeds, words and actions
are governed by the laws of his new religion. So far as his individual personality is
concerned, there cannot be any doubt about it that his future in all aspects of his life
becomes amenable to Muslim law, from the moment of his conversion to Islam.

The effect of conversion to Islam brings about a complete change as regards the right of
inheritance. His non-Muslim relations, howsoever near relations they may be are
completely debarred from succeeding to the estate of the convert. Although the act of
conversion is unilateral, but the legal consequences which flow from it directly affect the
rights of others, which but for the conversion, they are entitled to enforce under their own
personal law.

The Advocate-General of Bombay v. Jumbabai and others I L R 41 Bom. 181;

Sundarammal v. Ameenal A I R 1927 Mad. 72 ; Chidambaram Chettyar v. Ma Nyein Me
and others A I R 1928 Rang. 179 and Mitar Sen Singh v. Maqbool Hussain Khan and
others A I R 1930 P C 251 ref.

(b) Muhammadan Law---

Page No. 1 of 18
Marriage -Muslim woman can only marry a Muslim.

Under the Muslim Law, a Muslim woman can only marry a Muslim. She can neither
marry an idolater, nor a Christian nor a Jew, and a marriage contracted with anyone of
those is void.

(c) Muhammadan Law---

Marriage-Conversion-One of spouse embracing Islam-Other spouse refusing to embrace

Islam--Judge must pronounce dissolution of marriage.

When one of the spouses embraces Islam, then on account of the difference of religion,
the ends of marriage are defeated, and therefore, except in the case of a kitabia wife, the
infidel party is called upon to embrace the faith and if he or she refuses to do so, the
Judge must pronounce dissolution of the marriage.

The marriage tie is to be dissolved in the case of unbelievers as soon as one of the
spouses is converted to Islam.

(d) Muhammadan Law---

Conversion-Husband embracing Islam -He can take another wife according-to Shariat.

A right which the husband seems to acquire on his conversion to Islam is that he can take
another wife, although it may be strictly prohibited in accordance with the personal law
which was applicable before his conversion.

John Jiban Chandra Dutta v. Abinash Chandra Sen A I R 1939 Cal. 417 and Emperor v.
Antony I L R 33 Mad. 371 ref.

(e) Muhammadan Law---

Conversion of Hindu or Christian wife to Islam-She cannot marry another person.

In the matter of the petition of Ram Kumari I L R 18 Cal. 264; The Government of
Bombay v. Ganga I L R 4 Born. 330; Crown v. Mst. Ruri 5 P R (Cr.) 1919 : Mst. Nandi v.

Page No. 2 of 18
Crown I L R 1 Lah. 440; Sundari Letani v. Pitambari Letani I L R 32 Cal. 871; Budansa
Rowther v. Fatima Bi 22 I C 697 ; Mst. Ayesha Bibi v. Subodh Chakravarty A I R 1949
Cal. 436 ; Robasa Khanum v. Khodadad Bomanji Irani A I R 1947 Born. 272 and Sayad
Khatoon v. M. Obadiah 49 C W N 745 ref.

(f) Muhammadan Law--

Marriage-Object.

Marriage is a most intimate communion and the mystery of sex finds its highest
fulfilment when intimate spiritual harmony is combined with the physical link. If religion
is at all a real influence in life to both parties or to either party, a difference in this vital
matter must affect the lives of both more profoundly than differences of birth, race,
language, or position in life. It is therefore only right that the parties to be married should
have the same spiritual outlook. If two persons love each other, their outlook in the
highest things of life must be the same. Note that religion is not here a mere label or a
matter of custom or birth. The two persons may have been born in different religions, but
if by their mutual influence, they come to see the truth in the same way, they must openly
accept the same rites and the same social brotherhood. Otherwise the position will
become impossible individually and socially.

(g) Muhammadan Law---

Divorce-Muslim husband subject to limitations and safeguards provided in Holy Quran

can divorce his wife in prescribed form.

The only reasonable inference which can be deduced from the injunctions of the Holy
Quran is that it is immaterial whether the wife is a Muslim or is a believer of any other
revealed Book, the Muslim husband subject to the limitations and safeguards provided in
the Holy Quran is empowered to divorce his wife in the prescribed form.

(h) Muhammadan Law---

Divorce-Muslim husband can divorce his kitabia wife, who had been - married to him
before his conversion.

A Muslim is empowered to divorce his kitabia wife, who had been married to him before
his conversion.

(i) Muslim Personal Law (Shariat) Application Act (XXVI of 1937),

Page No. 3 of 18
S. 2-S. 2 is quite plain and does not admit of any ambiguity.

(j) Interpretation of Statutes---

Duty of Court-Language of section of Act clear and not admitting of any ambiguity-Court
should expound law as it stands even though consequences be absurd.

(k) Constitution of Pakistan, Art. 198---

Existing Laws will remain in force even if they be repugnant to Injunction's of

Islam-Punjab Laws Act (IV of 1872), S. 6.

The language used in Article 198 is clear enough to show that so long as the existing laws
are not brought into conformity with Islamic laws in accordance with this Article, they
will remain in force even if they be repugnant to the Injunctions of Islam as laid down in
the Holy Quran and Sunnah.

(l) Divorce Act (IV of 1869),

S. 7-Christian who married Christian wife cannot divorce her under Shariat after
embracing Islam and talak thus pronounced by him under Muhammadan Law cannot be
recognized as valid under the existing law-Muslim Personal Law (Shariat) Application
Act (XXVI of 1937), S. 2.

On the one hand under the Muslim law, a Christian husband, on his conversion to Islam,
is authorised to give talak to his Christian wife by pronouncing the formula of talak, but
on the other hand, the Courts in Pakistan cannot recognize such a talak in view of the
provisions of the Divorce Act of 1869 and other existing laws. In such a conflict of the
personal law of the parties to the suit, there does not appear to be any justification to
prefer the personal law of the plaintiff to the personal law of the respondent. The essential
function of adjudication is to decide only according to law between the conflicting
claims.

Robert Skinner v. Charlotte Skinner I L R 25 Cal. 537 ; Muncherji Gursetji Khambata v.

Jessie Grant Khambata A I R 1935 Born. 5 and In re: Hammersmith, Superintendent
Registrar of Marriages; Mir Anwaruddin Ex parte (1917) 1 K B 634 ref.

(m) Practice---

Page No. 4 of 18
Points not taken in trial Court-Cannot be allowed to be raised before High Court.

Karam Elahi Chauhan for Appellant.

Muhammad Amin Khan for Respondent.

Dates of hearing: 6th, January 1958, 10th and 24th February 1958.

JUDGMENT

A. R. CHANGEZ, J.---The question of law, which has been raised in this second appeal
is a complicated one and is not free from difficulty. It relates to the consequences of
conversion of a non-Muslim husband to Islam. Its determination will, however, require
the consideration of the larger question involved, namely: What is the effect of
conversion to Islam, upon the character and social status of the person so converted.

2. In order to appreciate the point, it is necessary to say a few salient facts, which fall
within a narrow compass. Mr. Farooq Leivers, plaintiff-appellant, and Adelaide Bridget
Mary, defendant-respondent, are of British nationality. A long time ago, while they were
domiciled in India, they were married in accordance with the Christian rites. At the time
of their marriage, both of them were Christians. After the establishment of Pakistan they
were domiciled in Pakistan. Differences arose between the parties and relations between
the couple became strained. The defendant then applied for judicial separation in the
Court of the District Judge, Multan, and in August, 1951, obtained an order for judicial
separation. The plaintiff was also directed to pay Rs. 130 per month as alimony to the
defendant. About one and 4 half years later, the plaintiff renounced Christianity and
embraced Islam. The plaintiff thereafter asked the defendant to study Islamic religion and
embrace Islam, but she refused, and realising that there was no chance of reconciliation,
he divorced the defendant by pronouncing the Islamic formula of talak, and informed her
about it in April, 1953, by a letter sent per registered post. He then filed this suit in
January, 1954, for a declaration that the defendant had been divorced and was no more
his legally wedded wife and that the order passed by the District Judge, Multan, directing
the plaintiff to pay a monthly alimony of Rs. 130 to the defendant was ineffective and not
binding on the plaintiff. He also prayed for a permanent injunction, restraining the
defendant from claiming and receiving any alimony under the aforesaid order of the
District Judge. The suit was resisted by the defendant on several grounds. But at a later
stage, the plaintiff confined his suit only to a declaration that he had validly given a
divorce to the defendant and the latter confined her plea only to the competency of the
plaintiff to divorce her by pronouncing `talak' in accordance with the Muslim Law. On
the pleadings and the statements of the parties and their counsel, only the following issue
was framed:-

"Whether the plaintiff was competent under the law to give a valid divorce to the
defendant?

Page No. 5 of 18
The trial Court decided this issue against the plaintiff and dismissed the suit. In his appeal
in the Court of the District Judge, he met with no success. He has now come up to this
Court in second appeal; and has challenged the finding of the Courts below on the issue
involved in the case.

3. The learned counsel for the appellant maintained that with his conversion to Islam, the
appellant acquired a new social status, and in the matter of divorce of his Christian wife,
he was governed by the Muslim law, and not by the Christian law under which the two
spouses had been married. The point raised has not so far been the subject of an express
decision by any of the High Courts of India and Pakistan. Accordingly, it shall have to be
determined on principle and to this task I now proceed to devote myself.

4. Before I take up the question which is directly involved in this appeal, I think it is
desirable to consider generally the effect of conversion to Islam upon the character and
status of the person so converted. The learned counsel for the appellant argued that on
conversion to Islam, the convert renounces all his religious and personal laws and
immediately adopts the Muslim religious and personal laws. In support of his contention
he relied on The Advocate-General of Bombay v. Jumbabai and others (I L R 41 Bom.
181) where the question arose whether Cutchi Memons on their conversion to Islam,
continued to be governed by their original personal law. Mr. Justice Beaman, while
dealing with this aspect of the matter, observed as follows:-

"On conversion to Mohammedanism, converts, no matter what their previous religion

may have been, must be taken at that moment to have renounced all their former religious
and personal law in so far as the latter flowed from and was inextricably bound up with
their religion, and to have substituted for it the religion of Mohammad with so much of
the personal law as necessarily flows from that religion. Thus, when the Khojas and the
Cutchi Memons were converted, I take it to be an universally true proposition that, in the
eye of the law, they then became subject, in every respect, to the Mohammedan and not
to the Hindu law. "Whatever may have happened later, there was at the time a break, a
new starting point, from which all their legal relations must be re-adjusted."

It cannot be disputed that as soon as a person embraces Islam, he at once becomes subject
to the Muslim personal and religious law and is completely cut off from his past. He
accepts a new mode of life and enters a new domain where his deeds, words and actions
are governed by the laws of his new religion. So far as his individual personality is
concerned, there cannot be any doubt about it that his future in all aspects of his life
becomes amenable to Muslim law, from the moment of his conversion to Islam.

5. The more difficult question, however, is what is the effect of conversion upon other
persons who hate some rights vested in them because of the character and status of the
non Muslim and his religious and personal laws, before conversion. Some authority is
available on the question of inheritance to the property of such a convert. It may be useful
to refer to some of these cases at this stage. In Sundarammal v. Ameenal (A I R 1927
Mad. 72) it was held by the Madras High Court that the Hind daughter of the convert to
Islam could not inherit his estate because no Hindu can inherit from a Muhammadan
except in accordance with the provisions of Act XXI of 1850, which Act did not apply in
that case. This decision was approved and followed in Chidambaram Chettyar v. Ma
Nyein Me and others (A I R 1928 Rang. 179) where it was held by a Division Bench of
the Rangoon High Court that a Hindu widow of a Hindu who has renounced the Hindu

Page No. 6 of 18
religion and become a Mohammedan cannot inherit the estate of her Mohammedan
husband. This point appears to have been set at rest by the decision of the Judicial
Committee in Mitar Sen Singh v. Maqbool Hussain Khan and others (AIR 1930 P C 251)
where their Lordships, after reviewing some authorities on the point and after duly
considering section 1 of Caste Disabilities Removal Act XXI of 1850, held that when
once a person has changed his religion and changed his personal law, that law will govern
the rights of succession of his children. Their Lordships further observed as follows:

"It may of course work hard to some extent upon expectant heirs, especially if the
expectant heirs are the children and perhaps the unconverted children of the ancestor who
does in fact change his religion, but after all it inflicts no more hardship in their case, than
in any other case where the ancestor has changed the law of succession, as for instance by
acquiring a different domicile and their Lordships do not find it necessary to consider any
question of hardship that may arise."

This view finds further support from Amir Ali's Muhammadan Law. In Volume II of its
5th Edition, in section 11 of Chapter III, are enumerated several causes, which under the
Musulman Laws, debar a person from succeeding to the estate of the propositus,
notwithstanding that he may stand to the deceased in the relation of an inheriting
kinsman. At page 88, it is stated as follows:-

"Consequently, those who profess a different faith from Islam have no -title to the
inheritance of a deceased Musulman. So that if a Musulman die leaving behind him an
heir who does not profess the Islamic faith, he is debarred from inheriting, even though
he be nearest to the deceased. For example, if a man die leaving behind him a son who is
a non-Moslem, and a grandson who is a Moslem, the son would be evicted from the
succession, and the grandson would take the inheritance to the absolute exclusion of his
father."

At page 90, it is stated on the authority of Fatwai Alamgiri Volume VI, page 631, that
under the Sunni Law a Moslem does not inherit from a non-Moslem, nor does a
non-Moslem inherit from a Moslem.

Article 125 of Institutes of Mussalman Law by Nawab Abdur Rahman, lays down that
difference of religion deprives the husband of all right to inherit his wife's estate, and the
wife of all right to inherit her husband's estate.'

It will thus be seen that the effect of conversion to Islam brings about a complete change
as regards the right of inheritance. His non-Moslem relations, howsoever near relations
they may be are completely debarred from succeeding to the estate of the convert.
Although the act of conversion is unilateral, but the legal consequences which flow from
it directly affect the rights of others, which but for the conversion, they are entitled to
enforce under their own personal law.

6. Let us now consider the effect of conversion to Islam upon pre-conversion marriages.
In Chapter V of Book II of `Hedaya' (Second Edition) it is laid down that the marriage of
an infidel couple is not dissolved by their jointly embracing the Moslem faith, unless it be
a marriage within the prohibited degrees, but if one of them only be converted, a

Page No. 7 of 18
separation takes place. The conversion of the husband of a kitabia however, does not
occasion separation. Article 126 of Institutes of Mussalman Law (by Nawab Abdur
Rahman) provides that where the wife of a non-Moslem embraces Islam, that faith must
be presented to the husband and if he refuses, the Judge shall pronounce the dissolution
of the marriage. Under the Muslim Law, a Muslim woman can only marry a Moslem. She
can neither marry an idolater, nor a Christian nor a Jew, and marriage contracted with
anyone of those is void.

The principle which emerges from the above is that when one of the spouses embraces
Islam, then on account of the difference of religion, the ends of marriage are defeated,
and therefore, except in the case of a kitabia wife, the infidel party is called upon to
embrace the faith and if he or she refuses to do so, the Judge must pronounce the
dissolution of the marriage.

7. Another right which the husband seems to acquire on his conversion to Islam is that he
can take another wife, although it may be strictly prohibited in accordance with the
personal law which was applicable before his conversion. In John Jiban Chandra Dutta v.
Abinash Chandra Sen (A I R 1939 Cal. 417), it was held by a Division Bench of the
Calcutta High Court that where a Christian embraces Islam, he acquires all the rights
which a Mohammedan possesses and can contract a valid marriage even though the first
one with the Christian wife subsists. In Emperor v. Antony (I L R 33 Mad. 371) which
was a case of Christian convert to Hinduism, it was held by Abdur Rahim J. that such a
person having married a Hindu woman during the lifetime of his Christian wife was not
guilty of bigamy.

8. But in the case of conversion of a Hindu or a Christian wife to Islam, there appears to
be consensus of judicial opinion, that if such a wife marries another person she is guilty
of bigamy.

It was so held in the following cases:-

In the matter of the petition of Ram Kumari (I L R 18 Cal. 264), The Government of
Bombay v. Ganga (I L R 4 Bom. 330), Crown v. Mst, Ruri (5 P R (Cr.) 1919), and Mst.
Nandi v. Crown (I L R 1 Lah. 440).

The principle that a marriage is not dissolved by the conversion of a Hindu wife to Islam
is also enunciated in Sundari Letani v. Pitambari Letani (I L R 32 Cal. 871) and Budansa
Rowther v. Fatima Bi (22 1 C 697). But this point has been very ably dealt with by
Ormond J. in Mst. Ayesha Bibi v. Subodh Chakravarty (A I R 1949 Cal. 436). In that
case, the plaintiff Mst. Ayesha Bibi had asked for a declaration that her marriage with the
defendant which had been performed in accordance with the Hindu rites, had been
dissolved on her conversion to Islam. At the time of their marriage, both were Hindu
Brahmins. Although the suit was undefended, yet the learned Judge, in view of the
importance of the points involved, sought the assistance of the Advocate-General and
another well known Hindu Advocate as amicus-curiae' and after exhaustively dealing
with the questions raised, held that under Muslim Law in India, after the conversion of
the wife to Islam the dissolution of marriage will follow automatically without the
necessity for any presentment of Islam to the husband by either the kazi or any Judge
after the expiry of the fixed period, being either wife's three menstrual periods or
alternatively in certain circumstances three months and to any event after whichever

Page No. 8 of 18
period of time is longer, unless the husband has before the expiration of that period
adopted Muslim faith. This decision was, however, dissented from by Lodge J., in Sayad
Khatoon v. M. Obadiah (49 C W N 745). The learned Judge held that India was not a
Muhammad country and the Muhammadan Law was not the law of the land. He further
observed that he could find no authority for the view that a marriage solemnized
according to one personal law could be dissolved according to another personal law
simply because one of the two parties had changed his or her religion. He held that it
could not be just and right to grant a declaration of dissolution of marriage on the ground
of conversion to Islam of one of the parties to the marriage. This view of Lodge J. was
upheld and followed by a Division Bench of the Bombay High Court in Robasa Khanum
v. Khodadad Bomanji Irani (A I R 1947 Bom. 272). As this point is not directly involved
in the appeal before me, I refrain from expressing any opinion on it.

9. The grave issue raised in this appeal is whether the plaintiff, on his conversion to
Islam, was competent to divorce his Christian wife by pronouncing the formula of talak
as provided by Muslim Law. Before dealing with the question whether he was competent
to do so or not, it seems necessary to find out the correct position of Muslim Law on the
point involved. As regards the marriage of a Muslim with an unbeliever, the Holy Quran
in Sura II (Baqara), Ayat 221, lays down the following injunction. The translation of this
Ayat by Abdullah Yusuf Ali is reproduced below:-

"Do not marry

Unbelieving women (idolaters)

Until they believe;

A slave woman who believes

Is better than an unbelieving woman.

Even though she allure you.

Nor marry (Your girls)

To unbelievers until

They believe;

A man slave who believes

Is better than an unbeliever,

Even though he allure you.

Unbelievers do (but)

Beckon you to the Fire.

But God beckons by His Grace

To the Garden (of Bliss)

And forgiveness,

And makes His Signs

Clear to mankind;

Page No. 9 of 18
Celebrate His praise."

In order to explain the object of a Muslim marriage, I think I can do no better than to
quote the commentary by Abdullah Yusuf Ali on this Ayat. It says:

"Marriage is a most intimate communion, and the mystery of sex finds its highest
fulfilment when intimate spiritual harmony is combined with the physical link. If religion
is at all a real, influence in life to both parties or to either party, a difference in this vital
matter must affect the lives of both more profoundly than differences of birth, race,
language, or position in life. It is therefore, only right that the parties to be married should
have the same spiritual outlook. If two persons love each other, their outlook in the
highest things of life must be the same. Note that religion is not here a mere label or
matter of custom or birth. The two persons may have been born in different religions, but
if by their mutual influence, they come to see the truth in the same way, they must openly
accept the same rites and the same social brotherhood. Otherwise the position will
become impossible individually and socially."

As regards the right to dissolve the marriage performed before conversion to Islam, the
Holy Quran provides in Ayat 10 of Sura LX (Mumtahana) as follows:-

Its translation by Abdullah Yusuf Ali is as follows:-

"O ye who believe;

When there come to you

Believing women refugees,

Examine (and test) them

God knows best as to

Their Faith: if ye ascertain that they are Believers,

Then send them not back.

To the Unbelievers.

They are not lawful (wives)

For the Unbelievers, nor are

The (Unbelievers) lawful (husbands)

For them. But pay

The Unbelievers what they

Have spent (on their dower).

And there will be no blame

Page No. 10 of 18
On you if ye marry them

On payment of their dower

To them. But hold not

To the guardianship of

Unbelieving women: ask

For what ye have spent

On their dowers, and let

The (Unbelievers) ask for

What they have spent

(On the dowers of Women

Who come over to you).

Such is the command

Of God: He Judges

(With Justice) between you

And God is Full of

Knowledge and Wisdom."

The most important words of this Ayat which are relevant for our purpose are the
following

Abdullah Yusuf Ali has translated these words as follows: "But hold not to the
guardianship of unbelieving women," while Maulvi Muhammad Ali has translated them
as follows: "And hold not to the ties of marriage of unbelieving women." Abdullah Yusuf
Ali in his commentary on this part of the Ayat says.

"Unbelieving women in a Muslim society would only be a clog and a handicap. There
would be neither happiness for them, nor could they conduce in any way to a healthy life
of the society in which they lived as aliens. They were to be sent away, as their marriage
was held to be dissolved; and the dowers paid to them were to be demanded from the
guardians to whom they were sent back, just as in the contrary case the dowers of
believing women were to be paid back to their Pagan ex-husbands."

Similarly, Maulvi Muhammad Ali in his commentary says:

Page No. 11 of 18
"The state of permanent warfare maintained between the Muslims and the unbelievers did
not allow of any social relationships to be established between the two parties ; hence the
marriage relationships between Muslim men and unbelieving women as well as those
between the Muslim women and the unbelieving men could no longer be maintained ;
each party having returned the dowry, divorce, ipso facto, automatically resulted."

It is, therefore, clear from the above injunctions of the Holy Quran, that the marriage tie
is to be dissolved in the case of unbelievers as soon as one of the spouses is converted to
Islam? Such instances are available from the life of Hazrat Umar Razi Allah Anha. In
Alfarooq by Maulanan Shibli Nomani (1924 Edition) the cases of Karebta and Malekta
are given at page 323, who were the wives of Hazrat Umar, before his conversion to
Islam, and as they did not embrace Islam, both of them were divorced by Hazrat Umar.
Similar instances are noted at page 259 of Hazins Tafsirul Quran, and at page 29 of Book
11 of Tarikhul-Uman-al-Islamia.

10. As regards the marriage of a Muslim with a woman whose religion is based on a
revealed Book, the Holy Quran in Sura V, Ayat, 6, provides as follows

(Translation by Abdullah Yusuf Ali):-

"Lawful unto you in marriage are (not only) chaste women who are believers, but chaste
women among the people of the Book revealed before your time." .

This choice is, however, not given to Muslim women.

The question, therefore, arises as to what is the effect of conversion on the earlier
marriage of the convert with a Kitabia woman. The marriage is permissible under the
Muslim law, and there is nothing either in the Holy Quran or in the Fiqah to suggest that
such a marriage does not continue after conversion. In `Hedaya', at page 65 it is stated
that the conversion of the husband of a kitabia does not occasion separation, because the
marriage of a Mussalman with a kitabia being legal ab initio, its continuance is so a
fortiori.' Article 127 of Institutes of Mussalman Law (by Nawab Abdur Rahman) lays
down that `where the husband of a Christian or Jewish wife turns Muslim the marriage
cannot be dissolved.' In the light of the above, it will thus be seen that in the instant case
the respondent continued to be the wife of the plaintiff in spite of his conversion to Islam.

11. The next question as to whether he could have legally divorced her in accordance
with the Muslim law, is not easy to solve, for it is exactly here that we enter wholly
untrodden ground. There is no direct authority bearing on this point. The power to give
talak is embodied in Ayats 222 to 241 of Sura Baqara and in Sura LXV of the Holy
Quran. The injunctions of the Holy Quran do not make any distinction in the matter of
divorce so far as the faith of the wife is concerned. Therefore, the only reason-i able
inference which can be deduced from the injunctions of the Holy Quran is that it is
immaterial whether the wife is a Muslim or is a believer of any other revealed Book, the
Muslim husband subject to the limitations and safeguards provided in the Holy Quran is
empowered to divorce his wife in the prescribed form. Article 223 of Institutes of
Mussalman Law provides that "repudiation can be validly directed against any woman
who is married, or who is observing iddat, consequent upon a revocable repudiation or an

Page No. 12 of 18
irrevocable repudiation not final, or who is observing iddat consequent upon a separation
amounting to repudiation, such as the separation pronounced in consequence of a vow of
continuance, the separation pronounced in consequence of the husband's impotency, or a
separation brought about by the refusal of one of the parties to embrace the religion of
Islam."

12. Having regard to these injunctions of the Holy Quran, I am inclined to hold that a
Muslim is empowered to divorce his kitabia wife, who had been married to him before
his conversion. 1f this had not been the intention of the Muslim law, the converts to Islam
in its initial stages would have faced insurmountable difficulties. For example, if a person
had two or more kitabia wives, then on his conversion to Islam, if some of the wives were
within the prohibited, degrees as ordained by Ayats 22 to 24 of Sura Nisaa (IV) of the
Holy Quran, then they would have continued to remain as wives of the convert, which
would have been in direct violation of the commands of God. Similarly, if a person had
more than four kitabia wives, the same difficulty would have arisen. I have, therefore, no
doubt in my mind that a Muslim convert is empowered under the Muslim law to divorce
his kitabia wife whom he had married before his conversion.

13. The next question which requires determination is whether the plaintiff as a citizen of
Pakistan was entitled to avail of the provisions of Muslim law referred to above, in
divorcing his Christian wife. As a question of pure Muslim law, the position that emerges
is that he is authorised to divorce. But it remains to be decided, whether the case in hand
is really governed by the provisions of Muslim law. If Muslim law was to be
administered in this case, then in the view which I have taken about the matter, the case
would not have presented any difficulty whatsoever. But the difficulty arises because the
plaintiff is a Moslem and the defendant is a Christian and, according to her personal law,
her marriage tie is indissoluble until death or divorce obtained in accordance with the
provisions of the Divorce Act IV of 1869. There is no statutory enactment governing such
a contingency. Section 2 of the Muslim Personal Law (Shariat) Application Act XXVI of
1937 provides that the rule of decision in the various cases enumerated therein, which
include marriage, divorce and dissolution of marriage shall be the Muslim Personal Law
where the parties are Muslims. It does not lay down that the Muslim Personal Law shall
also apply when one of the parties is a Muslim. To the same effect is section 2 of the West
Punjab Muslim Personal Law (Shariat) Application Act IX of 1948 as amended up to
date. This section also applies when the parties are Muslims. Obviously, it has no
application when one of the parties is a non-Muslim. The learned counsel for the
appellant contended that it would work great hardship and create difficulties if it was held
that section 2 of the aforesaid enactments is applicable only when the parties to the case
are Muslims. He illustrated his point by posing the question that if one of the sons of a
Muslim embraces Christianity, or the wife is converted to Hinduism, or a gift or will is
made of some property in favour of a non-Muslim, and a dispute arises in respect of these
matters, then what will be the rule of decision? He argued that if section 2 were not to
govern such cases it will result in anomalous positions. This contention is not without
force. But the language used in the section 2 is quite plain and does not admit of any
ambiguity. In these circumstances, the duty of the Court is to expound the law ash it
stands even though the consequences be absurd. In a case of this nature, the rule of
interpretation of statutes embodied in "absolute sententia expositore non-indiget" shall
apply.

I am, therefore, of the view that the application of section 2 of the aforesaid enactments is
confined to cases where the parties are Muslims and not otherwise. In the cases referred
to by the learned counsel for the appellant different considerations would apply, although
it is very likely that the result would be the same as if section 2 had been applied. The
only other provisions of law which deal with such a question are sections 5 and 6 of the
Punjab Laws Act, 1872. Section 5 provides, that in matters specified therein which also
include marriage and divorce, the rule of decision shall be any custom applicable to the

Page No. 13 of 18
parties concerned, and the Muhammadan or Hindu Law, in cases where the parties are
Mohammedans and Hindus respectively. This, for obvious reasons, has no application
because both the parties are not Muslims. Section 6, however, lays down that in cases not
otherwise specially provided for, the Judges shall decide according to justice, equity and
good conscience.

In my opinion, this is the only provision of law which seems to govern the instant case. I
have, therefore, no hesitation in holding that this case shall have to be decided in
accordance with the principles laid down in section 6 of the Punjab Laws Act. It is true
that with the establishment of Pakistan, the Muslims of Pakistan were expected to order
their lives in accordance with the teachings and requirements of Islam, as set out in the
Holy Quran and Sunnah, but it is to be regretted that although more than ten years have
passed yet so far not even a beginning has been made to bring the existing laws into
conformity with the Islamic Laws. Before the Constitution came into force, Pakistan in
spite of being styled as an Islamic country was being governed by the Government of
India Act, 1935, as amended by the Independence Act 1947. The existing laws which
were in force at the time of the establishment of Pakistan, continued to operate as before.
But even after the enforcement of the Constitution, the position has not changed. Article
224 of the Constitution provides for the continuance of the existing law subject to the
adaptations made in accordance with that Article. Under Article 4 of the Constitution,
however, such existing laws which were inconsistent with the fundamental rights
provided in Part II of the Constitution, were declared void to the extent of the
inconsistency. The Constitution of the Islamic Republic of Pakistan did not declare that
the existing laws repugnant to the injunctions of Islam were also void to the extent of the
repugnancy. It was nowhere provided in the Constitution that Pakistan being an Islamic
country ,the Muslim religious and personal laws shall immediately become operative.
The relevant Article in this connection is Article 198, which is in these terms:-

"Provisions relating to the Holy Quran and Sunnah.-(1),No law shall be enacted which is
repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah,
hereinafter referred to as Injunctions of Islam, and existing law shall be brought into
conformity with such Injunctions.

(2) Effect shall be given to the provisions of clause (1) only in the manner provided in
clause (3).

(3) Within one year of the Constitution Day, the President shall appoint a Commission

(a) to make recommendations-

(i) as to the measures for bringing existing law into conformity with the Injunctions of
Islam, and

(ii) as to the stages by which such measures should be brought into effect ; and

Page No. 14 of 18
(b) to compile in a suitable form, for the guidance of the National and Provincial
Assemblies, such injunctions of Islam as can be given legislative effect.

The Commission shall submit its final report within five years of its appointment, and
may submit any interim report earlier. The report, whether interim or final, shall be laid
before the National Assembly within six months of its receipt, and the Assembly after
considering the report shall enact laws in respect thereof.

(4) Nothing in this Article shall affect the personal laws and non-Muslim citizens, or their
status as citizens, or any provision of the Constitution.

Explanation.---In the application of this Article to the personal law of any Muslim sect,
the expression `Quran and Sunnah' shall mean the Quran and Sunnah as interpreted by
that sect."

The language used in this Article is clear enough to show that so long as the existing laws
are not brought into conformity with Islamic laws in accordance with this Article, they
will remain in force even if they be repugnant to the Injunctions of Islam as laid down in
the Holy Quran and Sunnah. A glaring example of such a repugnancy is provided by
section 4 of the Dissolution of Muslim Marriages Act VIII of 1939, which provides that
the renunciation of Islam by a married Muslim woman or her conversion to a faith other
than Islam shall not by itself operate to dissolve her marriage, although there can be no
two opinions about it that under the Muslim law, apostacy from Islam of either party to a
marriage operates as a complete and immediate dissolution of marriage. It will thus be
seen that the existing laws which were in operation on the day when the Constitution
came into force, are still in force. The present case, therefore, shall have to be decided in
the light of the provisions of the existing laws. I have already hold that the case is
governed by section 6 of the Punjab Laws Act.

14. But before determining the question in the light of section 6 of the Punjab Laws Act,
it seems necessary to consider an important question raised on behalf of the respondent. It
was urged by the learned counsel for the respondent, that the marriage having been
solemnized in accordance with Christian rites, it was a union for life of one man to one
woman to the exclusion of all others, and it being not a Muslim marriage, it could not be
terminated by the husband on his conversion to Islam by pronouncing the Muslim
formula of talak. This point, though not directly in issue, arose incidentally in Robert
Skinner v. Charlotte Skinner (I L R 25 Cal. 537), where their Lordships of the Privy
Council observed as follows:-

"Whether a change of religion, made honestly after "marriage with the assent of both
spouses, without any intent to commit a fraud upon the law, will have the effect of
altering rights incidental to the marriage, such as that of divorce, is a question of
importance, and it may be of nicety." As the point was not directly involved, their
Lordships did not examine this question and did not give any decision on it. In Muncherji
Gursatji Khambata v. Jessie Grant Khamhata (A I R 1935 Bom. 5), a Division Bench of
the Bombay High Court dealt with the question whether the husband (who was a Muslim
in that case), could have divorced his wife by talak while she remained a Christian. Even
in that case the point was not directly involved, because the wife had also embraced Islam
long before she was divorced by the Muslim husband. The discussion of the question,

Page No. 15 of 18
however, is very instructive. The answer was, of course, given, in the negative.
Blackwell, J. after taking into consideration some authorities, observed as follows:-

"These cases show that in India, personal status, rights and obligations, and questions of
succession and inheritance, are frequently governed by religious creed, and that they may
be affected by a change of religion as they might be affected by a change of domicile. It
has been argued for the appellant that the status imposed by operation of law upon
persons who marry in Christian form cannot be altered by the voluntary act of the parties.
But, if a change of domicile, which is a voluntary act, may result in a change of status by
reason of the application of a different system of law, it is difficult to gee why a change of
religion, the domicile remaining unchanged, may not also result in a change of status, if
the law to be applied is then different by reason of the difference of religion. It is said for
the appellant that as this question arises in a divorce suit brought under the Indian
Divorce Act of 1869, and section 7 of that Act enjoins the Court to; act and give relief on
principles and rules which, in the opinion of the said Courts, are, as nearly as may be,
conformable to the principles and rule on which the Court for Divorce and Matrimonial
Causes in England for the time being acts and gives relief. The Court here ought to refuse
to recognize the divorce by talak, as that would not be recognized by the Divorce Court
in England. But, in considering in a divorce suit in India the question whether a previous
marriage of one of the parties is or is not still subsisting, it seems to me that the Court
must apply the law in India applicable to that marriage at the time when that question
arises. There is, I think, no doubt that a Mohammedan could divorce a kitabia by talak
under Muhammadan law. In Ameer Ali's Muhammadan Law, 5th Edition Volume 2 at
page 393, the following passage occurs

`But a Moslem can enter into a valid contract of marriage with a woman following any of
the scriptural faiths. All the legal consequences (save as regards the right of inheritance,
the reason for which is to be found in another principle) which flow from a union
between two Islamists, arise out of such marriage. Suppose, then, a Mussalman wife
abandons Islam and embraces Judaism or Christianity, there is no inherent vice in the
continuance of the contract as a valid contract. It is only as a State offence that the-
ecclesiastical law pronounces against her a forfeiture of civil rights. But when that law is
unenforceable, the union remains as valid as it would be were the wife a Jew or a
Christian at the time of marriage.'

Again, at page 499 of the same volume, in dealing, with the question of talak, it is said:

`The iddat of a free woman, Moslem or kitabia, is three full terms, but of one who is too
young or too old three months, counted by days; in other words, ninety days'.

I think it is clear from these passages that in the opinion of the author a Mohammedan
could divorce a kitabia by talak. It may well be that the husband's right of pronouncing
talak against a Christian wife was taken away when the principles upon which the Courts
in England would act, became applicable in India to a Christian wife, but if a Christian
wife renounces Christanity by adopting another religion, as the petitioner did in this case,
those grounds and that procedure cease to apply as between her and her Mohammedan
husband, and I can see no reason why his personal law should not then apply to the
marriage".

Page No. 16 of 18
15. It cannot be denied that the Divorce Act of 1869 is in full force in Pakistan and
section 7 of that Act enjoins the Court to give relief on principles as nearly as may be
conformable to the principles on which the Court for Divorce and Matrimonial Causes in
England for the time being acts and gives relief. In Re: Hammarsmith, Superintendent
Registrar of Marriages; Mir Anwaruddin Ex parte ((1917) 1 K B 634), their Lordships of
the King's Bench Division refused to recognize talak given by a Muslim husband to his
Christian wife. In this view of the matter, no Court in pre-partition India would have
recognized such a talak. And as no change has been brought about so far in the existing
laws of Pakistan the position appears to have remained the same even after Partition. The
question of domicile does not present any difficulty in this case. At the time of their
marriage, the parties were domiciled in India, but since the Partition, they are domiciled
in Pakistan. And the law as it stands in both the countries does not make any difference as
regards the questions involved in this appeal. It, therefore, follows that in view of section
7 of the Divorce Act, and the existing laws, which are at present enforceable, no Court
will recognize such a talak even in the Islamic Republic of Pakistan.

16. In the light of all that has now been said, the position that emerges is that on the one
hand under the Muslim law, a Christian husband, on his conversion to Islam, is
authorised to give talak to his Christian wife by pronouncing the formula of talak, but on
the other hand, the Courts in Pakistan cannot recognize such a talak in view of the
provisions of the Divorce Act of 1869 and other existing laws. In such a conflict of the
personal law of the parties to the suit, there does not appear to be any justification to
prefer the personal law of the plaintiff than to the personal law of the respondent. The
essential function of adjudication is to decide only according to law between the
conflicting claims.

17. It now remains to be considered whether the appellant is entitled to any relief by
application of the principles of justice, equity and good conscience, as provided by
section 6 of the Punjab Laws Act, to the facts of the present case. In Ayesha Bibi v.
Subodh Chakarvarty, Ormond, J. applied Muhammadan Law as being in conformity with
justice and right for the dissolution of the marriage between the Hindu wife who had
embraced Islam and her Hindu husband. This view, however, did not find favour with
Lodge, J. of the same High Court in Sayed Khatoon v. M. Obadiah and was later
dissented from by a Division Bench of the Bombay High Court in Robasa Khanum v.
Khodadad Bomanji Irani.,

18. In the present case, the respondent had obtained an order of judicial separation from
the District Judge, Multan, and the plaintiff had been directed to pay Rs. 130 per month
as alimony, long before he had embraced Islam. The counsel for the respondent
vehemently argued that the conversion of the plaintiff to Islam was not bona fide, and
that he had embraced Islam fraudulently to take advantage of the provisions of talak and
thus to get rid of the alimony order. These points were not raised before the trial Court
and no evidence was adduced by the parties on these matters. I am, therefore, not
prepared to go into p these questions at such a late stage. However, the fact remains that
in accordance with the law applicable to the parties at the relevant time the respondent
was granted an order for judicial separation and the plaintiff was directed to pay alimony
to her at the rate of Rs. 130 per month. Since this order was passed, the right to realise
this amount from the plaintiff vests in her. If the decree were to be granted to the plaintiff
in the present case, it is likely to affect her vested right. As the marriage of a Muslim with
a kitabia woman is permissible under the Muslim law, the difference in religion is no
ground for recognizing the talak. At the hearing of this appeal, I was given I,to
understand that the respondent is an old lady of about 60 years of age.

Page No. 17 of 18
19. I have given this case a very earnest and prolonged consideration, because the
questions involved are of unusual importance and delicacy. And having regard to all the
circumstances of the case, I have arrived at the conclusion that it will be against the
dictates of justice, equity and good conscience to grant a decree to the plaintiff in terms of
the relief sought for. I might as well add here the memorable words of the Holy Prophet:
"Of all the things which have been permitted to man, divorce is the most hated by Allah".

20. For the aforesaid reasons, I would dismiss this appeal with costs.

K. M. A. Appeal dismissed.

Page No. 18 of 18
P L D 1952 Azad J. & K. 32

Before Abdul Majid, C J

SYED FAIZ ALI SHAH and another-Appellants

versus

GHULAM ABBAS SHAH ETC.-Respondents

Appeal No. 26 of 1951, decided on 28th June, 1952, against the order of District Judge,
Mirpur, dated the 24th November, 1951.

(a) Res-judicata------

--------Plaintiffs declared illegitimate in, former suit between them and heirs of their
father-Question of legitimacy not res-judicata in subsequent suit between plaintiffs and
alienees of property from widow of one of such heirs Legitimacy, question of law.

It was admitted on both sides that the alienee from the widow of a son of the plaintiff's
father were not parties to the previous suits in which the plaintiffs were declared
illegitimate and that they did not acquire any right on the basis of the former judgments
between the plaintiffs and the other descendants of their father:

Held, that as the alienees did not acquire any rights under the former judgments the
question of their correctness could be gone into by this Court for finding out whether
these judgments gave an erroneous decision on a question of law and consequently these
should not operate as res-judicata so far as the legitimacy of plaintiff-appellants is
concerned.

Chairman Chingleput Municipality v. Murugesa Madaliar and others A I R 1933 Mad.

59 ; Mangalathammal v. Narayan Swami Aiyar 30 Mad. 461 and Basaratulla Mean v.
Reazuddin Mean A I R 1926 Cal. 773 ref.

(b) British India not Dar-ul-Islam.

Mst. Nandi alias Zainab v. The Crown I L R 1 Lah. 440 dissent.

Page No. 1 of 6
(c) Muhammadan Law------

-----Conversion-Marriage of Hindu married woman converted to Islam in British India

deemed dissolved on completion of her "three terms'-"

As British India had to be treated as a Foreign country the marriage of a Hindu married
woman on her conversion in British India to Islam according to Muhammadan Law
should be regarded as dissolved without any decree or order of the judge on the
completion of three of "her terms".

In the matter of Ram Kumari I L R 18 Cal. 264 ; Mst. Nandi alias Zainab v. The Crown I
L R 1 Lah. 440 dissent.

Inder Singh v. Thakur Singh I L R 2 Lah. 207 ; Jamna Devi v. Mul Rai 49 P R of 1907; In
the matter of Thakur Bhagwan Das Harjiwan I L R 4 Bom. 330 mentioned.

Muhammad Sharif, for Appellants.

Fazal Din Bhatti, for Respondents.

JUDJMENT

(Pedigree Table-Omitted).

ABDUL MAJID, C. J.-Baqar Shah married two wives namely Mst. Said Begum and Mst.
Madad Bi. Mst. Said Begum was a Mussalman before her marriage with Baqar Shah.
Mst. Madad Bi was Hindu by religion and had embraced Islam before her marriage with
Baqar Shah. At the time of Mst. Madad Bi's marriage with Baqar Shah, her Hindu
husband was living. Baqar Shah got children from both his wives. The plaintiffs Faiz Ali
Shah and Hafiz Shah are sons of Baqar Shah from Mst. Madad Bi. The defendants in the
case are the offspring of Baqar Shah from Mst. Said Begum. After the death of Baqar
Shah litigation started between his sons from two wives regarding property left by him.
In that litigation, it was ruled that the plaintiffs Faiz Ali Shah and Hafiz Shah were not the
legitimate sons of Baqar Shah, but they got some property by way of compromise with
the other descendants of Baqar Shah. In this case, the plaintiffs sought a declaration that
certain alienations of property made by Mst. Karam Noor widow of Muzaffar Shah were
not valid as she was entitled to 1/8th share of the property in the possession of her
deceased husband and the alienations made by her exceeded that share. The suit was
contested on several grounds. A preliminary issue was raised whether the present suit was
res-judicata or not. It was decided by both the Courts below that the plaintiffs were not
entitled to maintain the suit because they were not legitimate sons of Baqar Shah, as held
in previous judgments, between them and other descendants of Baqar Shah. The plaintiffs
have now come up to this Court by way of second appeal.

Page No. 2 of 6
It is admitted on both sides that the alienees from Mst. Karam Noor were not parties to
the previous suits and that they did not acquire any right on the basis of the former
judgments between the plaintiffs and the other descendants of Baqar Shah. It is contended
by the learned counsel for the plaintiff appellants on the strength of Chairman Chingleput
Municipalitv v. Murugesa Mudaliar and others A I R 1933 Mad. 59 ; Mangalathammal v.
Narayanswami Aiyar 30 Mad. 461 and Basaratulla Mean v. Reazuddin Mean A I R 1926
Cal. 773, that an erroneous decision on a question of law in the previous suit cannot be a
bar in a subsequent suit even between the same parties and a different decision may be
given on that question but the decision so given should not in any way affect the
operation of the former decree or take away any rights acquired by the parties thereunder.
Against this proposition of law, no authority has been quoted by the respondent's counsel.
As the alienees did not acquire any rights under the former judgments hence the question
of their correctness can be gone into by this Court for finding out whether these
judgments gave an erroneous decision on a question of law and consequently these
should not operate as a res-judicata so far as the legitimacy of plaintiff-appellants is
concerned. I, therefore, proceed to consider whether the judgment given in the previous
suits declaring that the plaintiff appellants were not the legitimate sons of Baqar Shah
were erroneous in law or not. If these are correct decisions, then certainly they will
operate as res-judicata in the present case and if not then they will have no effect on the
claim of the plaintiff appellants that they are the legitimate sons of Baqar Shah. The
question, whether the plaintiff appellants are entitled to maintain a declaratory suit with
regard to the alienations made by Mst. Karam Noor otherwise will, however, remain
open.

All the previous judgments by which, it was held that the plaintiff-appellants were not the
legitimate sons of Baqar Shah were based on cases reported as Mst. Nandi alias Zainab v.
The Crown I L R 1 Lah. 440; Inder Singh v Thakur Singh I L R 2 Lah. 207 ; Jamna Devi
v. Mul Rai - 49 P R of 1907 ; In the matter of Ram Kumari I L R 18 Cal. 264 and In the
matter of Thakur Bhagwan Das Harjiwan I L R 4. Bom. 330. In all these cases, it was
held that a marriage between Hindus is not dissolved by one of the parties thereto
embracing Islam, the matrimonial bond being regarded by the Hindu Law as indissoluble
and this being the case the marriage between Hindu married woman embracing Islam and
a Mussalman is not valid because previous marriage of the Hindu woman was not
dissolved by her conversion and the Muhammadan Law did not allow plurality of
husbands at one and the same time. In all these decisions, the view adopted was that a
Hindu married woman could not by renouncing cast off the obligations which she
contracted at the time of her first marriage. In the case reported as I L R 1 Lah. 440, it
was further observed by Abdur Rauf judge that the Muhammadan Law on this point as
clearly explained at page 437 of Amir Ali Muhammadan Law Volume II also laid down
that marriage between Hindu spouses will remain subsisting even if one of the spouses
becomes a convert to Islam unless a decree for the dissolution of the marriage is passed
by a competent Court in accordance with the procedure laid down in Muhammadan Law.

With due respect to the views expressed by the eminent judges in the afore-mentioned
cases, I am not prepared to hold that the rights of the parties relating to the dissolution of
marriage form part of the marriage contract and, consequently, a Hindu married woman
converted to Islam is to be deemed to remain wife of Hindu husband till her marriage is
dissolved by a competent Court for some reason.

Certain principles of Law relevant to the determination of questions relating to

matrimonial suits which in my opinion are firmly established are (1) the forms necessary
to constitute a valid marriage and the construction of the marriage contract depend on the
lex loci contractus, that is, the law, of the place where the marriage ceremony is

Page No. 3 of 6
performed. (2) on marriage, the wife automatically acquires the domicile of her husband
(3) the status of rights and obligations arising under the marriage contract are governed
by the lex domicili, that is by the law of the country in which for the time being they are
domiciled. (4) the rights and obligations of the parties relating to the dissolution of the
marriage do not Morn: part of the marriage contract, but arise out of and are incidental to
such contract and are governed by the lex domicili, see (1930) LRP217.

In the case of the four general principles formulated above, there is no reason why the.
principles of Muhammadan Law should not govern so far as validity of marriage is
concerned between a Mussalman and a Hindu married woman who embraces Islam. It
was especially in enacted British India that in marriage contracts parties would be
governed by Muhammadan Law, if they are Muhammadan and by their personal laws, if
they are non-Muhammadans. If principles of Hindu Law apply to the marriage celebrated
between Mussalmans then it will mean negation of religious freedom which was the key
stone of British Rule in India.

It was probably for this reason that in the cases reported as I L R 18 Cal. 264 and I L R 1
Lah. 440, it was considered necessary by the judges to decide whether the marriage of a
Hindu married woman is dissolved by her conversion to Islam according to
Muhammadan Law. The decision, reached by the judges, on this point, however, was not
correct as will be shown later on.

I now proceed to consider the principles of Muhammadan Law relating to marriage

between a married woman converted from Hinduism to Islam and a Mussalman. The
principle of Muhammadan Law governing such marriage is based on the following
passage in Chapter V of the Hedaya (Hamilton's Translation, 2nd Edition, page 64) :-

" Upon the conversion of one of the parties, the Magistrate is to require the other to
embrace the faith, and must separate them in case of recusancy. When the wife becomes a
convert to the faith and her husband is an infidel the Magistrate is to call upon the
husband to embrace the faith also; if he accede, the woman continues his wife ; but if she,
refuse, the Magistrate must separate them ; and this separation with Abu Hanifa and
Muhammad is a divorce."

The relevant passage in Baillie's Digest which is based on the Emperor Aurangzeb's
Fatawa Alamgiri, is to be found at pages 180 and 181 of the 2nd Edition of that treatise. It
is in the following terms :

"When one of two spouses embraces the Mussalman faith, Islam is to be presented to the
other, and if the other adopt it, good and well ; if not, they are to be separated. If the party
is silent and says nothing, the judge is to present Islam to him, time after time, till the
completion of three by way of caution. And there is no difference between a discerning
youth and one who is adult ; so that a separation is to be made equally on the refusal of
the former as of the latter, according to Abu Hanifa and Muhammad . . . . . . If the
husband should embrace the faith and the wife refuse, the separation is not accounted
repudiation ; but, if the wife should embrace the faith, and the husband decline, and a
separation is made in consequence, the separation is accounted repudiation, according to
Abu Hanifa and Muhammad."

Page No. 4 of 6
On the basis of the above mentioned authorities Mr. Amir Ali holds in this treatise on
Muhammadan Law that in a case in which the wife becomes a convert to Islam :-

" If the conversion takes place in a country subject to the laws of Islam, the faith will be
offered for acceptance to the husband, and on his refusal the Judge will make a decree for
separation or cancellation of the marriage. But, if the wife were to become a Mussalman
in .a non-Islamic country, and the husband should also adopt the faith before the
completion of three of "her terms", the marriage would remain subsisting, otherwise they
would become separated on such completion without any decree or order of the judge."

The main distinction which has been drawn by the Muslim jurists is between a
conversion which takes place in an Islamic country where both parties to the marriage
may be brought before the Qazi and a conversion which takes place in a country which is
not subject to the laws of Islam. In the former case it is laid down in the Hedaya that
Islam is to be presented to the unconverted party by the Qazi, and on refusal to embrace
the faith, the Qazi must pronounce a decree of divorce. In the latter case the dissolution of
the marriage takes place automatically after the completion of three of the wife's "terms"
because "the requiring of the other party to embrace the faith is impracticable, as the
authority of the Magistrate is not acknowledged there."

In the case under discussion, the conversion had taken place in British India The question
is whether the British India was to be regarded as an Islamic country or a country which
was not subject to the Laws of Islam. The judges deciding cases I L R 18 Cal. 264 and I L
R 1 Lah. 440 were of opinion that British India should be regarded as an Islamic country
because the Mussalman residing there were governed by their Personal Law in certain
matters. It was for that reason that they held that there was no lawful dissolution of the
previous marital tie because Islam had not been actually presented to the unconverted
party by the Court acting as a Qazi. The authorities quoted above envisage the actual
physical presence of the parties before the Qazi and in the absence of unconverted party,
it was difficult to see how Islam could be effectively presented to him. The procedure
which was prescribed by the Jurists was considered as designed to ensure that the
unconverted party fully understood the implications of a refusal to embrace Islam and it
did not appear to be applicable when it was impossible to bring that party before the
Qazi. This having been not done, the marriage between the woman converted to Islam
and her former husband was regarded as still subsisting. The reason given for declaring
British India as an Islamic country are, however, faulty.

By no stretch of reasoning, it can be said that British India was a country subject to the
laws of Islam. The rules of Muhammadan Law detailed in such treatises as the Hedaya
and the Fatawa Alamgiri pre-suppose the existence of Muhammadan Law as the Law of
the State and Islam as the State religion. One has to admit that in British India, the State
religion was not the Islam. The laws prevailing in British, India were quite different from
Islamic Law on several questions. Even now in Pakistan it cannot be said that the law of
the State is pure Muhammadan Law. The British India could not be considered as Darul
Islam as observed by Abdur Rauf judge in the case reported as I L R 1 Lah. 440. The
nonexistence of Qazis through which Islam had to be presented to a spouse who had not
embraced Islam also supports the view that British India was not Darul Islam.

The Law that prevailed in British India or is now in force in Pakistan or in the territory
under Azad Kashmir Government is not the law of Islam but the law of the particular
Government which lays down that personal law of the people belonging to different

Page No. 5 of 6
religions shall be enforced in certain matters. In the circumstances, the British India had
to be treated as a Foreign Country and the marriage of a Hindu married woman on her
conversion to Islam according to Muhammadan Law should be regarded as dissolved
without any decree or order of the judge on the completion of three of "her terms".

There is not evidence that husband of Mst. Madad Bi took any steps when she embraced
Islam and was. married to Baqar Shah. This inaction on the part of Hindu husband of
Mst. Madad Bi established beyond a shadow of doubt that it was not a fraudulent
conversion to Islam made with a view to legalise her marriage with Baqar Shah. I,
therefore, hold that the marriage between Baqar Shah and Mst. Madad Bi was perfectly
valid and the plaintiff-appellants were the legitimate sons of Baqar Shah and the previous
judgments which declared the plaintiff-appellants as illegitimate sons of Baqar Shah were
based on decisions erroneous in law and consequently do not operate as res-judicata.

Before concluding, I may venture to state the reasons which, in my opinion, led the
judges of the High Courts in British India to override the express provisions of
Muhammadan Law relating to dissolution of marriage of a Hindu or Christian married
woman on conversion to Islam without the intervention of the Court in British India. The
laws governing people belonging to different religions were different and it was
considered proper with a view to reconcile them to enforce these laws only so far as they
may be consistent with the principles of justice, equity and good conscience. Probably it
was urged before the judges that if a Hindu or Christian married woman was allowed to
dissolve her marriage which contemplated a life-long union merely on the ground that
she had become a convert to Islam, then it would be contrary to public policy, as such
recognition would tend to encourage dissolution by a subterfuge of marriages intended to
be indissoluble. As the personal law of Mussalmans was at conflict with the personal
laws of other communities, the Judges, considered to decide the matter according to the
rule. of justice equity and good conscience, but they overlooked one important aspect that
the children born from a union between a married Hindu or Christian woman who had
become convert to Islam and a Mussalman would be considered as illegitimate and this
stigma will cause life-long hardship. The cases in which it was held that a married Hindu
or Christian woman could not dissolve her marriage by conversion to Islam without the
intervention of the Court, were criminal cases under section 494, Indian P. C. and to
check bigamy these rulings were given. If the question of the legitimacy of the children
born to a Mussalman from his marriage with a Hindu or Christian married woman
converted to Islam had been in issue then probably Judges would have come to a
conclusion reached by me.

For the above reasons, I accept the appeal and setting aside the decision of the Courts
below, send the case back to the trial Court, under O. XLI rule 23 Civil P. C. for decision
on other points arising in the case. The costs of this appeal shall abide by the result.
Pleader's fee shall be Rs. 25.

Announced.

A.H. Appeal accepted

Page No. 6 of 6
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