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P L D 1967 Supreme Court 580

Present: A. R. Cornelius, C. J., S. A. Rahman, Fazle‑Akbar,

MRS. MARINA JATOI, Christian, Adult, residing at

versus

(1) NURUDDIN K. JATOI, Muslim, Adult, Barristerat‑Law, etc. Muhammadi House, McLeod Road,
Karachi AND
(2) THE STATE‑Respondents

Criminal Appeal No. 74 of 1966, decided on 30th June 1967.

(On appeal from the judgment and order of the High Court of West Pakistan Karachi Bench, Karachi, dated
the 3rd June 19661 in Criminal Revision Application No. 525 of 1965).

From (majority) Judgment of S. A. Rahman, J., Cornelius, C. J., Fazle‑Akbar, Hamoodur Rahman, JJ:

(a) Muhammadan Law ‑ Divorce ‑ Marriage of Muslim Pakistani male solemnized in London with Christian
woman under (English) Marriage Act, 1949 before a Registrar--Divorce communicated by husband in
Pakistan to wife in London and again, on wife's coming over to Pakistan (in connection with maintenance
proceedings initiated by her in England), another notice of talaq sent to wife under S. 7, Muslim Family Laws
Ordinance (VIII of 1961)‑Divorce, held, effective‑Lex loci celebrations has nothing to do with question o/'
divorce which is a matter solely for lea domicili‑Marriage before a Registrar in London does not necessarily
import the essential of monogamy‑Such marriage conforms to requirements of Muslim marriage and would
be recognised as valid under Muslim Law‑Divorce Act (IV of 1869) Christian Marriage Act (XV of
1872)‑Both Acts contain no express provision which prevents Muslim husband of Christian woman from
having resort to his own personal law for purpose of divorce‑Punjab Laws Act (IV of 1872), S. S, makes
Muslim personal law applicable to Muslims ‑ Muslim Family Laws Ordinance (VIR of 1961), S, 7‑Applies to
all Muslims‑Latest judicial trend in England favours application of lex domicili in cases of divorce‑‑‑Divorce
under S. 7, Muslim Family Laws Ordinance (VIII of 1961) not a "purely a private unilateral" act‑Matter does
go before a public authority--(Conclusions per judgment of S. A. Rahman, J., Cornelius, C. J., Fazle‑Akbar
and Hamoodur Rahman, JJ. agreeing).

Held, that the right of the Muslim husband to grant a divorce to his wife, in respect of the marriage
recognised by Muslim law, does not appear to have been taken away, by any statute current in Pakistan.
Therefore, the talaq given by the husband to his Christian wife, in case of a marriage solemnized in London
(England), under the (English) Marriage Act, 1949, before a Registrar, bad become effective.

Under the rules of Private International Law, the lex loci celebrationis, as such has nothing to do with the
question of divorce which is a matter solely for the law that happens to be the lex domicili of the parties, at
the time of the suit. This may very well be different from the law that governed the solemnisation of the
marriage.

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It would not seem to be correct that a marriage performed before a Registrar in England must necessarily
import the essential of monogamy.
Cheshire on International Law, p. 305.

Harvey v. Farnie (1882) 8 A C 43 and Warrender v. Warrender (1835) 2 Cl. & F 488 & 535 ref.

Hyde v. Hyde 1866 L R 1 P & D 130 considered.

In the instant case the validity of divorce had to be considered in the light of the law of Pakistan which was
the law of the domicile of the husband.

In respect of the form, the Hanafi Muslim Law by which the husband presumably was governed, only
requires that there should be a declaration and acceptance of marriage by the couple, at one and the same
meeting, in the presence of witnesses. This procedure is ensured by the Marriage Act, 1949. The Muslim Law
prescribes no specific ceremony for the performance of a marriage and no religious rites are necessary for
contracting a valid marriage.

The marriage of the parties in this case solemnised before a Registrar in England, according to the
procedure laid down in the Marriage Act, 1949, conforming as it did to the above requirements, would be
recognised as valid, under Muslim Law.

Farooq Leivers v. Adelaide Bridget Mary P L D 1958 Lah. 431 ref.

Mohammedan Law by Syed Ameer Ali, Vol. II, 1965 Edn., pp. 139 & 255.

There is no provision in the Divorce Act, 1869 and the Chiristian Marriage Act, 1872 which in
express terms, prevents a Muslim husband of a Christian woman, from having resort to his own personal law,
for the purpose of the dissolution of the marriage. The provisions of the two Acts no doubt provide a
machinery for dissolution of marriage through Court, but there is nothing in them to show that the procedure
prescribed therein for that purpose is to be regarded as exclusive.

So far as the Muslim husband is concerned, the Muslim Personal Law on the subject of marriage, would
clearly be applicable to him. In the absence of special custom or usage to the contrary, according to section 3
of the Punjab Laws Act, 1872, the law applicable to a Muslim, in respect of questions relating to his
marriage, would be the Muslim Personal Law. Again, the Family Laws Ordinance, 1961, applied to all
Muslim citizens in Pakistan wherever they may be. If a Muslim husband is married to a Christian woman in a
form recognised by Muslim Law, or to a non‑citizen Muslim woman, there is no reason why the provisions of
section 7 of this Ordinance, should not apply, if he wants to divorce his wife by talaq.

There is nothing in this Ordinance which rules out the possibility of an application of its provisions to
a Muslim husband married to a Christian wife, in regular form.

The latest judicial trend in England favours the principle that if the law of the domicile permits a dissolution
of marriage solemnized in England by the pronouncement of talaq, the divorce may be recognised as valid,
under the rules of Private International Law.

Ali Nawaz Gardezi v. Col. Muhammad Yusuf P L D 1963 S C 51 and Russ v. Russ (1962) 3 A E R 193 ref.

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Sasson v. Sasson 1924 1 A C 1007; Har‑Shafi v. Har‑Shafi (1953) 2 A E L R 373; Collis v, Hector, L R
(1875) 19 E C 334 ; Hammersmith Superintendent Registrar of Marriages, Ex parte Mir Anwaruddin (1917)
1 K B D 634 and Maher v. Maher (1951) 2 A F F R 37 considered.

Private International Law by Cheshire, pp. 400 & 402 and Dicey's Conflict of Laws, 7th Edn., p. 307 ref.

Divorce by talaq is now regulated in Pakistan by the procedure prescribed in the Muslim Family Laws
Ordinance, so that it no longer remains a purely private unilateral act of the husband. The matter does go
before a public authority before it receives finality.

The argument based on the fact that the Pakistan Christian Marriage Act, 1872, invalidates a marriage
between a Christian and another, unless solemnized under that Act and consequently, it could only be
dissolved under that Act, read with the Divorce Act, 1869, did not appear to be available in the present case
where the marriage took place in London under the English Marriage Act, 1949, which contained no
analogous provision.

Russ v. Russ (1962) 3 A E R 193 ; Attorney‑General of Ceylon v. Reid (1965) L R 720; Datta v. Sen I L R
(1939) 2 Cal. 12; Cheni v. Cheni (1962) 3 A E R 8?3 and Halsbury's Laws of England, Vol. 7, 3rd Edn , p.
112 considered.

(b) Muhammadan Law‑(Dower)‑Marriage between Muslim male and Christian woman solemnized in
London (England) before a Registrar ‑ Wife entitled to dower though no dower fixed (Mahr‑ul‑Misl‑Dower
payable to woman of similar status and circumstances as the claimant).

Where a case involving the question of competence to 'divorce was decided on the footing that the
Muslim husband was entitled to treat the marriage with a Christian woman, solemnized in England before a
Registrar, as one governed by Muslim law, the wife would in her turn have the right to claim dower from
him, although no dower had been fixed initially, at the time of the marriage. The dower in such circumstances
would be assessed as mahr‑ul‑misl, that is the dower which would be payable to a woman of a similar status
and circumstances.

Ameer Ali's Muhammadan Law, Vol. II, 1965 Edn., p. 395 ref.

From (minority) Judgment of Muhammad Yaqub Ali, J.:‑

(c) Constitution of Pakistan (1962), Art. 58(3) ‑ Leave to appeal‑Granted by Supreme Court where question
raised was of "first impression" in the Court, viz., question of validity of divorce granted according to law of
Pakistan in regard to a marriage solemnized in England before a Registrar between a Pakistani male and a
Christian Spanish woman.

(d) Muhammadan Law ‑ (Divorce) ‑ Marriage of Muslim Pakistani male solemnized in London with
Christian woman under (English) Marriage Act, 1949, before a Registrar‑Such marriage cannot be dissolved
by husband by unilateral pronouncement of talaq under Muslim Family Laws Ordinance (VIII of 1961), S. 7‐
Fundamental difference between a Muslim marriage and a Christian marriage‑Marriage under (English)
Marriage Act, 1949 cannot be assimilated to a Muslim marriage‑Divorce Act (IV of 1869), Ss. 2 &
10‑Provisions of Divorce Act (1869) apply in terms to a marriage where one of the parties is a
Christian‑Christian Marriage Act (XV of 1832), Ss. S & 42‑Prior subsisting marriage is a hindrance to
marriage under Christian Marriage Act (XV of 1872)Christian marriage is monogamous‑Application of

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personal law to a marriage between Muslim and a Christian in Pakistan stands excluded‑Such marriage can
be dissolved only under Divorce Act, 1869, i.e., by intervention of Court‑[per Muhammad Yaqub Ali, J.'s
(minority) judgment].

The marriage between the parties (Muslim Pakistani male and Christian woman) solemnized under the
British Marriage Act, 1949, in London subsisted and was not dissolved by pronouncement of Talaq and
service of notice by the husband under section 7 of the Family Laws Ordinance on the Chairman of the Union
Council.

There is a fundamental difference between a Muslim marriage and a Christian marriage. The latter is a
union for life while the former is placed on the footing of a contract liable to be dissolved by the husband
unilaterally and by the wife by the intervention of a Court. A church marriage and equally a marriage
performed before the Registrar is accordingly liable to be dissolved not by a unilateral act of the husband, but
under the decree of a Court.

A certificated marriage performed by a Superintendent Registrar under the British Marriage Act, 1949,
cannot be assimilated to a Muslim marriage liable to be dissolved by pronouncement of Talaq. Another view
of the matter is that if the husband contracts that the marriage will be a union for life liable to be dissolved
only by the decree of a Court he shall remain bound by it and is not relieved of that obligation by
pronouncement of Talaq.

The view that a marriage between a Muslim male and a non‑Muslim and non‑Pakistani female may be
dissolved by pronouncement of Talaq can be rested on the doctrine that marriage being a matter of personal
status the personal law of the husband shall apply to its dissolution. It does not, however, follow that section
7 of the Muslim Family Laws Ordinance becomes applicable to such a marriage. Section 2 is in definite
terms that the Ordinance applies to Muslim citizens of Pakistan wherever they may be. The personal status
which the wife acquired as a married woman under the British Marriage Act, 1949, would not, therefore, be
affected by the provisions of the Ordinance unless an express provision was made to that effect in the
Ordinance.

One of the parties to the present marriage being a Christian by faith the above provisions shall apply in terms.

"Other lawful hindrance" (section 42, Divorce Act, 1869), includes a prior subsisting marriage,
because marriage under the Christian Marriages Act is monogamous.

An examination of the relevant provisions of the British Marriage Act, 1949, the Pakistan Divorce Act, 1849
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 1872 and to that extent the
application of personal law stands excluded by statute. Reference may be made to section 5 of the Punjab
Laws Act and other similar enactments and Regulations prevailing in other parts of undivided India. It is for
this reason that a Christian female is usually converted to Islam before being married to a Muslim male.
Consequently a marriage between a Muslim male and a Christian female can be dissolved only under the
Divorce Act and not by pronouncement of Talaq under the personal law of the husband. The language
employed by the Legislature in section 2 of the Act viz. "Nothing hereinafter contained shall authorise any
Court to grant any relief under this Act except where the petitioner or respondent professes the Christian
religion" has, therefore, to be construed in the sense that if one of the parties to the marriage professes the
Christian faith the marriage can be dissolved only by a decree of the Court under the Act and not otherwise.
A contrary view would lead to anomalous results, such as, if a Muslim husband petitions to Court under the

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Divorce Act for dissolution of his marriage with a Christian wife he shall have to prove to the satisfaction of
the Court that she has been guilty of adultery and shall also be obliged to pay to her alimony pendentelite and
costs of the suit as well as permanent alimony on obtaining a decree for dissolution. On the contrary if the
Muslim Law applies he can avoid all these obligations by pronouncing Talaq and bringing to an end the
marriage by his unilateral act. No husband would, therefore, ever make resort to a Court for dissolution of
marriage. The question is whether it would be reasonable to attribute such equivocation to the Legislature in
enacting Act IV of 1869.

Under the Christian Marriage Act, 1872, which is complementary to the Divorce Act of 1869 a person
professing the Christian faith alone can be appointed Marriage Registrar. How can the two marriages,
therefore, be treated alike in the matter of conferring a personal status on the husband and wife? A marriage
performed under either of the two Acts is, therefore, a Christian marriage and on no principle can it be
deemed to be a Muslim marriage for the purposes of dissolution by pronouncement of Talaq. Another view is
that since a Muslim marriage is a contract freely entered into by the spouses the husband would not be
permitted to resile from the most important condition of the contract, namely, that the marriage is a union for
life liable to be dissolved only by intervention of a Court.

The King v. The Superintendent Registrar of Marriages Hammersmith, Ex parte Mir Anwaruddin (1917) 1 K
B D 634 and Baindail (otherwise Lawson) v. Baindail (1946) 1 A E R 342 ref.

In re:Har Shefi (otherwise Cohen Lask) v. Har Shefi (1953) 2 A E R 373 and Russ (otherwise Geffers) v.
Russ (otherwise DE Waele) (1962) 3 A E R 193 distinguished.

Ali Nawaz Gardezi v. Col. Muhammad Yusuf P L D 1963 S C 51 and Russ v. Russ (1962) 3 A E R 193
considered.

Ijaz Hussain Batalvi, Advocate Supreme Court instructed by V. A. Kidwai, Attorney on behalf of M. A.
Rehman, Attorney on record for Appellant.

Khalid M. Ishaq, Advocate Supreme Court instructed by M. S. Mesawa, Attorney for Respondent No. 1.

Raja Said Akbar, Advocate‑General West Pakistan (M. Kaleem, Advocate Supreme Court with him)
instructed by Shafiq Ahmad, Senior Attorney on behalf of 1jaz Ali, Attorney on record for the State.

Dates of hearing: 27th and 28th February 1967.

JUDGMENT
MUHAMMAD YAQUB ALI, J.‑This appeal by special leave of the Court is from the order of a Division
Bench of the High Court of West Pakistan at Karachi setting aside in revisional jurisdiction the order of the
District Magistrate, Karachi, dated 23‑11‑1965 confirming under the Maintenance Orders Enforcement Act,
1921, the order of the Magistrate of the police Court of the Metropolis, London, dated the 3rd January 1963,
whereby Mr. Nur‑ud‑Din K. Jatoi, respondent, was directed to pay for the use of his wife Mrs. Marina Jatoi,
appellant, to the Chief Clerk Marylebone Magistrate's Court, London, on her behalf a weekly sum of £5 and
in addition a weekly sum of 50 shillings for the maintenance of her son until he attains the age of 16 years.

The facts are not in dispute. On the 23rd May 1959, Mrs. Marina Jatoi a Spanish national and Christian by
faith was married to Mr. Nur‑ud‑Din under the British Marriage, Act, 1949, before the Registrar of
Marriages, London. A son was born of the wedlock in 1959 in Spain. The respondent thereafter left for

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Pakistan leaving behind the appellant and the infant child and without making any provision for their
maintenance. In consequence thereof the appellant moved the Magistrate of the Metropolitan Police Court
London for maintenance for herself and for legal custody of and maintenance for her infant son by the
respondent. In the meantime the respondent on 1‑3‑1961 remarried at Karachi a Swedish woman after her
conversion to Islam and sent a letter of divorce to the appellant on 11‑5‑1961, in London. The letter was
exhibited by the appellant in the maintenance proceedings, but not acted upon by the Magistrate who on the
3rd January 1963, granted the application in the terms reproduced above.

The order granting maintenance having been passed by a reciprocating country within the purview of
the Maintenance Order Enforcement Act, 1921, was in due course transmitted to Pakistan and registered in
the Court of the District Magistrate, Karachi. On 4‑4‑1964 the order was confirmed with notice to the
respondent who did not put in appearance to oppose it. No amount was, however, remitted by the respondent
to the Chief Clerk Marylebone Magistrate's Court, London, for use of the appellant and her son whereupon
she herself came to Karachi and moved the District Magistrate for enforcement of the order. The application
was opposed by the respondent and while the matter was pending and a sum of Rs. 13,000 had fallen true to
the appellant he sent the following notice to her on lat July 1965:

"I, Nur‑ud‑Din K. Jatoi, in full possession of my senses freely and at my own volition hereby give you
Talak this day the 18th July 1965 and on execution of this latter you cease to be my wife."

Simultaneously a notice as required by section 7 of the Family Laws Ordinance, 1959, was served on the
Chairman, Union Council, P. E. C. H. S. Karachi to give effect to the divorce, As divorce under the
Ordinance was to take effect after the expiry of three months from the service of the notice on the Chairman
the respondent on 11‑8‑1965 made an application to the District Magistrate for cancellation of the order of
maintenance on the basis of the letter of divorce dated 11‑5‑1961 which as mentioned above was sent by him
to the respondent in London. This was followed by another application made on 25‑10‑1965 after the expiry
of 90 days from the service of notice on the Chairman that the marriage between the parties stood dissolved
from 1‑10,1965 and the order granting maintenance at £5 a week for use of the appellant was, therefore, no
longer enforceable.

Both the applications were dismissed by the District Magistrate by his order dated 23‑11‑1965 against which
the respondent filed a revision petition in the High Court on the plea that the divorce pronounced by him on
the 1st July 1965, had taken effect under the Family Laws Ordinance three months after the service of notice
on the Chairman, Union Council, P. E. C. H. S. Karachi and thereafter the appellant was not entitled to
receive maintenance for herself.

In answer the appellant claimed that the marriage performed between the parties in London was not a Muslim
marriage which could be dissolved by oral pronouncement of talak by the husband and that the Muslim
Family Laws Ordinance, 1959, had no application to a marriage solemnized in London before a Registrar
under the Marriage Act, 1949.

Both the pleas were turned down by the High Court on the view that the marriage of the appellant with the
respondent was effectively dissolved under section 7 of the Muslim Family Laws Ordinance which as the law
of the domicile of the husband applied to the marriage between the parties. In consequence the learned Judge
in pursuance to section 8(2) of the Maintenance Enforcement Orders Act, 1921, cancelled the order of the
Magistrate of the Police Court of the Metropolis London granting maintenance at £5 a week for the use of the
appellant.

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Leave to appeal was granted as the question raised in the case as to the validity of a divorce granted
according to Muslim Law and the laws of Pakistan to dissolve a marriage, solemnized in England between
the respondent and a Pakistani national and the appellant a Spanish national was of first impression in this
Court.

The question raised is twofold: (1) what is the nature of the marriage contracted by the parties on
23‑5‑1959 before the Registrar of Marriages in London and whether it could be assimilated to a Muslim
marriage for purposes of divorce; and (2) whether being a marriage between spouses one of whom is a
Christian by faith its dissolution is governed exclusively by the Divorce Act, 1869.

Before answering the questions it is necessary to examine the grounds on which the High Court has held that
the marriage between the parties stood dissolved as from 1st October 1965, under section 7 of the Family
Laws Ordinance. In coming to this conclusion the learned Judge found support from the decision in the case
of Ali Nawaz Gardezi v. Col. Muhammad Yusuf (P L D 1963 S G 51). At page 74 of the report it was
observed as follows:‑----

"Coming next to the important section 7 itself, it seems to us that the Legislature had attempted to
incorporate the Islamic Law provisions with regard to the two forms of "Talaq‑us‑Sunnat", viz. "talaq
Ahsan" and "talaq Hasan", as far as may be, in this section. The first of them is that form in which a
single pronouncement of divorce is made during a period of menstrual purity, no intercourse having
taken place during that period and is followed by a period of Iddat. The second is one in which the
first pronouncement made in similar circumstances is followed by two further pronouncements in
succeeding periods, no intercourse taking place at any time during the three periods. Such a divorce
becomes irrevocable on the third pronouncement. Whether the result achieved is in strict conformity
with Islamic Law is a question which does not fall within the province of this Court to determine by
reason of Articles 5 and 6 of the Constitution. The section clearly contemplates a machinery of
conciliation whereby a husband wishing to divorce his wife unilaterally, may be enabled to think
better of it, if the mediation of others can resolve the differences between the spouses. The talaq
pronounced is to be ineffective for a period of 90 days from the date on which notice under subsection
(1) of this section is delivered to the Chairman and this period is to be utilized for the attempt at
reconciliation. Subsection (6) makes it clear that even if talaq has become effective under the previous
subsections, the spouses would not be prevented from re‑marrying, without an intervening marriage
with a third person, unless such termination is effective for the third time. All that the section requires
is that the marriage in question should be dissolvable by means of a talaq and it does not seem
necessary to adopt the narrow construction contended for on behalf of the respondent, that the wife
mentioned in the section must necessarily be a Pakistani citizen. To suggest, as Mr. Mahmud Ali has
done, that unless she is such a citizen she would have no right to appoint an Arbitrator on her behalf,
under section 2(a) of the Ordinance, appears to beg the question."

The question whether a marriage solemnized under the Christian Marriage Act, 1872, or its British
counterpart is liable to be dissolved by pronouncement of talaq or only by intervention of Court under the
Divorce Act of 1869 which is as much the law of the domicile of the husband as his personal law was not
raised and determined in Ali Nawaz Gardezi's case. The question is, therefore. open to examination.

There is a fundamental difference between a Muslim marriage and a Christian marriage. The latter is a union
for life while the former is placed on the footing of a contract liable to be dissolved by the husband
unilaterally and by the wife by the intervention of a Court. A church marriage and equally a marriage
performed before the Registrar is accordingly liable to be dissolved not by a unilateral act of the husband, but

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under the decree of a Court. The statement requires elaboration.

There are two categories of marriage under the Marriage Act, 1949: (1) marriage according to the rites of the
Church of England; and (2) marriage performed on the authority of a Superintendent Registrar's Certificate.
The marriage in the instant case falls in the second category which is dealt with in sections 26 to 31. Under
section 28 no certificate or licence for marriage shall be issued unless the notice of marriage is accompanied
by a solemn declaration inter alia to the effect that he or she believes there is no impediment of kindred or
alliance or other lawful hindrance to the marriage. The subsistence of a prior marriage of one or both parties
is by authority included in "any other lawful hindrance" and it has been consistently held by British Courts
that subsequent marriage is void notwithstanding the personal law of the husband. Further except in the case
of Russ v. Russ ((1962) 3 A E R 193), to which reference will be made later on it was also held firmly that a
marriage performed in England in the office of the Superintendent Registrar was not dissolved by declaration
of the husband operating or purporting to operate solely according to his personal law, e.g., in the case of The
King v. The Superintendent Registrar of Marriages, Hammersmith, Ex parte Mir Anwaruddin ((1917) 1 K B
D 634).

On the above premises a certificated marriage performed bye a Superintendent Registrar under the British
Marriage Act, 1949, cannot be assimilated to a Muslim marriage liable to be dissolved by pronouncement of
talaq. Another view of the matter is that if the husband contracts that the marriage will be a union for life
liable to be dissolved only by the decree of a Court he shall remain bound by it and is not relieved of that
obligation by pronouncement of talaq. The decision in the case of, Ali Nawaz Gardezi v. Col. Muhammad
Yusuf (P L D 1963 S C 51), proceeds on the premises that a marriage between a Muslim male and a non-
Muslim female and a non‑citizen can be dissolved by pronouncement of talaq. This would be true if the
marriage is performed in accordance with Muslim law, but not if the marriage is performed under the British
Marriage Act, 1949, or the Christian Marriage Act, 1872.

The view that a marriage between a Muslim male and a non‑Muslim and non‑Pakistani female may be
dissolved by pronouncement of talaq can be rested on the doctrine that marriage being a matter of personal
status the personal law of the husband shall apply to its dissolution. It does not, however, follow that section
7 of the Muslim Family Laws Ordinance becomes applicable to such a marriage. Section 2 is in definite
terms that the Ordinance applies to Muslim citizens of Pakistan wherever they may be. The personal status
which the appellant acquired as a married woman under the British Marriage Act, 1949, would not, therefore,
be affected by the provisions of the Ordinance unless an express provision was made to that effect in the
Ordinance. Since in All Nawaz Gardezi's case it has been held that the wife mentioned in section 7 of the
Ordinance need not necessarily be a Pakistani citizen, I would leave this question to be examined further in
some future case for in the instant case we are more pertinently concerned with the application of the Divorce
Act, 1859, which is as much the law of the domicile of the respondent as his personal law and the Muslim
Family Laws Ordinance.

The Divorce Act of 1869 was brought in the statute book to "amend the law relating to the divorce of persons
professing the Christian religion and to confer upon certain Courts jurisdiction in matters matrimonial" In
effect it extended to India the provisions of the Matrimonial Causes Act, 1852 (20 and 21 VIC C. 85) as
amended by the Matrimonial Causes Act, 1859 (22, 23 VIC. C 61) and the Matrimonial Causes Act (29 and
30 VIC. C. 32). The Act extends to the whole of Pakistan, but nothing contained in it "shall authorise any
Court to grant any relief under this Act except where the petitioner or respondent professes the Christian
religion or to make decrees of dissolution of marriage except where the parties to the marriage are domiciled
in Pakistan at the time when the petition is presented. (Section 2 as amended by Act 25 of 1926 and Act 30 of
1927). Dissolution of marriages is governed by sections 10 to 14. A husband may obtain dissolution on the

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ground that his wife has been guilty of adultery and the wife may obtain divorce on the ground that her
husband has exchanged his profession of Christianity for the profession of some other religion; and gone
through a form of marriage with another woman or has been guilty of incestuous marriage or bigamy with
adultery, etc. etc., (section 10). After the Court is satisfied about absence of collusion and on evidence the
case of the petitioner is proved the Court shall pronounce a decree declaring such marriage to be dissolved
(sections 12 and 14). Every decree for a dissolution of marriage made by the District Judge shall be subject to
confirmation by the High Court (section 17). In any suit under the Act whether instituted by husband the
Court on being satisfied of the truth of the statements contained in the petition may make such order on the
husband for payment to the wife of alimony pending the suit as it may deem just (section 36). On the
confirmation of the decree the High Court or the District Court as the case may be by order direct that the
husband shall to the satisfaction of the Court secure to the wife such gross sum of money or such annual sum
of money as having regard to certain matters it thinks reasonable (section 37).

One of the parties to the present marriage being a Christian) by faith the above provisions shall apply
in terms, but it wash maintained that the respondent as a Muslim was under his personal law entitled to
dissolve the marriage by pronouncing talaq. Reliance was placed in this behalf on section 2 viz. "Nothing
hereinafter contained shall authorise any Court to grant any relief under this Act except where the petitioner
or respondent professes the Christian religion". In view of the language employed it was said that the Act was
an enabling provision and was not calculated to oust the application of the personal law of the husband.

Just as the Divorce Act of 1869 consolidated the law in matters matrimonial, the Christian Marriages Act XV
of 1872 which followed it was based on British Acts 14 and 15 Victoria C 40 and 58 George III C 84 (both
statutes related to marriages in India) and Act 5 of 1852 and Act 5 of 1865 on the same subject which were
repealed by this Act. Section 4 of the Act provided that 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 following
sections and any such marriage solemnized otherwise than in accordance with such provisions shall be void,
Section 5 is in these terms:

"5. Marriage maybe 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."

Section 7 which makes provisions for appointments of marriage Registrars lays down that the Provincial
Government may appoint one or more Christians either by name or as holding any office for the time being to
be the Marriage Registrar or Marriage Registrars for any district subject to its administration. The declaration
required to be filed before issue of certificate of marriage whether performed in church or before a Marriage
Registrar is identical (sections 18 and 41). The certificate shall not be granted unless one of the parties
intending marriage appears personally before such Marriage Registrar and makes oath that he or she believes

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that there is not any impediment of kindred or affinity or other lawful hindrance to the said marriage (section
42). As brought out earlier "other lawful hindrance" includes a prior subsisting marriage, because marriage
under the Christian Marriages Act is monogamous. In some part of the ceremony of marriage which is
solemnized after issue of, certificate the husband shall declare to the effect: "I do solemnly declare that I
know not of any lawful impediment why I, A. B. may not be joined in matrimony to C. D.". Reliance in this
connection may be made to sections 18 to 19 of the Divorce Act IV of 1869 which provide to the effect that a
marriage may be declared null and void inter alia on the ground "that the former husband or wife of either
party was living at the time of the marriage" and the marriage with such former husband or wife was then in
force.

The above examination of the relevant provisions of the British Marriage Act, 1849, the Pakistan
Divorce Act, 1869 ands 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 1872
and to that extent the application of personal law stands excluded by statue. Reference may be made to
section 5 of the Punjab Laws Act and other similar enactments and Regulations prevailing in other parts of
undivided India. It is for this reason that a Christian female is usually converted to Islam before being
married to a Muslim male. Consequently a marriage between a Muslim male and a Christian female can be
dissolved only under the Divorce Act and not by pronouncement of talaq under the personal law of the
husband. The language employed by the Legislature in section 2 of the Act viz. "Nothing hereinafter
contained shall authorise any Court to grant any relief under this Act except where the petitioner or
respondent professes the Christian religion" has, therefore, to be construed in the sense that if one of the
parties to the marriage professes the Christian faith the marriage can be dissolved only by a decree of the
Court under the Act and not otherwise. A contrary view would lead to anomalous results, such as, if a
Muslim husband petitions to Court under the Divorce Act for dissolution of his marriage with a Christian
wife he shall have to prove to the satisfaction of the Court that she has been guilty of adultery and shall also
be obliged to pay to her alimony pendentelite and costs of the suit as well as permanent alimony on obtaining
a decree for dissolution. On the contrary if the Muslim law applies he cant avoid all these obligations by
pronouncing talaq and bringing to an end the marriage by his unilateral act. No husband would, therefore,
ever make resort to a Court for dissolution of marriage. The question is whether it would be reasonable to
attribute such equivocation to the Legislature in enacting Act IV of 1869 ?

Note may now be made of the decided cases cited by the learned counsel for the parties on the points falling
for determination in the case. The first case in tire series is The King v. The Superintendent Registrar of
Marriages, Hammeramith, Ex parte Mir Anwaruddin ((1917) 1 K B D 634). Under the Marriage and
Registration Act, 1856 (19 and 20 Victoria C. 119) which was succeeded by the Marriage Act of 1949 a
statutory duty was imposed by section 9 upon the Superintendent Registrar to issue a certificate and licence
to marry provided that no lawful impediment to the issue of such certificate be shown to his satisfaction. Mir
Anwaruddin, the applicant in the case complained, that the Superintendent Registrar had wilfully and without
cause refused and neglected to issue the certificate and licence. He was a native of and domiciled in the
Province of Madras (India) and professed the religion of Islam and was subject to the law of Koran. On
March 18, 1913, he contracted a civil marriage in England with Ruby Tauline Hudd. On May 3, 1913, she
deserted him and refused to cohabit with him. Subsequently the applicant obtained a decree for restitution of
conjugal rights from the City Civil Court of Madras and the decree was duly served upon her, but she refused
to obey it. In 1915 Mir Anwaruddin made a declaration of divorce in the presence of two witnesses at Walter
House, Strand, W. C The evidence was that under the Mahomedan Law, a Mahomedan is permitted to have
four wives at the same time and he may marry a "Kitabia", that is, a person who believes in a revealed
religion, namely, Mahomedanism, and Judaism, but not an idolatress or fire worshipper who under the
Mahomedan Law can dissolve any of his marriages by a mere declaration of his will and pleasure to that

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effect. It does not require the intervention of the Court of law and it takes effect from the moment of
pronouncement and is irrevocable. It was stated that it applies equally to a Christian as to a Mahomedan wife
and that according to the Mahomedan Law administered in Courts of Justice in India such a declaration of
divorcement pronounced by a Mahomedan husband is valid for all purposes. In order to ascertain his position
in England Mir Anwaruddin presented a petition in the Probate and Divorce Division of the High Court of
Justice for a decree declaring that the marriage had been dissolved and alternatively for dissolution of the
marriage on the ground of the misconduct of the wife. The Registrar refused to admit the petition on the
ground that Mir Anwaruddin was not domiciled in England. On appeal the Registrar's decision was upheld
and it was added that the marriage had been dissolved according to law and that as there was no subsisting
marriage the Court could not pronounce a decree. Subsequently in 1916 Mir Anwaruddin applied to the
Superintendent Registrar for a certificate and a licence to marry Violet Louise Ling. The application was
refused and thereupon Mir Anwaruddin applied to the Division Court for a rule nisi for a mandamus, which
was granted. On appeal by the Crown the rule was discharged on the finding that a marriage solemnized in
England between a Mahomedan domiciled in India and a Christian woman could not be dissolved by the
husband handing to the wife a writing of divorcement although that would be an appropriate mode of
effecting the dissolution of a Mahomedan marriage according to Mahomedan law. Reliance in this connection
was placed on the ratio decedendi of Lord Penzance in Hyde v. Hyde and Woodmansee (1866 L R 1 P & M
130, 133), that marriage according to English law and as understood in all Christian countries is: "the
voluntary union for life of one man and one woman to the exclusion of all others. Viscount, C. J., observed:
"the status of marriage as understood by the law of England is conferred by Ali, entering into the contract of
marriage. Once the marriage has been celebrated according to the law of the place where it is celebrated the
status of marriage with all its incident is conferred by law upon the parties". Dealing with the argument that
under personal law Mir Anwaruddin as entitled to dissolve his marriage with Ruby Hudd by pronouncement
of talaq, the Lord Chief Justice continued to state;

"It is not a law peculiar to India, but to Mahomedans wherever they may be domiciled. It is
recognized by the Courts of India, stated by Sir Gorell Barnes, President, in Chetti v. Chetti 1909 p.
67. But the applicant is seeking to travel a very long way and over a hitherto unbridgeable gulf when
he claims that the marriage he contracted with Ruby Hudd is dissolved in this country by the
operation of the law of his religion. An English woman or a woman domiciled in England who
marries in England a person domiciled in Scotland, Ireland or India, or elsewhere out of the realm of
England, acquires by the status of marriage the domicile of the husband and is subject to the law of
that domicile, but she does not acquire his religion or become subject to the laws of his religion
except in so far as they are the law of his domicile and then to that extent only."

The next case is that of Baindail (otherwise Lawson) v. Baindail ((1946) I A E R 342). The respondent, an
English woman, went through a ceremony of marriage with the appellant in that case on May 5, 1939, at a
London Registry Office, the appellant being described in the marriage certificate as a bachelor. In May 1928,
the appellant had lawfully married a Hindu woman according to Hindu law at Mathra (India) and his Hindu
wife was alive at the time of his marriage. It was established that the appellant's Hindu marriage would be
recognized by the Courts of British India. The question for the determination of the Court was whether
having regard to the appellant's marriage in India the subsequent English ceremony of marriage was valid. It
was held that the Court was bound to recognize Indian marriage as a valid marriage and an effective bar to
subsequent marriage in England. A perusal of the judgment would show that the main discussion in the case
entered round the statement of Lord Penzance in Hyde v. Hyde, that marriage as understood in Christendom
is the voluntary union for life of one man and one woman to the exclusion of all others. On the basis of the
statement it was urged on behalf of the husband that his marriage in India was not a valid marriage and an
effective bar to his subsequent marriage in England, but the plea was overruled on the view that by the law of

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the appellant's domicile at the time of his Hindu marriage he unquestionably acquired the status of a married
man according to Hindu law and he had imposed upon him the rights and obligations which that status
confers under that law and that status he has not lost.

The next case is In re: Har Shefi otherwise Cohen Lask v. Har Shefi ((1953) 2 A E R 373). The facts
mentioned in the head note of the case are that the wife, a Jewess, was born in England and domiciled there
before her marriage. The husband, a Jew was domiciled in Israel. On January 10, 1950 the parties were
married at the Chief Rabbinate at Tal Aviv. In October 1950, the wife returned to England. In February 1951,
the husband followed her and in September 1951, he handed to the wife a bill of divorcement at Beth Din in
London. Soon after that he was deported to Israel, where he married again. On the petition by the wife for a
declaration that the marriage had been validly dissolved on September 6, 1951, it was held that the divorce
was a valid divorce according to Jewish Rabbinical Law and, therefore, valid according to the law of the
parties: domicile, namely, Israel; the wife had resumed her English domicile after that divorce and
accordingly the Court "had jurisdiction to make the declaration sought". The facts of this case are thus clearly
distinguishable. The parties were Jews and the marriage performed at Tal Aviv under Jewish Law. Similarly
the divorce pronounced in the presence of the Beth Din was a valid divorce according to the personal law of
the parties.

The next case on which the learned counsel strongly relied is Russ (otherwise Geffers) v. Russ (otherwise DE
Waele) intervening. The relevant facts are that in 1913, an English spinster (Esther May Rosser) married in
England a Mahomedan domiciled in Egypt. They went together to Egypt where they went through a
Mahomedan ceremony of marriage. In 1932 the marriage was dissolved under Mahomedan law by a talaq
(divorce) in the presence of Esther May Rosser and of witnesses and before an officer of the Court and was
enrolled in the Court records. Later in that year an order was made by the Egyptian Court for the support of
Esther May Rosser by her former husband. In 1942 Esther May Rosser went through a ceremony of marriage
in Cairo with Russ according to the rites of the Church of Scotland. On 24th February 1945, Russ married
another wife, a Belgium lady, at the Town Hall, Hasselt, in Belgium. He then married the petitioner on 27th
May 1950 at the Registry Office of the District of the City of Westminster. The question raised in the appeal
was which of the three women was a lawful wife of the husband. The case, therefore, depended upon the
validity or otherwise of the marriage of Russ with Esther May Rosser in April 1912. This in turn depended on
whether on that date Esther May Rosser was in law free to marry. At the trial evidence as to Egyptian law
was given by Dr. Jamal Nasir, an Advocate, in Mahomden law to the effect that Egyptian law recognises and
gives effect to Mahomedan religious law as the personal law of a Mahomedan domiciled in Egypt; (b) under
Mahomedan law a man may have four wives: in other words, marriage is potentially polygamous; (c) a man
may divorce his wife irrevocably by pronouncement of "Talaq" three times in the presence of witnesses. No
judicial pronouncement of investigation is required before a man exercises this right. The divorce is
constituted by the unilateral declaration of the husband in the presence of at least two witnesses; (d) Egyptian
law recognizes and gives effect to, a talaq divorce pronounced by a Mahomedan domiciled in Egypt. The
marriage is recognized by Egyptian law as dissolved with effect from the date of declaration; and this is so
wherever the marriage was solemnized. It gives effect to the dissolution in a number of ways ; for instance,
talaq may be and almost always is pronounced before an authorised officer of the Egyptian Court concerned
with questions of personal status, whose duty it is to record the divorce in the records of the Court. The
record then constitutes a solemn recognition by the Courts of Egypt of the fact of divorce. It was held that the
English Courts would recognize as valid the marriage of Russ in 1942 with English woman although the
divorce was affected without formal judicial pronouncement of divorce.

It is important to notice the reasons on which the decision in Russ v. Russ was based. The proceedings
took place in the presence of Esther May Rosser and were recorded in the Court's record and the divorce was

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judicially recognized by the Court of domicile in the subsequent maintenance order. It was recognized that
the marriage of Esther May Rosser in 1913 was a Christian marriage, but the evidence showed that the talaq
divorce was effective in the country of the domicile to dissolve any marriage of whatever nature and it was
not a case in which the Court had a discretion to withhold recognition of the law of the domicile by which
Esther May Rosser was free to marry in 1942. The decision in Mir Anwaruddin's case was distinguished on
the view that the real ratio of the majority in that case was the absence of any judicial proceeding. The talaq's
pronouncement was made privately in a room in London in the absence of the wife and there was no
suggestion of any judicial proceeding of any kind.

Even if a border interpretation is placed on the decision in Russ v. Russ that a Muslim male can
dissolve his marriage to a Christian female solemnized under the British Marriages Act, 1949, by
pronouncement of talaq, it would not be very helpful in the case for the question still remains whether the
personal law of the respondent was not in this respect displaced by the provisions of the Divorce Act, 1869.

The next case cited from the bar is Farooq Leivers v. Adelaide Bridget Mary (P L D 1958 Lah. 431) in which
a learned Single Judge of the High Court of West Pakistan at Lahore found that the only reasonable inference
which could 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. The Divorce
Act, 1869, was, however, found to be a bar and in this connection the learned Single Judge referred to the
decision in Mir Anwaruddin's case which by virtue of section 7 of the Act was considered to be applicable to
India and Pakistan in that it enjoins the Courts to give relief on principles as nearly as may be conformable to
the principles on which the Courts for Divorce and Matrimonial Causes in England for the time being acts
and gives relief. The other judgments cited from the bar had no direct or indirect bearing on the points arising
for determination in the case.

Mr. Khalid M. Ishaq the learned counsel for the respondent maintained that the Divorce Act, 1869, should not
be read so as to limit the right of a Muslim husband to dissolve his marriage to a non‑Muslim wife by
pronouncing of talaq, but was unable to cite any authority in support of his view. He drew our attention to
Mabsut, Vol. V, p. 51; Bab‑un‑Nikah Ahl‑ul‑Harb, Kitab‑ul-Amr, Imam Sha'afi Vol. V, page 157,
Fatawa‑i‑Alamgiri, Vol. I, page 384, Fatwa Kazi Khan, Vol. I, page 384, Ruddul Mukhtar, Vol. II, page 448
and Shart‑un‑Nikah and certain other text books on Muslim law in support of the proposition that a Muslim
husband can dissolve his marriage with a Kitabia wife by pronouncement of talaq, but as seen above there is
no dispute with this proposition. A. R. Changez, J., in Farooq Leivers v. Adelaide Bridget Mary has placed
this rule on a much more firm ground by observing that 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 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" He, however, felt constrained to remark that
on the other hand the Courts in Pakistan cannot recognize such a talaq, in view of the provisions of the
Divorce Act, 1869 and other existing laws.

The learned counsel next maintained that as no special ceremony or rites are prescribed for solemnizing a
marriage under Muslim law the marriage between the parties performed before the Marriage Registrar in
London can be assimilated to a Muslim marriage. The contention has been examined earlier, but it will bear
repetition to observe that there is a real distinction between a marriage performed under the British Marriage
Act, 1949, or the Christian Marriage Act, 1872, for it is "the voluntary union for life of one man and one
woman to the exclusion of all others" and a marriage under Muslim law based on a contract which can be put
to an end by the husband unilaterally and by the wife through the intervention of the Court. Although it is not

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conclusive of the matter, yet it is relevant to mention that under the Christian Marriage Act, 1872, which is
complementary to the Divorce Act of 1869 a person professing the Christian faith alone can be appointed
Marriage Registrar. How can the two marriages, therefore, be treated alike in the matter of conferring a
personal status on the husband and wife? A marriage performed under either of the two Acts is, therefore, a
Christian marriage and on no principle can it be deemed to be a Muslim marriage for the purposes of
dissolution by pronouncement of talaq. Another view is that since a Muslim marriage is a contract freely
entered into by the spouses the husband would not be permitted to resile from the most important condition
of the contract, namely, that the marriage is a union for life liable to be dissolved only by intervention of a
Court.

In conclusion I would hold that the marriage between the parties solemnized on 23rd May 1959,
under the British Marriage Act, 1949, in London subsisted and was not dissolved by pronouncement of Talaq
and service of notice by the respondent under section 7 of the Family Laws Ordinance on the Chairman of the
Union Council, P. E. C. H. S. Karachi. The order of the District Magistrate confirming the order of
maintenance made by the Magistrate of the Police Court Metropolis London dated the 3rd January 1963,
must therefore be restored and the order dated the 23rd November 1965, of the High Court whereby that
order was cancelled set aside. The appeal is allowed in these terms with costs.

S. A. RAHMAN, J.‑This appeal by special leave raises the question of validity of the dissolution of a
marriage solemnized under the English Marriage Act, 1949, in London, between a Muslim Pakistani citizen
and a Christian Spanish woman, by means of a talaq, as permitted by Muslim law to the husband. The
question is founded on the following circumstances.

The appellant Marina Jatoi, married the respondent, Nur‑ud‑Din K. Jatoi, under the Marriage Act,
1949, before a Registrar of Marriages, in England, on the 23rd May 1959. Apparently they lived together
there and a son was born to them on the 28th of October 1959. The respondent returned to Pakistan in 1960,
without his wife. Here, he married a Swedish lady, in 1961, after she had been converted to Islam. This was,
therefore, apparently a marriage under Muslim Law. The respondent sent to his wife a letter of divorce, on
the 11th May 1961.

The appellant applied for legal custody of her son and maintenance for herself and her child, to the
Domestic Proceedings Court, Chelsea, London. The letter of divorce sent by the respondent was exhibited in
those proceedings but not accepted. On the 3rd of January 1963, she was awarded custody of the son and
granted £5 per week for herself and 50 Shillings per week for her child, as maintenance.

This order was transmitted to Pakistan and registered in the Court of the District Magistrate, Karachi, under
the Maintenance Orders Enforcement Act, 1921. It was confirmed by the District Magistrate, Karachi, on the
4th of April 1964, after notice to the respondent who made no effort to oppose the confirmation.

Nothing was, however, remitted to the appellant by way of maintenance. She waited for about a year
and then came over to Pakistan seeking enforcement of her maintenance order. While she was here, on the
18th July 1965, the respondent sent her another notice of talaq in writing, endorsing a copy to the Chairman
of the Local Union Council, as required by section 7 of the Muslim Family Laws Ordinance, 1961. He then
applied to the District Magistrate, praying that the maintenance order passed against him be rescinded as he
had divorced the appellant. After 90 days had elapsed from the date of notice mentioned in section 7 of the
Muslim Family Laws Ordinance, he gave another application to the District Magistrate repeating his prayer
on the ground that the talaq had become final. The District Magistrate dismissed his application by order
dated the 23rd of November 1965.

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The order of the District Magistrate was called in question on behalf of the respondent, by means of a
revision petition in the High Court of West Pakistan, Karachi Bench. On the 3rd of June 1966, the High Court
gave effect to the respondent's plea, holding that the divorce had become operative and cancelled the
maintenance order in favour of the appellant.

We have heard Mr. Ijaz Hussain Batalvi for the appellant and Mr. Khalid M. Ishaque for the respondent, The
learned Advocate‑General, West Pakistan, addressed us on behalf of the State.

On behalf of the appellant, it is contended that the marriage of the parties in London was a Christian
marriage, embodying the idea of one wife for life, to the exclusion of all others and could not, therefore, be
dissolved by the unilateral act of the respondent by means of a talaqnama. It is urged that the marriage could
only have been dissolved by a decree of the competent Court.

Under the rules of Private International Law, the lex loci celebrationis, as such has nothing to do with
the question of divorce which is a matter solely for the law that happens to be the ex domicili of the parties, at
the time of the suit. This may very well be different from the law that governed the solemisation of the
marriage. Reference in this connection may be made to Private International Law by Cheshire, Sixth Edition.
At p. 305 of his book, the learned author describes the view taken in Hyde v. Hyde (1866 L R 1 P & D 130),
to the effect that in English Law, a marriage must be a Christian Marriage in the strict sense as understood by
the Western Church, as anachronistic. He points out that the original doctrine of the Church was that marriage
was dissoluble only by death. The doctrine of non‑dissolubility has, however, long been abandoned by
English Law and the only Christian characteristics, now demanded, are that a marriage should be
monogamous and that it should be a union for life in the sense of not being limited in duration. It is a
Christian marriage according to English Law if it is potentially for life. Again at p. 309, the learned author
expresses himself as follows:‑----

"The final question is‑What law determines whether a marriage is monogamous or polygamous? If,
for instance, a woman domiciled in England marries a Muslim in London, intending to live with him
in Pakistan where he is domiciled, is the character of the marriage determinable by English law as
being the lex loci celebrationis or by the Pakistani law of the matrimonial domicile?"

He then examines the orthodox view that a marriage celebrated before an English public officer must always
be understood to be monogamous one, even though a party to it may be a person who in his own country,
could have contracted a polygamous marriage. This was the opinion, inter alia, expressed by Westlake
(Bentwick) in his Private International Law, Seventh Edition. In the opinion of Prof. Cheshire, this view is
not in accordance with principle. He observes that there is no doubt that the lex loci celebrationis alone
determines the formal validity of the marriage. If two parties go through a ceremony of marriage in London
in the manner provided by English Law, they become husband and wife, but the instant problem is not
whether they are so related, but what is their position vis‑a-vis each other, once that relationship has been
created. This is a question of status, of the essential validity of the marriage, with which the lex loci
celebrotionis as such, has nothing whatsoever to do. He then quotes the observations of Lord Selborne in
Harvey v. Farnie ((1882) 8 A C 43 at p. 50). They may be reproduced with advantage :---

"When a marriage has been duly solemnized according to the law of the place of solemonisation, the
parties become husband and wife. What is the character which the wife assumes? She becomes the
wife of the foreign husband in the case where the husband is a foreigner to the country in which the
marriage is contracted. She no longer retains any other domicile than his, which she acquires. The

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marriage is contracted with a view to that matrimonial domicile which results from placing herself by
contract in relation of wife to the husband whom she marries, knowing him to be a foreigner,
domiciled and contemplating permanent and settled residence abroad. Therefore, it must be within the
meaning of such a contract . . . . . that she is to become subject to her husband's law, subject to it in
respect of the consequences of the matrimonial relation and all other consequences depending upon
the law of the husband's domicile."

The author goes on to explain that the expression "essential validity of marriage" is comprehensive enough to
include the character of a marriage as being, for instance, void or voidable, or polygamous as opposed to
monogamous.

In support of this proposition, the learned author cites the opinion of Lord Brougham in Warrender v.
Warrender ((1835) 2 Cl. & F 08 & 535). Lord Brougham said:

"An Englishman, marrying in Turkey, contracts a marriage of the English kind, that is, excluding a
plurality of wives, because he is an Englishman and only residing in Turkey and under Mohammedan
Law, accidentally and temporarily, and because he marries with a view of being a married man and
having a wife in England and for English purposes; consequently the incidents and effects, must by
the very nature and essence, be ascertained by the English and not by the Turkish law."

He then quotes the observations of Denning, L. J., as he then was,' in a recent case, from which the following
extract may be considered pertinent in the present case:‑--

"So also, if she (an English woman domiciled in England) while in England, marries a man of a
polygamous race, intending to go to live with him in his homeland, knowing what marriage means in
that country, there would be no condition that it should be monogamous and the marriage would not
be made on that basis:; and she could not complain if he there took another wife."

It would not, therefore, seem to be correct that a marriage performed before a Registrar in England must
necessarily import the essential of monogamy.

The point has to be considered in the light of the law of Pakistan which is the law of the domicile of
the husband. The question was raised whether the marriage solemonized in England before a Registrar could
at all be assimilated to the position of a Muslim marriage so as to attract the provisions of the Muslim Law
regarding its dissolution.

That a Muslim can lawfully marry a Christian woman is clearly stated in the Quran. A woman of the
scriptural sects is permissible as wife to a Muslim. A learned single Judge of the High Court of West Pakistan
in Farooq Leivers v. Adelaide Bridget Mary observed that a Muslim cannot only marry a kitabia woman, e.g.,
a Christian, but also divorce her by talaq, under pure Muslim law. In that particular case, however, the learned
Judge thought that Courts in Pakistan could not recognise such a talaq in view of the provisions of the
Divorce Act IV of 1869 and the Christian Marriage Act, 1872. There being a conflict between the personal
laws of the parties to the suit, it was held that the dictates of justice, equity and good conscience stood in the
way of the grant of a decree, declaring that the marriage of Farooq Leivers with the respondent in that case,
had been ended by talaq.

Syed Ameer Ali in his Mahommedan Law, Vol. II, 1965 Ed. at p. 139, states the relevant law in these
terms: "A marriage between a Muslim and a non‑Muslim, solemnized in a foreign country, is valid under the

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Mahommedan Law, if it is performed in accordance with the requirements of the lex loci contractus or the
rites of the communion to which the wife belongs. In this respect, the principle of Mahommedan Law
coincides with the English Law." In respect of the form, the Hanafi Muslim Law by which the respondent
presumably is governed, only requires that there should be a declaration and acceptance of marriage by the
couple, at one and the same meeting, in the presence of witnesses. This procedure is ensured by the Marriage
Act, 1949. The Muslim Law prescribes no specific ceremony for the performance of a marriage and no
religious rites are necessary for contracting a valid marriage. The subject is discussed in section III of Ameer
Ali's Mahommedan Law, Vol. II, p. 255 et seq. Among the older juris consults, Sarkhasi in his "Al‑Mabsoot"
and Imam Shafei in his "Kitabul Umm" have expressed similar opinions. The latter in particular specifies
that in respect of duties of the husband towards her, the Christian wife's position is in no way different from
that of a Muslim wife. It is, therefore, correct to say that the marriage of the parties in this case solemnized
before a Registrar in England, according to the procedure laid down in the Marriage Act, 1949, conforming
as it does to the above requirements, would be recognised as valid, under Muslim Law.

It is argued on behalf of the appellant that even if we have regard to the Pakistan law, the Divorce Act,
1869 and the Christian Marriage Act, 1872, taken together, constitute a complete scheme of law governing all
incidents of marriage, where one party to the marriage is a Christian. The contention rests really on the
supposed implications of these Acts and not on any express provision contained therein, it is stated that under
the Christian Marriage Act, if one of the parties to the marriage is a Christian, the marriage has to be perforce
solemnized, under that Act, on pain of its being declared void otherwise. Certain marriages are exempted
from the relevant provisions in the Act but they do not concern us here. However there is no provision in
these two Acts, which in express terms, prevents a Muslim husband of a Christian woman, from having resort
to his own personal law, for the purpose of the dissolution of the marriage. The provisions of the two Acts no
doubt provide a machinery for dissolution of marriage through Court, but there is nothing in them to show
that the procedure prescribed therein for that purpose is to be regarded as exclusive.

So far as the Muslim husband is concerned, the Muslim Personal Law on the subject of marriage,
would clearly be applicable to him. In the absence of special custom or usage to the contrary, according to
section 3 of the Punjab Laws Act, 1872, the law applicable to a Muslim, in respect of questions relating to his
marriage, would be the Muslim, Personal Law. Again, the Family Laws Ordinance, 1961, applied to all
Muslim citizens in Pakistan wherever they may be. If a Muslim husband is married to a Christian woman in a
form recognised by Muslim law, or to a non‑citizen Muslim woman, there is no reason why the provisions of
section 7 of this Ordinance, should not apply, if he wants to divorce his wife by talaq. It is significant that in
the various Muslim Personal Law (Shariat) Application Acts (the latest of the series being the West Pakistan
Muslim Personal Law (Shariat) Application Act, 1962) the relevant provisions are specifically made
applicable where the parties are Muslims. This formula is not repeated in any section of the Muslim Family
Laws Ordinance, 1961, which is apparently designed to cover "every marriage solemnized under Muslim
Laws" as is said in section 5 thereof. Section 7 of the Ordinance prescribes that as soon as may be, after the
pronouncement of the talaq in any form whatsoever, the husband shall give to the Chairman of the Union
Council, notice of his having done so and supply a copy thereof to the wife. The talaq thus pronounced,
unless revoked earlier, expressly or otherwise, shall not be effective until the expiry of 90 days from the day
on which notice under subsection (1) of this section is delivered to the Chairman. In the meantime, it is
provided that an Arbitration Council shall be set up by the Chairman, for the purpose of bringing about
conciliation between the parties. It is only if these efforts fail within the 90 days' period allowed, that the
talaq would become effective. I do not find anything in this Ordinance which rules out the possibility of an
application of its provisions to a Muslim husband married to a Christian wife, in regular form.

As was pointed out in Ali Naivaz Gardezi v. Col. Muhammad Yusuf (P L D 1963 S C 51) by this

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Court, even the latest judicial trend in England favours the principle that if the law of the domicile permits a
dissolution of marriage solemnized in England by the pronouncement of talaq, the divorce may be recognised
as valid, under the rules of Private International Law.

The earlier dicta in other cases were undoubtedly to the contrary. For illustration of the old orthodox
view Collis v. Hector (L R (1875) 19 Equity Cases 334); Hammersmith Superintendent Registrar of
Marriages, Ex parte Mir Anwaruddin ((1917) I K B D 634) and Maher v. Maher ((1951) 2 All F F R 37) may
be seen.

The previous case‑law on the subject was reviewed in Russ v. Russ ((1962)3AER193). In that case the
facts were that in 1913, Esther Mary Rosser, an English spinster, married at a Registrar's office, in England, a
Mohammedan domiciled in Egypt, Rassan Darweesh by name. After the ceremony, they went to Egypt where
they also went through a Mohammedan ceremony of marriage. In 1932, this marriage was dissolved,
according to Mohammedan Law, by a talaq divorce, in the presence of Esther and of witnesses and before an
officer of the Court and was enrolled in the Court's records. Later in that year, an order was made by the
Egyptian Court for the support of Esther by her former husband. In 1942, Esther went through a ceremony of
marriage in Cairo with Russ, according to the rites of the Church of Scotland. In subsequent proceedings in
which the validity of Esther's marriage in 1942 was impugned, evidence was given, establishing that by
Muhammedan Law, which in 1932, was the law of Esther's domicile the talaq divorce carried out formally as
it had been, was effective, to dissolve any marriage of whatsoever nature. It was held that the English Courts
would recognise as valid the marriage of Rules in 1942 in Egypt, as it could not be said that the divorce by
talaq in 1932, granted to Esther was invalid. This was despite the fact that the divorce was not accompanied
by a formal judicial pronouncement. It was added that this was not a case in which the Court in its discretion
should withhold recognition of the law of the domicile, by which Esther was married in 1942.

The learned Judges, who decided that case, were pressed with the previous decision of the Court of
Appeal in the Hammersmith case, which was supposed to be binding on them. The case was, however,
distinguished on several grounds, but reading between the lines of the judgments of the learned Judges, it
appears that the correctness of the decision in the Hammersmith case was really regarded as doubtful. It was
held to be confined to the facts of that case. As Donovan, L. J. elucidated in the course of his judgment, the
point arising for decision in Russ v. Russ was the same as was decided in the Hammersmith case. The
following extract from his judgment is illuminating:‑

"For the foregoing reasons, I reached the conclusion that this Court is not bound by the decision in the
Hammersmith case to decide that the talaq (divorce), pronounced against Esther, was ineffective in
English law, to dissolve her English marriage. It is of course tempting to say that what the Courts here
were considering in the Hammersmith case, was the validity of a proposed second marriage in
England, whereas we are now considering the effect of a talaq decree obtained in Egypt on an existing
English marriage, and to distinguish the present case on that ground. But in my opinion to do so,
would be to avoid the issue. In terms of the relevant statute, the question in the Hammersmith case
was whether there was any lawful impediment to the proposed second marriage. The answer
depended on whether Dr. Anwaruddin was married already in other words, on his status. In turn that
depended on whether English law would recognise his talaq divorce. In the present case, the issue is
whether the husband Edwin Russ, was already married when he purported to marry Leonia de Waela
in Belgium, in 1945, and that depends on whether Esther was still a married woman when she earlier
purported to marry Russ in 1942. In turn that depends on the efficacy of the talaq divorce to dissolve
Esther's previous English marriage. So at "bottom the question is really the same as in the
Hammersmith case, and cannot be avoided by relying on the distinctions in the surrounding facts."

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The learned Judge quoted with approval what he described as "the normal rule" formulated by Lord Selborne,
L. C. in Harvey v. Farine ((1882) A C 50) in this context, and upheld the plea that the talaq (divorce) of 1932
was effective to dissolve Esther's English marriage of 1913, with Hassan Darweesh. Some of the other
Judges, however, tried to distinguish the Hammersmith case on the ground that there was no judicial
proceeding in that case.

At page 400 et seq of his book, Prof. Cheshire deals with the question whether an extra judicial foreign
divorce would be recognised in England. He has expressed the opinion that a divorce obtained in, or
according to the law of, a foreign domicile, even though obtained without contentious proceedings and even
though it dissolves a marriage solemnized in England, between British subjects, must be recognised by the
Courts of England, since it satisfies the general principle that alteration of status are governed by the lex
domicili. He observes that it is that law which decides, inter alia, whether the status shall cease, and it is
difficult to agree that its termination, by some process adequate according to the personal law, should be
disregarded, merely because it has been effected in a manner alien to English, conceptions and practice.
Again, he remarks: "If the cause for divorce is immaterial to its recognition in England, as the authorities
indubitably establish, why should its method, judicial or extra‑judicial, be material."

The decision in the Hammersmith case has also been criticised by Prof. Cheshire in his book at p. 402
et seq. In that case, Dr. Anwaruddin, a Muhammadan, domiciled in India, married a domiciled English
woman in England, with English formalities. He later sent her a written declaration of divorcement, called
talaqnama, by which he purported to dissolve the marriage. The question before the King's Bench Division,
and later before the Court of Appeal was whether the talaqnama was effective, in England, to dissolve the
marriage. The six Judges unanimously held that it was not. This repudiation of the lex domicili, the learned
author points out, was based on two main reasons: (1) that English law will not recognise a foreign divorce,
unless it has been decreed by a Court of law and (2) that the marriage in the case solemnized in England was
not a marriage in the Muhammadan sense at all and, therefore, it could not be dissolved in the Muhammadan
manner.

With regard to the first point, Prof. Cheshire maintains that the insistence upon a judicial proceeding,
scarcely harmonizes with the attitude consistently adopted by the Privy Council towards Jewish divorces. He
refers, as illustration, to Sasson v. Sasson ((1924) I A C 1007). Although the parties to those cases were Jews,
yet the principle was laid down in them that, if according to the law of the domicile, a divorce without
judicial proceedings was recognised as valid, it should be given effect to, in the English Courts. Judicial
intervention, as Prof. Cheshire states, is not an inherent virtue nor is it universal. He expresses the opinion
that the second reason given by Judges of the Hammersmith case, was a more intelligible one. The decision
in Har‑Shafi v. Har‑Shaft ((1953) 2 A E L R 373) however settled the principle of law on this point,
according to the learned author. That case related to Jewish form of divorce being recognised as the basis of
the law of the domicile.

It is also stated in Dicey's Conflict of Laws, Seventh Edition, at p. 307, that:

"In spite of earlier dicta to the contrary, it is now clear that English Courts will recognise non‑judicial
divorces, obtained unilaterally by one party to the marriage, in accordance with a religious law (e.g. a
Jewish ghet), provided the parties are domiciled in a country, the territorial laws of which permit such
a method."

This position was accepted by this Court in AU Nawaz Gardezi's case though in that particular case it was

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found that there had been factually no divorce pronounced by the husband, or alternatively, that if he had
done so, it was not valid under the relevant law.

A pertinent factor to note in this context is that divorce by talaq is now regulated in Pakistan by the procedure
prescribed in the Muslim Family Laws Ordinance, so that it no longer remains a purely private unilateral act
of the husband. The matter does go before a public authority before it receives finality.

The argument based on the fact that the Pakistan Christian Marriage Act, 1872, invalidates a marriage
between a Christian and another, unless solemnized under that Act and, consequently, M it could only be
dissolved under that Act, read with the Divorce Act, 1869, does not appear to be available in the present case
where the marriage took place in London under the English Marriage Act, 1949, which contains no analogous
provision.

The statement in Halsbury's Laws of England, Vol. 7, Third Edition, p. 112, para. 200, read with Note
(q) to the effect that a marriage contracted in England, is not dissolved by mere operation of the law of the
religion of the husband and without decree from a Court of Law, is also based on the older decisions and does
not take account of the recent judicial trends in England as evidenced in Russ v. Russ.

In a more recent decision, reported as Attorney‑General of Ceylon v. Reid (1965 L R 720) the Privy
Council has held that a Christian monogamous marriage contracted in Ceylon, did not prohibit for all time,
curing the subsistence of that marriage, a change of faith and of personal law, on the part of a husband,
resident and domiciled there. He had an inherent right to change his religion and personal law and so to
contract a valid polygamous marriage, if recognised by the laws of Ceylon, notwithstanding an earlier
subsisting marriage. If such inherent right was to be abrogated it must be done by statute and there was none
in the case of Ceylon. Accordingly, the decision of the Supreme Court of Ceylon, setting aside the conviction
for bigamy, of the respondent, Raid, was upheld. The decision is not directly in point but may be referred to
by way of analogy. It was contended in that case that: "A person who enters into a monogamous Christian
marriage not only enters into a contract but acquires as a result the status, recognised throughout
Christendom; that it must be the voluntary union for life of one man and one woman to the exclusion of all
others and that status cannot be changed and no new marriage of any sort can be contracted by either spouse,
until the marriage is dissolved by a procedure recognised as applicable to monogamous marriages, even if
both parties change to the Muslim religion." It was represented that this argument would be strengthened
where the change of faith is unilateral on the part of the husband only. These contentions were negatived.
Their Lordships referred with approval, in this context, to an Indian decision, reported as Datta v. Sen (I L R
(1939) 2 Cal. 12). This was a succession case but the question for decision was whether an Indian Christian,
who became converted to Muhammadanism, could take a second wife, while his first Christian wife was
alive. In that case Henderson, J. bad said:‑-

"In our view, as he was entitled to contract this marriage under the Muhammadan Law, it must be held
to be a valid marriage, unless there is some statute which invalidates it. Mr. Sen was not able to put
forward any such provision; nor can we find anything either in Act XV of 1872 or in the Indian
Divorce Act, which would expressly invalidate this marriage. The result is that, in our opinion,
Dukhiram did contract a valid marriage with Alfatanessa."

The Privy Council further observed that this authority was entitled to great weight in so far as the position in
Ceylon was similar to that in the former territories of British India. The observations of Sir Jocolya Simon P.
in Cheni v. Cheni ((1962) 3 All E R 87) that "after all, there are no marriages which are not potentially
polygamous, in the sense that they may be rendered so, by a change of domicile and religion on the part of

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the spouses" were "noted with interest" in that case.

In the instant case too, the right of the Muslim husband to grant a divorce to his wife, in respect of the
marriage recognised by Muslim law, does not appear to have been taken away, by any statute current in
Pakistan. In the circumstances, I have reached the conclusion that the talaq given by the respondent has
become effective.

The consideration was put forward that this puts an end to the maintenance allowance granted to the
appellant by the London Court and this would entail hardship for the wife. As the case is being decided on
the footing that the Muslim husband was entitled to treat the marriage as one governed by Muslim law, the
wife would in her turn have the right to claim dower from him, although no dower had been fixed initially, at
the time of the marriage. The dower in such circumstances would be assessed as mahr‑ul‑misl, that is the
dower which would be payable to a woman of a similar status and circumstances. The discussion of this
question at p. 395 et seq of Ameer Ali's Muhammadan Law, Vol. II, 1965 Ed. would be instructive in this
respect. It is, therefore, not correct that the wife would be left without any remedy in this behalf. Moreover,
the respondent would be still liable to maintain his child.

I would, therefore, dismiss the appeal, but, in the circumstances of the case, would leave the parties to bear
their own costs.

A. R. CORNELIUS, C. J.‑I agree.

FAZLE‑AKBAR, J.‑I agree.

HAMOODUR REHMAN, J.‑I entirely agree.

In accordance with the view of the majority the appeal is dismissed, but in the circumstances of the case we
leave the parties to bear their own costs.
A. H. Appeal dismissed.

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