P L D 1953 Lahore 112 (PLP)

MUHAMMAD JAN, J.‑

This is a first appeal from the order of the Guardian Judge, Rawalpindi, dated the 13th February 1952. The marriage between the parties took place on 16th October 1934 in Badshahi Mosque, Lahore, according to Muslim rites. The appellant, who is employed as a doctor in the Female Section of the Cantonment General Hospital Rawalpindi, was a Christian at the time of the marriage and is still a Christian. The respon dent was and is a Muslim. They have three children, namely. Talat Suraya Jabin, born on 27th September 1935, Qazi Iftikhar Hussain born on 17th September 1937, and Rehana Jabin, born on 24th September 1942. A few years after the birth of the last-mentioned child, the relations between the parties became unpleasant and on 26th August 1950 appellant filed a suit for divorce under the Dissolution of Muslim Marriages Act of 1939. On 20th November 1950, the respondent filed a petition for guardianship of the three children named above. The appellant's suit for dissolution of marriage was dismissed on 13th February 1952. The respondent's petition for guardianship was accepted on the same day. The appellant filed no appeal against the order dismissing her suit for dissolution of marriage. She has appealed against the order granting custody of the children to the respondents. She applied to this Court for stay of the above‑mentioned order pending decision of this appeal and her prayer was accepted on 29th February 1952. The trial Court has given a finding that the appellant was a Christian and the respondent was a Muslim at the time of the marriage and the question has arisen whether this was a valid marriage and the father was entitled to the custody of the children. If the marriage was void the children would be illegitimate and, according to paragraph 358 of Mulla's Muhammadan Law, 13th Edition, the custody of illegitimate children belongs to the mother and her relations, not to the father. According to section 4, Christian Marriage Act of 1872, as adapted by Adaptation of Central Acts and Ordinances Order, 1949, (G. G. O. 4 of 1949), 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 those provisions shall be void. Section 5 lays down that 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 the 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. It appears from the above‑mentioned rules that the only way in which the marriage of the parties to this case, performed by the Imam of the Badshahi Mosque, who was not a Minister of Religion licensed under this Act, could have been validated was that it should have been performed in the presence of a Marriage Registrar in accordance with the provisions of clause (4) of section 5 of the Act. According to section 7 of the Act, the Provincial Government may appoint one or more Christians, either by name or as holding any office for the time being, to be a Marriage Registrar or Marriage Registrars for any district subject to its administration. Where there is only one Marriage Registrar in a district and such Registrar is absent from such district, or ill, or when his office is temporarily vacant, the Magistrate of the district shall act as, and be Marriage Registrar thereof during such absence, illness or temporary vacancy. There was no Christian Marriage Registrar nor District Magistrate present at the time of the marriage between the parties and the marriage appears to have been performed in a manner contrary to the provisions of section 5 (4), Christian Marriage Act. According to section 68 of the Act, whoever, not being authorized by section 5 of this Act to solemnize marriages, solemnizes or professes to solemnize, in the absence of a Marriage Registrar of the district in which the ceremony takes place, a marriage between person one or both of whom is or are a Christian or Christians, shall be punished with imprisonment which may extend to ten years or, in lieu of a sentence of imprisonment for seven years or upwards, with transportation for a term of not less than seven years and not exceeding ten years and shall also be liable to fine. Fortunately, for the Imam who performed this marriage the prosecution for every offence punishable under this Act must, according to section 76 of the Act, be commenced within two years after the offence is committed and the marriage in this case having taken place in 1934 there can be no prosecution of the Imam nosy. But the question whether the marriage was valid or void is important because it bears directly on the right to the children's custody. The question was considered in a case which came up before the High Court of Madras on 21st March 1871, reported on Page XX of Madras High Court Reports, Vol. VI. A Hindu priest was committed for trial on a charge of knowingly and wilfully solemnizing a marriage between persons one of whom professed the Christian religion without being authorized to solemnize the marriage under section 6 of Act V of 1865. Such conduct was made punishable by section 56 of that Act. The Sessions Judge discharged the accused on the ground that the enactment under which the charge was framed was in applicable to the celebration of a marriage according to the Hindu form by a Hindu priest, though one of the contracting parties was at the time a Christian convert. The view taken by the Sessions Judge was held to be erroneous and the priest who had solemnized the marriage between the parties of whom the woman admittedly professed the Christian religion was held prima facie liable under section 56 of the Act. It was further held that the Act expressly prohibited the performance of any form of marriage between two persons, one or both of whom professed the Christian religion, except in the manner provided by the Act. In Queen‑Empress v. Fisher (I L R 14 Mad. 342), a Full Bench of that Court held that the person who had solemnized the marriage in that case, not being authorized by the Act to do so, had committed an offence by performing the marriage in the absence of a Marriage Registrar. In Queen‑Empress v. Yahan and others (I L R 17 Mad. 391), it was held by a Division Bench of that Court that a person who performs a ceremony of marriage according to Hindu from between a Native Christian and a Hindu commits an offence under section 68 of Act XV of 1872, unless he is authorized to solemnize marriages under section 5 of the Act. The same view was taken in Revd. Father Caussavel v. Revd. Saurez (I L R 19 Mad. 273) and Queen‑Empress v. Paul and others (I L R 20 Mad. 12), In re Kolan‑Daivelu and another (I L R 40 Mad. 1030). Napier J. express ed some doubts about the correctness of the view taken in the earlier cases decided by the Mardas High Court. He, therefore, referred to a Full Bench the question where a Hindu by religion performing a marriage according to the Hindu mode between two persons either of whom is a Christian commits an offence under section 68 of the Christian Marriage Act, XV of 1872. The answer to the question given by the Full Bench consisting of Sir John Wallis, Kt., Chief Justice. Mr. Justice Oldfield and Mr. Justice Kumaraswami Sastriyar, was that all marriages of Christians, including marriages where only one of the parties is a Christian, must be per formed in one of the prescribed forms. The general effect of the Act, according to the learned Judges, made it necessary that every marriage where one of the parties is a Christian must, as a condition of validity, be solemnized in one of the forms prescribed by the Act. The question was considered by the Allahabad High Court also in Alfred Robert Jones v. Mst. Titli (A I R 1933 All. 122), where it was held that the rules in section 5, Christian Marriage Act, must be observed before the ceremony of marriage can be performed, but in a subsequent case, Emperor v. Maka Ram and others (I L R 40 All. 393), the view taken by the Full Bench of the Madras High Court In re Kolandaivelu and another (supra) was not accepted as correct and the reasoning of Napier, J., in his referring order was approved. The ratio decidendi in this case appears to have been that the party who was alleged to be a Christian in that case and who had married a Bhangi girl according to the rites of the Bhangi caste was in fact not a Christian, within the meaning of section 3 of the Indian Christian Marriage Act, although he was baptised in his infancy and had attended a Christian school. No case of our own High Court has been cited at the Bar and the decision of the point involved in this case will have very far‑reaching consequences. I consider it to be of sufficient importance to be placed before a larger Bench and submit the record to the Honourable the Chief Justice for that purpose. I suggest that the whole appeal may be decided by the new Bench. JUDGMENT MUHAMMAD JAN, J.--‑I referred this case to the learned Chief Justice by my order dated the 4th December 1952, which will form part of this judgment, with the suggestion that it may be heard by a larger Bench owing to the importance of the question whether a marriage between a Muslim and a Christian according to Islamic rites is void by virtue of sections 4 and 5 of the Christian Marriage Act of 1872, as adapted by Adaptation of Central Acts and Ordinances Order, 1949 (G. G. O. 4 of 1949). This point was raised by me for the first time during the hearing of the appeal and though the Guardian Judge has given a definite finding that the respondent was a Muslim and the appellant was a Christian at the time of their marriage in 1934, he did not apply his mind to nor did he consider the effect of sections 4 and 5 of the above‑mentioned Act. It appears that the parties to the case and their counsel also did not think of it and no issue was framed as to whether the appellant was a Christian at the time of her marriage according to Muslim rites and whether the marriage, so performed; was valid. This was a point of utmost importance and bore directly on the question whether the appellant or the respondent was the proper guardian of the minor children in this case. Moreover, it necessarily arose out of the pleadings of the parties. The respondent alleged that he and the appellant were Muslims at the time of the marriage; the appellant denied this and said that she was a Christian at the time of marriage and was still a Christian. Only two issues were framed by the trial Court‑ (1) Whether the return of the minors to the custody of Dr. Tassadduque Hussain, their father, would be for their welfare? (2) Should the petitioner (i.e., the father who is respondent in this appeal) be appointed guardian of Mst. Rehana Jabin and would it be for her welfare? None of these issues relates to the assertion by the appellant and denial by the respondent that the appellant was a Christian at the time of her marriage with the res pondent If the appellant was a Christian and the marriage was void, according to sections 4 and 5 of the Christian Marriage Act, the respondent had, probably, no right of guardianship over his children. According to paragraph 358 of Mulla's Muhammadan Law, 13th Edition, the custody of illegitimate children belongs to the mother and her relatives; not to the father. The learned counsel for the respondent argued that according to the Islamic Law a Muslim man can marry a Christian woman and there is nothing in the Islamic Law to prevent such a marriage from being solemnized according to the Muslim rites. He was, however, unable to give and reply to the objection that, according to section 5 of the Punjab Laws Act, in questions regarding marriages etc. Muhammadan Law shall be the rule of decision where the parties are Mohammedans except in so far as such law has been altered or abolished by legislative enactment. The Christian Marriage Act is a legislative enactment which has made a material alteration in the form according to which a Muslim can lawfully marry Christian woman. The counsel for respondent further argued that according, to section 2 of the Dissolution of Muslim Marriage Act of A 1939 a woman married under the Muslim Law can obtain a decree for dissolution of marriage on any one or more of the grounds mentioned in that section. From this he inferred that a woman Christian or non‑Christian, can be married to a Muslim under the Muslim Law and can claim a dissolution of marriage under the Dissolution of Muslim Marriages Act. That is correct, but it appears from the provisions of section 5 clause (4) of the Christian Marriage Act that such a marriage must be performed in the presence of a Marriage Registrar appointed under the Act. Otherwise, the marriage would b void according to section 4 of the Act and no one can ask for the dissolution of a marriage that does not exist. These points, which are essential for the determination of this case, have not been considered in the judgment under appeal. We therefore, set aside that judgment and order the lower Court to frame and try the issue whether the appellant was a Christian at the time of her marriage with the respondent and, if so, whether the marriage was not void in view of the provisions of sections 4 and 5 of the Christian Marriage Act. The Court shall also frame an issue and decide whether the children born of this marriage are legitimate and, if not, who is the proper guardian of illegitimate children. The Court will dispose of the respondent's application by a fresh order. We make no order as to costs. A. H. Case remanded.