1975 P Cr (PLP)

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

4. Marriages to be solemnized according to Act.‑Every marriage between persons, one or both of whom is (or are) a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section ; and any such marriage solemnized otherwise than in accordance with such provisions shall be void.

5. Persons by whom marriages may be solemnized.‑Marriages may be solemnized in Pakistan‑ (1) by any person who has received episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of which he is a Minister ; (2) by any Clergyman of the Church of Scotland, provided that such marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of Scotland ; (3) by any Minister of Religion licensed under this Act to solemnize; marriages ; (4) by, or in the presence of, a Marriage Registrar appointed under this Act ; (5) by any person licensed under this Act to grant certificates of marriage between Native Christians.

60. On what conditions marriages of Native Christians may be certified.‑--Every marriage between Native Christians applying for a certificate shall, without the preliminary notice required under Part III, be certified under this Part, if the following conditions be fulfilled, and not otherwise‑ (1) the age of the man intending to be married shall exceed sixteen years, and the age of the woman intending to be married shall exceed thirteen years ; (2) neither of the persons intending to be mart‑fed shall have a wife or husband still living ; (3) in the presence of a person licensed under section 9 and of at least two credible witnesses other than such person, each of the parties shall say to the other I call upon these persons here present to witness that I, A, B, in the presence of Almighty God, and in the name of our Lord Jesus Christ, do take thee, C. D., to be my lawful wedded wife (or husband) or words to the like effect: Provided that no marriage shall be certified under this Part when either of the parties intending to be married has not completed his or her eighteenth year, unless such consent as is mentioned in section 19 has been given to the intended marriage, or unless it appears that there is no person living authorized to give such consent." Learned counsel argued that whether judged from the point of view of section 4 or section 60, the girl, who according to him was a (minor) Christian at the relevant time, could not have been married to the respondent. He further submitted that the respondent had been getting the statements of the girl recorded at various places before various Magistrates to whom the background of the case was never disclosed and who seriously made no effort to find out the real age of the girl and before whom the girl made tutored statements. These statements he submitted were procured to create defence by the respondent to show that it was all the girl's own doing through and through and that he was quite innocent in all matters in all respects and at all stages, even though he took away the girl on 26‑2‑1975 from the Court of a Magistrate when he had no right or authority to do so. Learned counsel in this respect also referred to Mrs. Marina Jatoi v. Nuruddin K. Jatoi and another (P L D 1967 S C 580) where at page 592 Muhammad Yaqub Ali, J. (with whom, according to the learned counsel, the other noble Lords did not differ on this particular point) observed that, "the above examination of the relevant provisions of the British Marriage Act, 1849, the Pakistan Divorce Act, 1869 and the Pakistan Christian Marriage Act brings out that a marriage between a Muslim male and a Christian female though permitted by Islam can be performed in Pakistan under Act XV of 1812 and to that extent the application of personal law stands excluded by statute". Reference was also made to the following passage in the "Outlines of Muhammadan Law" by Asaf A. A. Fyzee (Third) (1964 Edn.) where at page 172 the learned author writes as follows:‑-- "In this branch of Jurisprudence, where men and women often try to twist and mould the rules of law to suit their own selfish ends, the words of Blagden, J. must always be kept in view: `British India as a whole, is neither governed by Hindu, Mahomedan, Sikh, Parsi, Christian, Jewish or any other law, except a law imposed by Great Britain under which Hindus, Mahomedans, Sikhs, Parsis and others enjoy equal rights and the utmost possible freedom of religious observance, consistent in every case with the rights of other people. I have to decide this case according to the law as it is, and there seems, in principle, no adequate ground for holding that in this case Mahomedan Law is applicable to a non‑Mahomedan.‑Robaba Khanum v. Khodadad Bomanji Irani (1946) 48 Bom. L R 864, 869.' After quoting the above case the learned author states "these principles enunciated by an English Judge in a British Indian Court would apply equally in India and Pakistan". The learned counsel further submitted with reference to Mst. Alfat Bibi and another v. The State (P L D 1972 Lah. 121) that the minor girl having been removed, enticed or taken away from the custody of her lawful guardians without their consent, the offences under section 363/366, P. P. C. etc. were complete and any subsequent "events" or "retention" or "manipulations" by the respondent A. S. I. could not take him out of the clutches of law. The marriage, he argued, was also a hoax and a mere paper transaction, where the age of the girl and the address of A. S. I. are wrongly given, various columns of "Nikah Nama" Exh. D/5 were deliberately left blank and the document was prepared to cover the offences of kidnapping/abduction etc. after stealing knowledge of the preparation of this petition and all this game or drama was allegedly played in Mandi Faizabad (Dhota Mandi) in Teksil Nankana Sahib District Sheikhupura even though the A. S. I. resided in Lahore. He submitted that it was doubtful whether the A. S. I. was in Dhoka Mandi on the relevant date because, he left charge of his post in Lahore only on 13‑3‑1975‑(and on 11‑3‑1975, the alleged date of marriage, he is supposed to be in Lahore). The Nikah Nama, like the Sanad of conversion, it was argued, was a back‑dated document.

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

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

06. Her referred to Verse 3 of which is to the effect :‑ (you can marry any woman whom you prefer) ; Mohammad Abdur Rahman Almubarakpuri Col. I. P. 247; Mrs. Marina Jatoi v. Nuruddin Jatoi and another (P L D 1967 S C 580) which, according to him, favoured his view point at 597; Muslim Law by K. P. 5aksena

166. Reference was also made to Maui Ali v. Syed Safdar Hussain Shah and another ((1970) S C Ail R 437) Vol. II page 281 and finally advanced the plea that the Muslim Family Laws Ordinance (VIII of 1961) will override the statutes reliedu pon by the learned counsel for the petitioner and even if the story of conversion as pleaded is doubtful or is not believed, the respondent could marry a Christian girl of this age according to the forms and formalities of Muhammadan Law.

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

8. Since I have directed that Mst. Zarina is to remain in Darulaman only for a period of six months just as an interim measure within which period I expect the case as mentioned in the F. I R. shall be finailsed, let a copy of my order be sent to the Inspector‑General of Police to see that the aforesaid matter is not inordinately prolonged and is finalised one way or the other promptly so that the girl may know as to what is her fate or legal status. The order has been announced in the presence of Mr. J. A. Perwaiz, Advocate, who is present with the petitioner and Mr. Perwaiz Buttar, Advocate who is present with the detenu as her counsel and also in the presence of Abdul Hakim A. S. I. in order to obviate any doubts. The parties have again agreed to the above order. It has been submitted by the respondent Abdul Hakim that it should be clarified that he would be in a position to see the girl twice a week. Similar permission Mr. I. A. Perwaiz, submits, should be granted to his client, namely, Mst. Bachinoo the mother of the girl. The Darulaman authorities should not prohibit the mother and the A. S. I. Abdul Hakim from seeing the girl twice a week. The respondent has further submitted that he will pay the necessary expenses in the Darulaman monthly. Let him do that. The costs have been paid by Abdul Hakim to Mst. Bachinoo petitioner in Court. Order accordingly.