P L D 1958 (W (PLP)

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

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

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

4. Before I take up the question which is directly involved in this appeal, I think it is desirable to consider generally the effect of conversion to Islam upon the character and status of the person so converted. The learned counsel for the appellant argued that on conversion to Islam, the convert renounces all his religious and personal laws and immediately adopts the Muslim religious and personal laws. In support of his contention he relied on The Advocate‑General of Bombay v. Jumbabai and others (I L R 41 Bom. 181) where the question arose whether Cutchi Memons on their conversion to Islam, continued to be governed by their original personal law. Mr. Justice Beaman, while dealing with this aspect of the matter, observed as follows:- "On conversion to Mohammedanism, converts, no matter what their previous religion may have been, must be taken at that moment to have renounced all their former religious and personal law in so far as the latter flowed from and was inextricably bound up with their religion, and to have sub stituted for it the religion of Mohammad with so much of the personal law as necessarily flows from that religion. Thus, when the Khojas and the Cutchi Memons were converted, I take it to be an universally true proposition that, in the eye of the law, they then became subject, in every respect, to the Mohammedan and not to the Hindu law. "Whatever may have happened later, there was at the time a break, a new starting point, from which all their legal relations must be re‑adjusted." It cannot be disputed that as soon as a person embraces Islam, he at once becomes subject to the Muslim personal and religious law and is completely cut off from his past. He accepts a new mode of life and enters a new domain where his deeds, words and actions are governed by the laws of his new religion. So far as his individual personality is concerned, there cannot be any doubt about it that his future in all aspects of his life becomes amenable to Muslim law, from the moment of his conversion to Islam.

5. The more difficult question, however, is what is the effect of conversion upon other persons who hate some rights vested in them because of the character and status of the non Muslim and his religious and personal laws, before conversion. Some authority is available on the question of inheritance to the property of such a convert. It may be useful to refer to some of these cases at this stage. In Sundarammal v. Ameenal (A I R 1927 Mad. 72) it was held by the Madras High Court that the Hind daughter of the convert to Islam could not inherit his estate because no Hindu can inherit from a Muhammadan except in accordance with the provisions of Act XXI of 1850, which Act did not apply in that case. This decision was approved and followed in Chidambaram Chettyar v. Ma Nyein Me and others (A I R 1928 Rang. 179) where it was held by a Division Bench of the Rangoon High Court that a Hindu widow of a Hindu who has renounced the Hindu religion and become a Mohammedan cannot inherit the estate of her Mohammedan husband. This point appears to have been set at rest by the decision of the Judicial Committee in Mitar Sen Singh v. Maqbool Hussain Khan and others (AIR 1930 P C 251) where their Lordships, after reviewing some authorities on the point and after duly considering section 1 of Caste Disabilities Removal Act XXI of 1850, held that when once a person has changed his religion and changed his personal law, that law will govern the rights of succession of his children. Their Lordships further observed as follows: "It may of course work hard to some extent upon expectant heirs, especially if the expectant heirs are the children and perhaps the unconverted children of the ancestor who does in fact change his religion, but after all it inflicts no more hardship in their case, than in any other case where the ancestor has changed the law of succession, as for instance by acquiring a different domicile and their Lordships do not find it necessary to consider any question of hardship that may arise." This view finds further support from Amir Ali's Muhammadan Law. In Volume II of its 5th Edition, in section 11 of Chapter III, are enumerated several causes, which under the Musulman Laws, debar a person from succeeding to the estate of the propositus, notwithstanding that he may stand to the deceased in the relation of an inheriting kinsman. At page 88, it is stated as follows:- "Consequently, those who profess a different faith from Islam have no ‑title to the inheritance of a deceased Musulman. So that if a Musulman die leaving behind him an heir who does not profess the Islamic faith, he is debarred from inheriting, even though he be nearest to the deceased. For example, if a man die leaving behind him a son who is a non‑Moslem, and a grandson who is a Moslem, the son would be evicted from the succession, and the grandson would take the inheritance to the absolute exclusion of his father." At page 90, it is stated on the authority of Fatwai Alamgiri Volume VI, page 631, that under the Sunni Law a Moslem does not inherit from a non‑Moslem, nor does a non‑Moslem inherit from a Moslem. Article 125 of Institutes of Mussalman Law by Nawab Abdur Rahman, lays down that difference of religion deprives the husband of all right to inherit his wife's estate, and the wife of all right to inherit her husband's estate.' It will thus be seen that the effect of conversion to Islam brings about a complete change as regards the right of inheritance. His non‑Moslem relations, howsoever near relations they may be are completely debarred from succeeding to the estate of the convert. Although the act of conversion is unilateral, but the legal consequences which flow from it directly affect the rights of others, which but for the conversion, they are entitled to enforce under their own personal law.

6. Let us now consider the effect of conversion to Islam upon pre‑conversion marriages. In Chapter V of Book II of `Hedaya' (Second Edition) it is laid down that the marriage of an infidel couple is not dissolved by their jointly embracing the Moslem faith, unless it be a marriage within the prohibited degrees, but if one of them only be converted, a separation takes place. The conversion of the husband of a kitabia however, does not occasion separation. Article 126 of Institutes of Mussalman Law (by Nawab Abdur Rahman) provides that where the wife of a non‑Moslem embraces Islam, that faith must be presented to the husband and if he refuses, the Judge shall pronounce the dissolution of the marriage. Under the Muslim Law, a Muslim woman can only marry a Moslem. She can neither marry an idolater, nor a Christian nor a Jew, and marriage contracted with anyone of those is void. The principle which emerges from the above is that when one of the spouses embraces Islam, then on account of the difference of religion, the ends of marriage are defeated, and therefore, except in the case of a kitabia wife, the infidel party is called upon to embrace the faith and if he or she refuses to do so, the Judge must pronounce the dissolution of the marriage.

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

8. But in the case of conversion of a Hindu or a Christian wife to Islam, there appears to be consensus of judicial opinion, that if such a wife marries another person she is guilty of bigamy. It was so held in the following cases:- In the matter of the petition of Ram Kumari (I L R 18 Cal. 264), The Government of Bombay v. Ganga (I L R 4 Bom. 330), Crown v. Mst, Ruri (5 P R (Cr.) 1919), and Mst. Nandi v. Crown (I L R 1 Lah. 440). The principle that a marriage is not dissolved by the conversion of a Hindu wife to Islam is also enunciated in Sundari Letani v. Pitambari Letani (I L R 32 Cal. 871) and Budansa Rowther v. Fatima Bi (22 1 C 697). But this point has been very ably dealt with by Ormond J. in Mst. Ayesha Bibi v. Subodh Chakravarty (A I R 1949 Cal. 436). In that case, the plaintiff Mst. Ayesha Bibi had asked for a declaration that her marriage with the defendant which had been performed in accordance with the Hindu rites, had been dissolved on her con version to Islam. At the time of their marriage, both were Hindu Brahmins. Although the suit was undefended, yet the learned Judge, in view of the importance of the points involved, sought the assistance of the Advocate‑General and another well known Hindu Advocate as amicus‑curiae' and after exhaustively dealing with the questions raised, held that under Muslim Law in India, after the conversion of the wife to Islam the dissolution of marriage will follow automatically without the necessity for any presentment of Islam to the husband by either the kazi or any Judge after the expiry of the fixed period, being either wife's three menstrual periods or alternatively in certain circumstances three months and to any event after whichever period of time is longer, unless the husband has before the expiration of that period adopted Muslim faith. This decision was, however, dis sented from by Lodge J., in Sayad Khatoon v. M. Obadiah (49 C W N 745). The learned Judge held that India was not a Muhammad country and the Muhammadan Law was not the law of the land. He further observed that he could find no authority for the view that a marriage solemnized according to one personal law could be dissolved according to another personal law simply because one of the two parties had changed his or her religion. He held that it could not be just and right to grant a declaration of dissolution of marriage on the ground of conversion to Islam of one of the parties to the marriage. This view of Lodge J. was upheld and followed by a Division Bench of the Bombay High Court in Robasa Khanum v. Khodadad Bomanji Irani (A I R 1947 Bom. 272). As this point is not directly involved in the appeal before me, I refrain from expressing any opinion on it.

9. The grave issue raised in this appeal is whether the plaintiff, on his conversion to Islam, was competent to divorce his Christian wife by pronouncing the formula of talak as provided by Muslim Law. Before dealing with the question whether he was competent to do so or not, it seems necessary to find out the correct position of Muslim Law on the point involved. As regards the marriage of a Muslim with an unbeliever, the Holy Quran in Sura II (Baqara), Ayat 221, lays down the following injunction. The translation of this Ayat by Abdullah Yusuf Ali is reproduced below:- "Do not marry Unbelieving women (idolaters) Until they believe; A slave woman who believes Is better than an unbelieving woman. Even though she allure you. Nor marry (Your girls) To unbelievers until They believe; A man slave who believes Is better than an unbeliever, Even though he allure you. Unbelievers do (but) Beckon you to the Fire. But God beckons by His Grace To the Garden (of Bliss) And forgiveness, And makes His Signs Clear to mankind; Celebrate His praise." In order to explain the object of a Muslim marriage, I think I can do no better than to quote the commentary by Abdullah Yusuf Ali on this Ayat. It says: "Marriage is a most intimate communion, and the mystery of sex finds its highest fulfilment when intimate spiritual harmony is combined with the physical link. If religion is at all a real, influence in life to both parties or to either party, a difference in this vital matter must affect the lives of both more profoundly than differences of birth, race, language, or position in life. It is therefore, only right that the parties to be married should have the same spiritual outlook. If two persons love each other, their outlook in the highest things of life must be the same. Note that religion is not here a mere label or matter of custom or birth. The two persons may have been born in different religions, but if by their mutual influence, they come to see the truth in the same way, they must openly accept the same rites and the same social brotherhood. Otherwise the position will become impossible individually and socially." As regards the right to dissolve the marriage performed before conversion to Islam, the Holy Quran provides in Ayat 10 of Sura LX (Mumtahana) as follows:- Its translation by Abdullah Yusuf Ali is as follows:- "O ye who believe; When there come to you Believing women refugees, Examine (and test) them God knows best as to Their Faith: if ye ascertain that they are Believers, Then send them not back. To the Unbelievers. They are not lawful (wives) For the Unbelievers, nor are The (Unbelievers) lawful (husbands) For them. But pay The Unbelievers what they Have spent (on their dower). And there will be no blame On you if ye marry them On payment of their dower To them. But hold not To the guardianship of Unbelieving women: ask For what ye have spent On their dowers, and let The (Unbelievers) ask for What they have spent (On the dowers of Women Who come over to you). Such is the command Of God: He Judges (With Justice) between you And God is Full of Knowledge and Wisdom." The most important words of this Ayat which are relevant for our purpose are the following Abdullah Yusuf Ali has translated these words as follows: "But hold not to the guardianship of unbelieving women," while Maulvi Muhammad Ali has translated them as follows: "And hold not to the ties of marriage of unbelieving women." Abdullah Yusuf Ali in his commentary on this part of the Ayat says. "Unbelieving women in a Muslim society would only be a clog and a handicap. There would be neither happiness for them, nor could they conduce in any way to a healthy life of the society in which they lived as aliens. They were to be sent away, as their marriage was held to be dissolved; and the dowers paid to them were to be demanded from the guardians to whom they were sent back, just as in the contrary case the dowers of believing women were to be paid back to their Pagan ex -husbands." Similarly, Maulvi Muhammad Ali in his commentary says: "The state of permanent warfare maintained between the Muslims and the unbelievers did not allow of any social relationships to be established between the two parties ; hence the marriage relationships between Muslim men and unbelieving women as well as those between the Muslim women and the unbelieving men could no longer be maintained ; each party having returned the dowry, divorce, ipso facto, automatically resulted." It is, therefore, clear from the above injunctions of the Holy Quran, that the marriage tie is to be dissolved in the case of unbelievers as soon as one of the spouses is converted to Islam? Such instances are available from the life of Hazrat Umar Razi Allah Anha. In Alfarooq by Maulanan Shibli Nomani (1924 Edition) the cases of Karebta and Malekta are given at page 323, who were the wives of Hazrat Umar, before his conversion to Islam, and as they did not embrace Islam, both of them were divorced by Hazrat Umar. Similar instances are noted at page 259 of Hazins Tafsirul Quran, and at page 29 of Book 11 of Tarikhul- Uman‑al‑Islamia.

10. As regards the marriage of a Muslim with a woman whose religion is based on a revealed Book, the Holy Quran in Sura V, Ayat, 6, provides as follows (Translation by Abdullah Yusuf Ali):- "Lawful unto you in marriage are (not only) chaste women who are believers, but chaste women among the people of the Book revealed before your time." . This choice is, however, not given to Muslim women. The question, therefore, arises as to what is the effect of conversion on the earlier marriage of the convert with a Kitabia woman. The marriage is permissible under the Muslim law, and there is nothing either in the Holy Quran or in the Fiqah to suggest that such a marriage does not continue after conversion. In `Hedaya', at page 65 it is stated that the conversion of the husband of a kitabia does not occasion separation, because the marriage of a Mussalman with a kitabia being legal ab initio, its continuance is so a fortiori.' Article 127 of Institutes of Mussalman Law (by Nawab Abdur Rahman) lays down that `where the husband of a Christian or Jewish wife turns Muslim the marriage cannot be dissolved.' In the light of the above, it will thus be seen that in the instant case the respondent continued to be the wife of the plaintiff in spite of his conversion to Islam.

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

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

13. The next question which requires determination is whether the plaintiff as a citizen of Pakistan was entitled to avail of the provisions of Muslim law referred to above, in divorcing his Christian wife. As a question of pure Muslim law, the position that emerges is that he is authorised to divorce. But it remains to be decided, whether the case in hand is really governed by the provisions of Muslim law. If Muslim law was to be administered in this case, then in the view which I have taken about the matter, the case would not have presented any difficulty whatsoever. But the difficulty arises because the plaintiff is a Moslem and the defen dant is a Christian and, according to her personal law, her marriage tie is indissoluble until death or divorce obtained in accordance with the provisions of the Divorce Act IV of 1869. There is no statutory enactment governing such a contingency. Section 2 of the Muslim Personal Law (Shariat) Application Act XXVI of 1937 provides that the rule of decision in the various cases enumerated therein, which include marriage, divorce and dissolution of marriage shall be the Muslim Personal Law where the parties are Muslims. It does not lay down that the Muslim Personal Law shall also apply when one of the parties is a Muslim. To the same effect is section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act IX of 1948 as amended up to date. This section also applies when the parties are Muslims. Obviously, it has no application when one of the parties is a non‑Muslim. The learned counsel for the appellant contended that it would work great hardship and create difficulties if it was held that section 2 of the aforesaid enactments is applicable only when the parties to the case are Muslims. He illustrated his point by posing the question that if one of the sons of a Muslim embraces Christianity, or the wife is converted to Hinduism, or a gift or will is made of some property in favour of a non‑Muslim, and a dispute arises in respect of these matters, then what will be the rule of decision? He argued that if section 2 were not to govern such cases it will result in anomalous positions. This contention is not without force. But the language used in the section 2 is quite plain and does not admit of any ambiguity. In these circumstances, the duty of the Court is to expound the law ash it stands even though the consequences be absurd. In a case of this nature, the rule of interpretation of statutes embodied in "absolute sententia expositore non‑indiget" shall apply. I am, therefore, of the view that the application of section 2 of the aforesaid enactments is confined to cases where the parties are Muslims and not otherwise. In the cases referred to by the learned counsel for the appellant different considerations would apply, although it is very likely that the result would be the same as if section 2 had been applied. The only other provisions of law which deal with such a question are sections 5 and 6 of the Punjab Laws Act, 1872. Section 5 provides, that in matters specified therein which also include marriage and divorce, the rule of decision shall be any custom applicable to the parties con cerned, and the Muhammadan or Hindu Law, in cases where the parties are Mohammedans and Hindus respectively. This, for obvious reasons, has no application because both the parties are not Muslims. Section 6, however, lays down that in cases not otherwise specially provided for, the Judges shall decide according to justice, equity and good conscience. In my opinion, this is the only provision of law which seems to govern the instant case. I have, therefore, no hesitation in holding that this case shall have to be decided in accordance with the principles laid down in section 6 of the Punjab Laws Act. It is true that with the establishment of Pakistan, the Muslims of Pakistan were expected to order their lives in accordance with the teachings and requirements of Islam, as set out in the Holy Quran and Sunnah, but it is to be regretted that although more than ten years have passed yet so far not even a beginning has been made to bring the existing laws into conformity with the Islamic Laws. Before the Constitution came into force, Pakistan in spite of being styled as an Islamic country was being governed by the Govern ment of India Act, 1935, as amended by the Independence Act 1947. The existing laws which were in force at the time of the establishment of Pakistan, continued to operate as before. But even after the enforcement of the Constitution, the position has not changed. Article 224 of the Constitution provides for the continuance of the existing law subject to the adaptations made in accordance with that Article. Under Article 4 of the Constitu tion, however, such existing laws which were inconsistent with the fundamental rights provided in Part II of the Constitution, were declared void to the extent of the inconsistency. The Constitution of the Islamic Republic of Pakistan did not declare that the existing laws repugnant to the injunctions of Islam were also void to the extent of the repugnancy. It was nowhere provided in the Constitution that Pakistan being an Islamic country ,the Muslim religious and personal laws shall immediately become operative. The relevant Article in this connection is Article 198, which is in these terms:- "Provisions relating to the Holy Quran and Sunnah.‑(1),No law shall be enacted which is repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah, hereinafter referred to as Injunctions of Islam, and existing law shall be brought into conformity with such Injunctions. (2) Effect shall be given to the provisions of clause (1) only in the manner provided in clause (3). (3) Within one year of the Constitution Day, the President shall appoint a Commission (a) to make recommendations‑ (i) as to the measures for bringing existing law into confor mity with the Injunctions of Islam, and (ii) as to the stages by which such measures should be brought into effect ; and (b) to compile in a suitable form, for the guidance of the National and Provincial Assemblies, such injunctions of Islam as can be given legislative effect. The Commission shall submit its final report within five years of its appointment, and may submit any interim report earlier. The report, whether interim or final, shall be laid before the National Assembly within six months of its receipt, and the Assembly after considering the report shall enact laws in respect thereof. (4) Nothing in this Article shall affect the personal laws and non‑Muslim citizens, or their status as citizens, or any provision of the Constitution. Explanation.‑--In the application of this Article to the personal law of any Muslim sect, the expression `Quran and Sunnah' shall mean the Quran and Sunnah as interpreted by that sect." The language used in this Article is clear enough to show that so long as the existing laws are not brought into conformity with Islamic laws in accordance with this Article, they will remain in force even if they be repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah. A glaring example of such a repugnancy is provided by section 4 of the Dissolution of Muslim Marriages Act VIII of 1939, which provides that the renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage, although there can be no two opinions about it that under the Muslim law, apostacy from Islam of either party to a marriage operates as a complete and immediate dissolution of marriage. It will thus be seen that the existing laws which were in operation on the day when the Constitution came into force, are still in force. The present case, therefore, shall have to be decided in the light of the provisions of the existing laws. I have already hold that the case is governed by section 6 of the Punjab Laws Act.

14. But before determining the question in the light of section 6 of the Punjab Laws Act, it seems necessary to consider an important question raised on behalf of the respondent. It was urged by the learned counsel for the respondent, that the marriage having been solemnized in accordance with Christian rites, it was a union for life of one man to one woman to the exclusion of all others, and it being not a Muslim marriage, it could not be terminated by the husband on his conversion to Islam by pronouncing the Muslim formula of talak. This point, though not directly in issue, arose incidentally in Robert Skinner v. Charlotte Skinner (I L R 25 Cal. 537), where their Lordships of the Privy Council observed as follows:- "Whether a change of religion, made honestly after "marriage with the assent of both spouses, without any intent to commit a fraud upon the law, will have the effect of altering rights incidental to the marriage, such as that of divorce, is a question of importance, and it may be of nicety." As the point was not directly involved, their Lordships did not examine this question and did not give any decision on it. In Muncherji Gursatji Khambata v. Jessie Grant Khamhata (A I R 1935 Bom. 5), a Division Bench of the Bombay High Court dealt with the question whether the husband (who was a Muslim in that case), could have divorced his wife by talak while she remained a Christian. Even in that case the point was not directly involved, because the wife had also embraced Islam long before she was divorced by the Muslim husband. The discussion of the question, however, is very instructive. The answer was, of course, given, in the negative. Blackwell, J. after taking into consideration some authorities, observed as follows:- "These cases show that in India, personal status, rights and obligations, and questions of succession and inheritance, are frequently governed by religious creed, and that they may be affected by a change of religion as they might be affected by a change of domicile. It has been argued for the appellant that the status imposed by operation of law upon persons who marry in Christian form cannot be altered by the voluntary act of the parties. But, if a change of domicile, which is a voluntary act, may result in a change of status by reason of the application of a different system of law, it is difficult to gee why a change of religion, the domicile remaining unchanged, may not also result in a change of status, if the law to be applied is then different by reason of the difference of religion. It is said for the appellant that as this question arises in a divorce suit brought under the Indian Divorce Act of 1869, and section 7 of that Act enjoins the Court to; act and give relief on principles and rules which, in the opinion of the said Courts, are, as nearly as may be, conformable to the principles and rule on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief. The Court here ought to refuse to recognize the divorce by talak, as that would not be recognized by the Divorce Court in England. But, in considering in a divorce suit in India the question whether a previous marriage of one of the parties is or is not still subsisting, it seems to me that the Court must apply the law in India applicable to that marriage at the time when that question arises. There is, I think, no doubt that a Mohammedan could divorce a kitabia by talak under Muhammadan law. In Ameer Ali's Muhammadan Law, 5th Edition Volume 2 at page 393, the following passage occurs `But a Moslem can enter into a valid contract of marriage with a woman following any of the scriptural faiths. All the legal consequences (save as regards the right of inheritance, the reason for which is to be found in another principle) which flow from a union between two Islamists, arise out of such marriage. Suppose, then, a Mussalman wife abandons Islam and embraces Judaism or Christianity, there is no inherent vice in the continuance of the contract as a valid contract. It is only as a State offence that the‑ ecclesiastical law pronounces against her a forfeiture of civil rights. But when that law is unen forceable, the union remains as valid as it would be were the wife a Jew or a Christian at the time of marriage.' Again, at page 499 of the same volume, in dealing, with the question of talak, it is said: `The iddat of a free woman, Moslem or kitabia, is three full terms, but of one who is too young or too old three months, counted by days; in other words, ninety days'. I think it is clear from these passages that in the opinion of the author a Mohammedan could divorce a kitabia by talak. It may well be that the husband's right of pronouncing talak against a Christian wife was taken away when the principles upon which the Courts in England would act, became applicable in India to a Christian wife, but if a Christian wife renounces Christanity by adopting another religion, as the petitioner did in this case, those grounds and that procedure cease to apply as between her and her Mohammedan husband, and I can see no reason why his personal law should not then apply to the marriage".

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

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

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

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

19. I have given this case a very earnest and prolonged consideration, because the questions involved are of unusual importance and delicacy. And having regard to all the cir cumstances of the case, I have arrived at the conclusion that it will be against the dictates of justice, equity and good conscience to grant a decree to the plaintiff in terms of the relief sought for. I might as well add here the memorable words of the Holy Prophet: "Of all the things which have been permitted to man, divorce is the most hated by Allah".

20. For the aforesaid reasons, I would dismiss this appeal with costs. K. M. A. Appeal dismissed.