P L D 1967 Supreme Court 334 (PLP)

S. A. RAHMAN, J.‑The facts giving rise to this appeal by special leave are as follows. The parties were married on the 7th December 1945 in the Church at Dehra Dun, under Christian rites. They were Indian nationals at that time. They lived as husband and wife in Peshawar Cantonment till the 3rd of July 1960. After the Partition, apparently, they had acquired Pakistani domicile. In July 1960, the appellant, Mrs. C. M. Samuel, left her husband and started living with her sister. On the 19th of December 1960, the respondent embraced Islam at Lahore and was given the Islamic name of Sheikh Muhammad Din. Four days later, he made a public re‑affirmation of his new faith in the presence of a number of persons at Peshawar. Instead of being called Sheikh Muhammad Din he preferred to be named Hamid Hussain. He then married a Muslim lady who was the widow of one, Fateh Muhammad Khatak. On the 6th of January 1961, the appellant filed a complaint against him and his newly‑wedded wife, charging them with bigamy The trial Magistrate convicted the respondent, holding that he had failed to prove that in his case there was a genuine conversion to Islam. As the first marriage between him and the appellant subsisted, tee learned Magistrate found that he was guilty of the offence falling within section 494 of the Pakistan Penal Code and sentenced him to three months' simple imprisonment by order, dated the 28th of January 1963. The convict appealed to the Sessions Judge. The learned Judge affirmed the finding of the learned Magistrate that the alleged conversion of the respondent was a colourable one with the mere object of marrying a second time and upheld his conviction and sentence. The orders of the Court of first instance and the appellate Court were challenged by a revision petition, on behalf of the respondent, in the High Court of West Pakistan, Peshawar Bench. This petition succeeded and the conviction and sentence of the respondent were set aside by order dated the 24th of February 1964. The learned single Judge, who disposed of the revision petition, held that the conversion of the respondent to Islam must be accepted as a bona fide one on the evidence led and that he had committed no offence by marrying a Muslim wife while leis first marriage with the appellant subsisted, as slam allowed plurality of wives to a person, professing that faith. Special leave to appeal was granted to the appellant as it was felt that a question of general importance arose for decision in the case, as to the effect on marriage of one of the Christian spouses becoming a convert to Islam. On this question there was no previous decision of this Court. Mr. Muhammad Yunus Shah for the appellant, at the outset, attempted to argue that the respondent's alleged conversion to Islam was open to question and that the first two Courts having held that there was no genuine conversion, that finding should have been upheld. The rule about concurrent findings of two Courts on a question of fact being upheld, does not, however, apply to criminal cases and the learned Judge of the High Court was competent to examine the whole evidence to come to his own finding on this point. The admitting order of this Court proceeds on the assumption that the respondent's acceptance of Islam was bona fide and the only question on which leave was granted was whether in spite of that fact, the respondent could have been held to be guilty of an offence within the purview of section 494, Pakistan Penal Code, or not. There is no doubt that at the time that the respondent went through a form of marriage with his second wife, his first marriage which had been performed under the Christian Marriages Act, 1872, subsisted. A Muslim is permitted to take a woman, belonging to one of the scriptural sects, like the Christians, as a wife, under Islamic law. By the mere fact of his conversion to Islam, therefore, the first marriage of the respondent with the appellant could not be said to have been dissolved. Moreover, nothing was done by the respondent to put an end to his first marriage, either by his own conduct or by any proceedings taken in a competent Court. The main argument advanced by Mr. Muhammad Yunus Shah, on behalf of the appellant, is that the obligations arising out of the Christian marriage of the respondent, prevented him from contracting a second marriage, without the dissolution of the first and, consequently, his second marriage must be regarded as bigamous. Learned counsel invited our attention in this connection to Emperor v. M.5t. Ruri (A I R 1919 Lah. 389). In that case, Mst. Ruri, an Indian Christian, had been married to one, Labhu, also an Indian Christian, according to Christian rites. Mst. Ruri left her husband's house, became a Muhammadan and married one, Fazal Din. In consequence, Mst. Ruri and Fazal Din were tried for bigamy, but the learned Sessions Judge acquitted both the accused. On an appeal by the Provincial Government, it was held by the High Court at Lahore that the Christian marriage subsisting between Mst. Ruri and Labhu was indissoluble, except by death or divorce granted under the Indian Christian Marriages Act and the circumstance that Mst. Ruri had accepted Islam, did not affect that position. ? The law not allowing a plurality of husbands to a wife, her second marriage was bigamous, as it was contracted while her first marriage subsisted. It was observed that Mst. Ruri could not, by renouncing the Christian religion, cast off the obligations which she had incurred at the time of her marriage with Labhu. The case cited is clearly distinguishable from the instant case. It is clear that even, under Islamic law, a woman is not permitted plurality of husbands. This restriction is, however, not applicable to a Muslim male who can have a plurality of wives. The case which is more in point is John Jiban Chandra Dutta v. Abinash Chandra Sen (A I R 1939 Cal. 417). In that case a Division Bench of the Calcutta High Court ruled that under the Muhammadan law, where a Christian embraces Islam, he acquires all the rights which a Muhammadan possesses and can contract a valid marriage even if the first one with his Christian wife subsists. It was observed that if an Indian Christian domiciled in India married an Indian Christian woman, domiciled therein, and subsequently became converted to Muhammadanism, his second marriage with a Muhammadan woman would be legal and could not be regarded as a mere adulterous union. There is nothing either in Act XV of 1872 or in the Divorce Act which would invalidate this second marriage. The succession to the property of such a convert to. Muhammadanism would be governed by Muhammadan law, as neither the Caste Disabilities Removal Act nor section 37 of the Bengal, Agra and Assam Civil Courts Act applied to such succession. The learned Judges referred to Skinner v. Order, etc. (14 M I A 309) and took note of the fact that the Judicial Committee of the Privy Council had expressed doubts about the legality of the second marriage by a Muhammadan convert under similar circumstances. The case, however, was distinguished on the ground that in that particular case there was some doubt whether the parties were really converted to Muhammadanism or merely pretended to be Muhammadans in order that they might take advantage of the Islamic law. The learned Judges referred, with approval, to the following observations of Beaman, J., in Advocate‑General of Bombay v. Jimbabai (1 L R 41 Bom. 181) :‑ "On conversion to Muhammadanism, converts, no matter what their previous religion may have been, must be taken at that moment to have renounced all their former religious and personal law in so far as the latter flowed from and was inextricably bound up with their religion, and to have substituted for it the religion of Muhammad wish so much of the personal law as necessarily flows from that religion." The learned Judges also derived support from the observations of Lord Atkin in Mitar Sen Singh v. Maqbul Hasan Khan (57 1 A 313), which may be reproduced with advantage: "In other words, when once a person had changed his religion and changed his personal law, that law will govern the rights of succession of his children. It may, of course, work hardly 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." It is obvious that succession could only take place, to the convert, under Muslim law, if the second marriage was valid. A learned single Judge of the High Court of West Pakistan in a case, reported as Farooq Leivers v. Adelaide Bridget Mary (P L D 1958 Lah. 431). expressed the opinion that a right which a 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 to him before his conversion. In that case, the question that arose for decision was whether a Christian husband on his conversion to Islam, could legally give talaq to his Christian wife, under Muslim law. The learned Judge was of the view that he could do so under Muslim law, but that the Pakistan Courts should not recognise such a talaq, in view of the provisions of the Divorce Act of 1869 and other existing laws, on the principle of equity, justice and good conscience as there was conflict of the personal laws of the parties in such a case. That point does not arise for decision in the present case and the learned Ju4ges' opinion does not appear to be in accord with the latest judicial trends. This Court held in Syed Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yusuf (P L D 1963 S C 51), that the capacity to enter into the marriage bond, must be determined according to the law of domicile of the party concerned. It would follow, therefore, that the validity of the marriage contracted by the respondent had to be judged in accordance with the law which governed him in the matter of marriage in this country, namely, the Islamic law. Marriage being a matter of status, he was governed by his personal law in this respect. There is no provision under the Divorce Act or under the Christian Marriages Act which could stand in the way of acceptance of this second marriage as valid, even if the first one performed under Christian rites subsisted. Mr. Muhammad Younus Shah was unable to cite before us any provision or principle of law under which this second marriage, performed by a Muslim under Muslim rites, could be invalidated. Reference may also be made to two other cases, reported as Emperor v. Atony (1 L R 38 Mad. 371) and Gladys Sainapatti v. Sainapatti and another (A I R 1932 Lah. 116), which lay down that a Hindu convert to Christianity first marrying a Christian woman according to the rites of the Roman Catholic religion and subsequently during the lifetime of his Christian wife, reverting to Hinduism and marrying a Hindu woman in accordance with Hindu rites would not be guilty of bigamy. The respondent could have been held guilty of the offence o bigamy only if his second marriage could be said to be void by reason of its taking place during the lifetime of his first wife. The material part of section 494 of the Pakistan Penal Code reads as follows: "Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine." There are certain exceptions to this provision which need not concern us. Clearly, it could not be said in the present case that the second marriage of the respondent was void by reason of the substance of the first, as validity of the second marriage had not to be judged under the law applicable to Christians but under the law applicable to Muslims. After considering the case from all aspects, we have therefore, reached the conclusion that the acquittal of the respondent requires no interference by this Court. The appeal is dismissed. A. H. ?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.