P L D 1952 Azad J (PLP)

ABDUL MAJID, C. J.‑Baqar Shah married two wives namely Mst. Said Begum and Mst. Madad Bi. Mst. Said Begum was a Mussalman before her marriage with Baqar Shah. Mst. Madad Bi was Hindu by religion and had embraced Islam before her marriage with Baqar Shah. At the time of Mst. Madad Bi's marriage with Baqar Shah, her Hindu husband was living. Baqar Shah got children from both his wives. The plaintiffs Faiz Ali Shah and Hafiz Shah are sons of Baqar Shah from Mst. Madad Bi. The defendants in the case are the offspring of Baqar Shah from Mst. Said Begum. After the death of Baqar Shah litigation started between his sons from two wives regarding property left by him. In that litigation, it was ruled that the plaintiffs Faiz Ali Shah and Hafiz Shah were not the legitimate sons of Baqar Shah, but they got some property by way of compromise with the other descendants of Baqar Shah. In this case, the plaintiffs sought a declaration that certain alienations of property made by Mst. Karam Noor widow of Muzaffar Shah were not valid as she was entitled to 1/8th share of the property in the possession of her deceased husband and the alienations made by her exceeded that share. The suit was contested on several grounds. A preliminary issue was raised whether the present suit was res‑judicata or not. It was decided by both the Courts below that the plaintiffs were not entitled to maintain the suit because they were not legitimate sons of Baqar Shah, as held in previous judgments, between them and other descendants of Baqar Shah. The plaintiffs have now come up to this Court by way of second appeal. It is admitted on both sides that the alienees from Mst. Karam Noor were not parties to the previous suits and that they did not acquire any right on the basis of the former judgments between the plaintiffs and the other descendants of Baqar Shah. It is contended by the learned counsel for the plaintiff appellants on the strength of Chairman Chingleput Municipalitv v. Murugesa Mudaliar and others A I R 1933 Mad. 59 ; Mangalathammal v. Narayanswami Aiyar 30 Mad. 461 and Basaratulla Mean v. Reazuddin Mean A I R 1926 Cal. 773, that an erroneous decision on a question of law in the previous suit cannot be a bar in a subsequent suit even between the same parties and a different decision may be given on that question but the decision so given should not in any way affect the operation of the former decree or take away any rights acquired by the parties thereunder. Against this proposition of law, no authority has been quoted by the respondent's counsel. As the alienees did not acquire any rights under the former judgments hence the question of their correctness can be gone into by this Court for finding out whether these judgments gave an erroneous decision on a question of law and con sequently these should not operate as a res‑judicata so far as the legitimacy of plaintiff‑appellants is concerned. I, therefore, proceed to consider whether the judgment given in the previous suits declaring that the plaintiff appellants were not the legiti mate sons of Baqar Shah were erroneous in law or not. If these are correct decisions, then certainly they will operate as res‑judicata in the present case and if not then they will have no effect on the claim of the plaintiff appellants that they are the legitimate sons of Baqar Shah. The question, whether the plaintiff appellants are entitled to maintain a declaratory suit with regard to the alienations made by Mst. Karam Noor otherwise will, however, remain open. All the previous judgments by which, it was held that the plaintiff‑appellants were not the legitimate sons of Baqar Shah were based on cases reported as Mst. Nandi alias Zainab v. The Crown I L R 1 Lah. 440; Inder Singh v Thakur Singh I L R 2 Lah. 207 ; Jamna Devi v. Mul Rai ‑ 49 P R of 1907 ; In the matter of Ram Kumari I L R 18 Cal. 264 and In the matter of Thakur Bhagwan Das Harjiwan I L R

4. Bom.

330. In all these cases, it was held that a marriage between Hindus is not dissolved by one of the parties thereto embracing Islam, the matrimonial bond being regarded by the Hindu Law as indissoluble and this being the case the marriage between Hindu married woman embracing Islam and a Mussalman is not valid because previous marriage of the Hindu woman was not dissolved by her conversion and the Muhammadan Law did not allow plurality of husbands at one and the same time. In all these decisions, the view adopted was that a Hindu married woman could not by renouncing cast off the obliga tions which she contracted at the time of her first marriage. In the case reported as I L R 1 Lah. 440, it was further observed by Abdur Rauf judge that the Muhammadan Law on this point as clearly explained at page 437 of Amir Ali Muhammadan Law Volume II also laid down that marriage between Hindu spouses will remain subsisting even if one of the spouses becomes a convert to Islam unless a decree for the dissolution of the marriage is passed by a competent Court in accordance with the procedure laid down in Muhammadan Law. With due respect to the views expressed by the eminent judges in the afore‑mentioned cases, I am not prepared to hold that the rights of the parties relating to the dissolution of marriage form part of the marriage contract and, consequently, a Hindu married woman converted to Islam is to be deemed to remain wife of Hindu husband till her marriage is dissolved by a competent Court for some reason. Certain principles of Law relevant to the determination of questions relating to matrimonial suits which in my opinion are firmly established are (1) the forms necessary to constitute a valid marriage and the construction of the marriage contract depend on the lex loci contractus, that is, the law, of the place where the marriage ceremony is performed. (2) on marriage, the wife automatically acquires the domicile of her husband (3) the status of rights and obligations arising under the marriage contract are governed by the lex domicili, that is by the law of the country in which for the time being they are domiciled. (4) the rights and obligations of the parties relat ing to the dissolution of the marriage do not Morn: part of the marriage contract, but arise out of and are incidental to such contract and are governed by the lex domicili, see (1930) LRP

217. In the case of the four general principles formulated above, there is no reason why the. principles of Muhammadan Law should not govern so far as validity of marriage is concerned between a Mussalman and a Hindu married woman who em braces Islam. It was especially in enacted British India that in marriage contracts parties would be governed by Muhammadan Law, if they are Muhammadan and by their personal laws, if they are non‑Muhammadans. If principles of Hindu Law apply to the marriage celebrated between Mussalmans then it will mean negation of religious freedom which was the key stone of British Rule in India. It was probably for this reason that in the cases reported as I L R 18 Cal. 264 and I L R 1 Lah. 440, it was considered necessary by the judges to decide whether the marriage of a Hindu married woman is dissolved by her conversion to Islam according to Muhammadan Law. The decision, reached by the judges, on this point, however, was not correct as will be shown later on. I now proceed to consider the principles of Muhammadan Law relating to marriage between a married woman converted from Hinduism to Islam and a Mussalman. The principle of Muhammadan Law governing such marriage is based on the following passage in Chapter V of the Hedaya (Hamilton's Translation, 2nd Edition, page 64) :‑ " Upon the conversion of one of the parties, the Magis trate is to require the other to embrace the faith, and must separate them in case of recusancy. When the wife becomes a convert to the faith and her husband is an infidel the Magistrate is to call upon the husband to embrace the faith also; if he accede, the woman continues his wife ; but if she, refuse, the Magistrate must separate them ; and this separa tion with Abu Hanifa and Muhammad is a divorce." The relevant passage in Baillie's Digest which is based on the Emperor Aurangzeb's Fatawa Alamgiri, is to be found at pages 180 and 181 of the 2nd Edition of that treatise. It is in the following terms : "When one of two spouses embraces the Mussalman faith, Islam is to be presented to the other, and if the other adopt it, good and well ; if not, they are to be separated. If the party is silent and says nothing, the judge is to present Islam to him, time after time, till the completion of three by way of caution. And there is no difference between a dis cerning youth and one who is adult ; so that a separation is to be made equally on the refusal of the former as of the latter, according to Abu Hanifa and Muhammad . . . . . . If the husband should embrace the faith and the wife refuse, the separation is not accounted repudiation ; but, if the wife should embrace the faith, and the husband decline, and a separation is made in consequence, the separation is account ed repudiation, according to Abu Hanifa and Muhammad." On the basis of the above mentioned authorities Mr. Amir Ali holds in this treatise on Muhammadan Law that in a case in which the wife becomes a convert to Islam :‑ " If the conversion takes place in a country subject to the laws of Islam, the faith will be offered for acceptance to the husband, and on his refusal the Judge will make a decree for separation or cancellation of the marriage. But, if the wife were to become a Mussalman in .a non‑Islamic country, and the husband should also adopt the faith before the comple tion of three of "her terms", the marriage would remain subsisting, otherwise they would become separated on such completion without any decree or order of the judge." The main distinction which has been drawn by the Muslim jurists is between a conversion which takes place in an Islamic country where both parties to the marriage may be brought before the Qazi and a conversion which takes place in a country which is not subject to the laws of Islam. In the former case it is laid down in the Hedaya that Islam is to be presented to the unconverted party by the Qazi, and on refusal to embrace the faith, the Qazi must pronounce a decree of divorce. In the latter case the dissolution of the marriage takes place automatically after the completion of three of the wife's "terms" because "the requiring of the other party to embrace the faith is impracticable, as the authority of the Magistrate is not acknowledged there." In the case under discussion, the conversion had taken place in British India The question is whether the British India was to be regarded as an Islamic country or a country which was not subject to the Laws of Islam. The judges deciding cases I L R 18 Cal. 264 and I L R 1 Lah. 440 were of opinion that British India should be regarded as an Islamic country because the Mussalman residing there were governed by their Personal Law in certain matters. It was for that reason that they held that there was no lawful dissolution of the previous marital tie because Islam had not been actually presented to the unconverted party by the Court acting as a Qazi. The authorities quoted above envisage the actual physical presence of the parties before the Qazi and in the absence of unconverted party, it was difficult to see how Islam could be effectively presented to him. The procedure which was prescribed by the Jurists was considered as designed to ensure that the unconverted party fully understood the implica tions of a refusal to embrace Islam and it did not appear to be applicable when it was impossible to bring that party before the Qazi. This having been not done, the marriage between the woman converted to Islam and her former husband was regarded as still subsisting. The reason given for declaring British India as an Islamic country are, however, faulty. By no stretch of reasoning, it can be said that British India was a country subject to the laws of Islam. The rules of Muhammadan Law detailed in such treatises as the Hedaya and the Fatawa Alamgiri pre‑suppose the existence of Muhammadan Law as the Law of the State and Islam as the State religion. One has to admit that in British India, the State religion was not the Islam. The laws prevailing in British, India were quite different from Islamic Law on several questions. Even now in Pakistan it cannot be said that the law of the State is pure Muhammadan Law. The British India could not be considered as Darul Islam as observed by Abdur Rauf judge in the case reported as I L R 1 Lah.

440. The non existence of Qazis through which Islam had to be presented to a spouse who had not embraced Islam also supports the view that British India was not Darul Islam. The Law that prevailed in British India or is now in force in Pakistan or in the territory under Azad Kashmir Govern ment is not the law of Islam but the law of the particular Government which lays down that personal law of the people belonging to different religions shall be enforced in certain matters. In the circumstances, the British India had to be treated as a Foreign Country and the marriage of a Hindu married woman on her conversion to Islam according to Muhammadan Law should be regarded as dissolved without any decree or order of the judge on the completion of three of "her terms". There is not evidence that husband of Mst. Madad Bi took any steps when she embraced Islam and was. married to Baqar Shah. This inaction on the part of Hindu husband of Mst. Madad Bi established beyond a shadow of doubt that it was not a fraudulent conversion to Islam made with a view to legalise her marriage with Baqar Shah. I, therefore, hold that the marriage between Baqar Shah and Mst. Madad Bi was perfectly valid and the plaintiff‑appellants were the legitimate sons of Baqar Shah and the previous judgments which declared the plaintiff‑appellants as illegitimate sons of Baqar Shah were based on decisions erroneous in law and consequently do not operate as res‑judicata. Before concluding, I may venture to state the reasons which, in my opinion, led the judges of the High Courts in British India to override the express provisions of Muhammadan Law relating to dissolution of marriage of a Hindu or Christian married woman on conversion to Islam without the intervention of the Court in British India. The laws governing people belonging to different religions were different and it was considered proper with a view to reconcile them to enforce these laws only so far as they may be consistent with the principles of justice, equity and good conscience. Probably it was urged before the judges that if a Hindu or Christian married woman was allowed to dissolve her marriage which contemplated a life‑long union merely on the ground that she had become a convert to Islam, then it would be contrary to public policy, as such recognition would tend to encourage dissolution by a subterfuge of marriages intended to be indissoluble. As the personal law of Mussalmans was at conflict with the personal laws of other communities, the Judges, considered to decide the matter according to the rule. of justice equity and good conscience, but they overlooked one important aspect that the children born from a union between a married Hindu or Christian woman who had become convert to Islam and a Mussalman would be considered as illegitimate and this stigma will cause life‑long hardship. The cases in which it was held that a married Hindu or Christian woman could not dissolve her marriage by conversion to Islam without the intervention of the Court, were criminal cases under section 494, Indian P. C. and to check bigamy these rulings were given. If the question of the legitimacy of the children born to a Mussalman from his marriage with a Hindu or Christian married woman converted to Islam had been in issue then probably Judges would have come to a conclusion reached by me. For the above reasons, I accept the appeal and setting aside the decision of the Courts below, send the case back to the trial Court, under O. XLI rule 23 Civil P. C. for decision on other points arising in the case. The costs of this appeal shall abide by the result. Pleader's fee shall be Rs.

25. Announced. A.H.