..:: Procedure of Divorce by Pakistani Muslim to his Foreigner wife in London

Marriage of Muslim Pakistani male solemnized in London with Christian woman under (English) Marriage Act, 1949 before a Registrar–Divorce communicated by husband in Pakistan to wife in London and again, on wife’s coming over to Pakistan (in connection with maintenance proceedings initiated by her in England), another notice of talaq sent to wife under S. 7, Muslim Family Laws Ordinance (VIII of 1961)‑Divorce, held, effective‑Lex loci celebrations has nothing to do with question of divorce which is a matter solely for lex domicili ‑Marriage before a Registrar in London does not necessarily import the essential of monogamy‑Such marriage conforms to requirements of Muslim marriage and would be recognised as valid under Muslim Law‑Divorce Act (IV of 1869)­ Christian Marriage Act (XV of 1872)‑Both Acts contain no express provision which prevents Muslim husband of Christian woman from having resort to his own personal law for purpose of divorce‑Punjab Laws Act (IV of 1872), S. S, makes Muslim personal law applicable to Muslims ‑ Muslim Family Laws Ordinance (VIR of 1961), S, 7‑Applies to all Muslims‑Latest judicial trend in England favours application of lex domicili in cases of divorce‑‑‑Divorce under S. 7, Muslim Family Laws Ordinance (VIII of 1961) not a “purely a private unilateral” act‑Matter does go before a public authority

Held, that the right of the Muslim husband to grant a divorce to his wife, in respect of the marriage recognised by Muslim law, does not appear to have been taken away, by any statute current in Pakistan. Therefore, the talaq given by the husband to his Christian wife, in case of a marriage solemnized in London (England), under the (English) Marriage Act, 1949, before a Registrar, bad become effective.

Under the rules of Private International Law, the lex loci celebrations, as such has nothing to do with the question of divorce which is a matter solely for the law that happens to be the lex domicili of the parties, at the time of the suit. This may very well be different from the law that governed the solemnisation of the marriage.

It would not seem to be correct that a marriage performed before a Registrar in England must necessarily import the essential of monogamy.

Cheshire on International Law, p. 305.

Harvey v. Farnie (1882) 8 A C 43 and Warrender v. Warrender (1835) 2 Cl. & F 488 & 535 ref.

Hyde v. Hyde 1866 L R 1 P & D 130 considered.

In the instant case the validity of divorce had to be considered in the light of the law of Pakistan which was the law of the domicile of the husband.

In respect of the form, the Hanafi Muslim Law by which the husband presumably was governed, only requires that there should be a declaration and acceptance of marriage by the couple, at one and the same meeting, in the presence of witnesses. This procedure is ensured by the Marriage Act, 1949. The Muslim Law prescribes no specific ceremony for the performance of a marriage and no religious rites are necessary for contracting a valid marriage.

The marriage of the parties in this case solemnised before a Registrar in England, according to the procedure laid down in the Marriage Act, 1949, conforming as it did to the above requirements, would be recognised as valid, under Muslim Law.

Mohammedan Law by Syed Ameer Ali, Vol. II, 1965 Edn., pp. 139 & 255.

There is no provision in the Divorce Act, 1869 and the Chiristian Marriage Act, 1872 which in express terms, prevents a Muslim husband of a Christian woman, from having resort to his own personal law, for the purpose of the dissolution of the marriage. The provisions of the two Acts no doubt provide a machinery for dissolution of marriage through Court, but there is nothing in them to show that the procedure prescribed therein for that purpose is to be regarded as exclusive.

So far as the Muslim husband is concerned, the Muslim Personal Law on the subject of marriage, would clearly be applicable to him. In the absence of special custom or usage to the contrary, according to section 3 of the Punjab Laws Act, 1872, the law applicable to a Muslim, in respect of questions relating to his marriage, would be the Muslim Personal Law. Again, the Family Laws Ordinance, 1961, applied to all Muslim citizens in Pakistan wherever they may be. If a Muslim husband is married to a Christian woman in a form recognised by Muslim Law, or to a non‑citizen Muslim woman, there is no reason why the provisions of section 7 of this Ordinance, should not apply, if he wants to divorce his wife by talaq.

There is nothing in this Ordinance which rules out the possibility of an application of its provisions to a Muslim husband married to a Christian wife, in regular form.

The latest judicial trend in England favours the principle that if the law of the domicile permits dissolution of marriage solemnized in England by the pronouncement of talaq, the divorce may be recognised as valid, under the rules of Private International Law.

Private International Law by Cheshire, pp. 400 & 402 and Dicey’s Conflict of Laws, 7th Edn., p. 307 ref.

Divorce by talaq is now regulated in Pakistan by the procedure prescribed in the Muslim Family Laws Ordinance, so that it no longer remains a purely private unilateral act of the husband. The matter does go before a public authority before it receives finality.

The argument based on the fact that the Pakistan Christian Marriage Act, 1872, invalidates a marriage between a Christian and another, unless solemnized under that Act and consequently, it could only be dissolved under that Act, read with the Divorce Act, 1869, did not appear to be available in the present case where the marriage took place in London under the English Marriage Act, 1949, which contained no analogous provision.

Muhammadan Law‑(Dower)‑Marriage between Muslim male and Christian woman solemnized in London (England) before a Registrar ‑ Wife entitled to dower though no dower fixed­ (Mahr‑ul‑Misl‑Dower payable to woman of similar status and circumstances as the claimant).

Muhammadan Law ‑ (Divorce) ‑ Marriage of Muslim Pakistani male solemnized in London with Christian Spanish woman under (English) Marriage Act, 1949, before a Registrar‑Such marriage cannot be dissolved by husband by unilateral pronouncement of talaq under Muslim Family Laws Ordinance (VIII of 1961), ­Fundamental difference between a Muslim marriage and a Christian marriage‑Marriage under (English) Marriage Act, 1949 cannot be assimilated to a Muslim marriage‑Divorce Act (IV of 1869), Ss. 2 & 10‑Provisions of Divorce Act (1869) apply in terms to a marriage where one of the parties is a Christian‑Christian Marriage Act (XV of 1832), Ss. S & 42‑Prior subsisting marriage is a hindrance to marriage under Christian Marriage Act (XV of 1872)­Christian marriage is monogamous‑Application of personal law to a marriage between Muslim and a Christian in Pakistan stands excluded‑Such marriage can be dissolved only under Divorce Act, 1869, i.e., by intervention of Court

The marriage between the parties (Muslim Pakistani male and Christian woman) solemnized under the British Marriage Act, 1949, in London subsisted and was not dissolved by pronouncement of Talaq and service of notice by the husband under section 7 of the Family Laws Ordinance on the Chairman of the Union Council.

There is a fundamental difference between a Muslim marriage and a Christian marriage. The latter is a union for life while the former is placed on the footing of a contract liable to be dissolved by the husband unilaterally and by the wife by the intervention of a Court. A church marriage and equally a marriage performed before the Registrar is accordingly liable to be dissolved not by a unilateral act of the husband, but under the decree of a Court.

A certificated marriage performed by a Superintendent Registrar under the British Marriage Act, 1949, cannot be assimilated to a Muslim marriage liable to be dissolved by pronouncement of Talaq. Another view of the matter is that if the husband contracts that the marriage will be a union for life liable to be dissolved only by the decree of a Court he shall remain bound by it and is not relieved of that obligation by pronouncement of Talaq.

The view that a marriage between a Muslim male and a non‑Muslim and non‑Pakistani female may be dissolved by pronouncement of Talaq can be rested on the doctrine that marriage being a matter of personal status the personal law of the husband shall apply to its dissolution. It does not, however, follow that section 7 of the Muslim Family Laws Ordinance becomes applicable to such a marriage. Section 2 is in definite terms that the Ordinance applies to Muslim citizens of Pakistan wherever they may be. The personal status which the wife acquired as a married woman under the British Marriage Act, 1949, would not, therefore, be affected by the provisions of the Ordinance unless an express provision was made to that effect in the Ordinance.

One of the parties to the present marriage being a Christian by faith the above provisions shall apply in terms.

“Other lawful hindrance” (section 42, Divorce Act, 1869), includes a prior subsisting marriage, because marriage under the Christian Marriages Act is monogamous.

An examination of the relevant provisions of the British Marriage Act, 1949, the Pakistan Divorce Act, 1849 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 1872 and to that extent the application of personal law stands excluded by statute. Reference may be made to section 5 of the Punjab Laws Act and other similar enactments and Regulations prevailing in other parts of undivided India. It is for this reason that a Christian female is usually converted to Islam before being married to a Muslim male. Consequently a marriage between a Muslim male and a Christian female can be dissolved only under the Divorce Act and not by pronouncement of Talaq under the personal law of the husband.

The language employed by the Legislature in section 2 of the Act viz. “Nothing hereinafter contained shall authorise any Court to grant any relief under this Act except where the petitioner or respondent professes the Christian religion” has, therefore, to be construed in the sense that if one of the parties to the marriage professes the Christian faith the marriage can be dissolved only by a decree of the Court under the Act and not otherwise. A contrary view would lead to anomalous results, such as, if a Muslim husband petitions to Court under the Divorce Act for dissolution of his marriage with a Christian wife he shall have to prove to the satisfaction of the Court that she has been guilty of adultery and shall also be obliged to pay to her alimony pendentelite and costs of the suit as well as permanent alimony on obtaining a decree for dissolution. On the contrary if the Muslim Law applies he can avoid all these obligations by pronouncing Talaq and bringing to an end the marriage by his unilateral act. No husband would, therefore, ever make resort to a Court for dissolution of marriage. The question is whether it would be reasonable to attribute such equivocation to the Legislature in enacting Act IV of 1869.

Under the Christian Marriage Act, 1872, which is complementary to the Divorce Act of 1869 a person professing the Christian faith alone can be appointed Marriage Registrar. How can the two marriages, therefore, be treated alike in the matter of conferring a personal status on the husband and wife? A marriage performed under either of the two Acts is, therefore, a Christian marriage and on no principle can it be deemed to be a Muslim marriage for the purposes of dissolution by pronouncement of Talaq. Another view is that since a Muslim marriage is a contract freely entered into by the spouses the husband would not be permitted to resile from the most important condition of the contract, namely, that the marriage is a union for life liable to be dissolved only by intervention of a Court.

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