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Constitutional Petition No.S‑120 of 1984, decided on 5th October, 1986.

‑‑‑S. 2‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5‑ Constitution of Pakistan (1973), Art. 203‑‑Marriage contracted between Muslim woman and non‑Muslim husband‑‑Nature‑‑Dissolution of marriage‑‑Jurisdiction of Family Court‑‑Marriage contracted between Muslim woman and non‑Muslim Ahie Kitab, according to Hanafia Doctrine, would be unlawful ab initio void from very date of contract, creating no right between parties‑‑Order of Family Court dissolving such marriage, held, could not be struck down merely on jurisdictional defect‑‑Contention of petitioner that marriage was not performed under Shariat Law could not be dissolved under Act VIII of 1939 read with Act XXXV pf 1964, was repelled in circumstances.

Mrs. Marina Jatoi v . Nuruddin K . Jatoi and another P L D 1967 SC 580 rel.

Abbas Ahmed for Petitioner.

Rostam J. Kaikabad, Abdul Sattar Sheikh and Liaquat Merchant Dy.'A.‑G. for Respondents.

Date of hearing: 5th October, 1986.

In November 1967 the respondent No.l had proceeded to U.S.A. for purposes of higher studies. At there (U.S.A.) she came in contact with Kent Drake an American National. On 9th November, 1967 she underwent a form of marriage with the Kent Drake before the Judge of the Municipal Court in the nature of Civil Marriage. The respondent No.l filed a suit for dissolution of marriage in Family Court at Karachi. It was the case of the respondent No. l that at the time of marriage it was agreed by the parties that each of them would retain his or her religion, both of them would be subject to their personal law and rights thereunder and their married life would be governed by their respective personal law. The respondent No.l sought the dissolution on the terms agreed between the parties and the learned Family Court's Judge by order dated 13‑9‑1969 dissolved the marriage. That decision became final as no one challenged the order of the Family Court.

The present petitioner had filed this petition under Article 203 of the Constitution of the Islamic Republic of Pakistan for setting aside the judgment dated 13‑9‑1969 as the same is illegal and without jurisdiction. It is contended by the learned counsel for the petitioner that the marriage was not performed under the Muslim Shariat Law, therefore, the same could not be dissolved under the dissolution of Muslim Marriage Act, 1939 read with Family Courts Act, 1964.

The learned counsel for the respondent No.l has submitted that the petitioner had conducted the marriage with the respondent No.l in 1983 and thereafter, he had given divorce to the petitioner. He has filed a Suit No. 111 of 1985 in the Court of IIIrd Civil Judge and Family Court, Karachi with prayer that his marriage with respondent No.l be declared as null and void and the same relief is being claimed in the suit.

The learned counsel for the petitioner has stated that the present petition has been filed under Article 203 of the Constitution of the Islamic Republic of Pakistan, which contemplates that each High Court shall supervise and control all Courts subordinate to it. The objection of the jurisdiction was taken before the respondent No.2 but the same was rejected and reliance has been placed on the case of Mrs. Marina Jatoi v. Nuruddin K. Jatoi and another P L D 1967 SC 580 where it has been observed that so far the Muslim husband is concerned, the Muslim Personal Law on the subject to marriage, would clearly be applicable to him and it has been further observed that the suit filed by the Muslim wife would be entertained in the Municipal Court of Pakistan.

The learned counsel for the petitioner has not challenged the finding of the trial Court on this point and submitted that as the previous husband of the respondent No.l was Christian and the petitioner is Muslim but the respondent No.l retained his muslim faith. The learned counsel has not disputed that the musiim woman cannot contract a marriage with non‑Muslim or Kitabia. According to Hanafia doctrine contract of marriage between a Muslim woman and non‑muslim Ahle Kitab is unlawful and ab initio void. Such marriage does not create any civil right and obligation between the parties. The illegality of such marriage commences from the date of contract. Thus, marriage between the respondent No.l and her previous husband was null and void from the very inception. As such even if there is jurisdictional defect in the order of respondent No.2, the petitioner cannot urge that the order passed by the respondent No.2 be struck down.

I may also quote Syed Amir Ali's Mahommedan Law Volume II, Seventh Edition (1976) at page 314, it has been observed:‑

Like most other systems, the Musulman Law discontenances a marriage between a Moslem woman and a man professing another religion, whether he be a Scripturalist or otherwise. Under the Shiah law the issue of a marriage between a Moslemah and non‑Moslem are illegitimate, for the union is regarded as nugatory ab initio. In the Hanafi system, as we have seen, there is a great difference of opinion regarding the status of the children. According to the Muhit and apparently the Bahr‑ur‑Raik and the Tahtwai, the union is treated as an invalid marriage, for the man may at any time abandon his own religion and accept the Faith of Islam, and thus remove the bar to matrimony with a Moslem woman."

This petition has no force. The same is dismissed.

H . B . T . Petition dismissed.

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