The brief facts giving rise to this Constitution Petition are that Mst. Safia Bibi petitioner was born Christian by faith. In 1989 she was married to a Christian named Nazir. A female child Maria, was born out of this wedlock who is at present two years of age. According to the averments to the petition, Safia Bibi embraced Islam on 7-10-1994 in the presence of Raees-ul-Tabligh, Auqaf Department, who issued a certificate to the effect that the petitioner had voluntarily embraced Islam. Thereafter, on 16-10-1994, the petitioner entered into Nikah with a Muslim named Abdul Rehman. Since the petitioner had embraced Islam, her marriage with her previous husband, who did not embrace Islam, stood dissolved, and therefore, her second marriage to Abdul Rehman was lawful.
2. The grievance of the petitioner is that her former husband and her previous in-laws had become inimical towards the petitioner on account of her conversion and had got registered an F.I.R. At Police Station Nishter Colony for the mala fide purpose of compelling the petitioner to abandon the Muslim faith and to leave her lawfully-wedded Muslim husband. The petitioner had tried to obtain a copy of the F.I.R. Purportedly registered against her but no copy was provided to her and respondent No.1, S.H.O. Police Station, Nishter Colony, was illegally harassing the petitioner. It was prayed that the respondents be directed not to harass the petitioner illegally. It was further prayed that respondents be directed to provide a copy of the F.I.R. Registered with them and to conclude the investigation.
3. Respondent No. 1, in response to summons, produced copy of F. I. R. No.233/94 registered against the petitioner on 3-11-1994 under section 16 of the Offence of Zina (Enforcement of Hudood)
Ordinance 1979 and sector. 380, P.P.C., on the statement of Nazir Masih, Christian husband of the petitioner. According to the contents of the F.I.R., the complainant, his wife Jamila (present petitioner), and daughter Maria used to reside with his widowed aunt Baigan at Yuhannabad. The complainant had gone to Bannu for the purpose of earning his livelihood. On 24-10-1994, one Salim Masih came and informed him that on 5-10-1994, his wife Jamila and daughter Maria aged two years had been abducted by Jajj Masih, Salamat Masih, Iqbal Masih, Kala Masih and Bashir Masih.
While leaving the house she had taken with her Rs.6,000 in cash, golden ornaments weighing five totals, several wearing apparels and other valuables. The complainant tried to recover his wife, daughter and his goods from the accused persons through the intercession of respectables of the brotherhood, but the accused party refused to return his wife, daughter and goods They also threatened to kill him if he persisted in his demands.
4. The complainant in the F.I.R., namely Nazir Masih, was impleaded as respondent No.4 in the petition. The counsel for respondent No.4 argued that the petitioner had not embraced Islam bona fide. She had merely used it as a device to give cover to her criminal acts of theft and Zina. This was clear from the fact that the petitioner did not offer Islam to the complainant/respondent No.4 after her own conversion as prescribed by the jurists. During the pendency of the petition, the petitioner gave birth to a child on 9-7-1995. The complainant/respondent No. 4 asserted that this child was his offspring and the fact that petitioner had not observed Iddat had also raised confusion regarding paternity of the child. It was prayed that the petition be dismissed.
5. Learned counsel for the petitioner denied the contents of the F.I.R. And took the plea that she was being maliciously prosecuted since she had converted to Islam and had married a Muslim. It was argued that the petitioner's marriage to the complainant ipso facto stood dissolved on her conversion to Islam. In reply to a question as to how she could enter into fresh marriage without observing Iddat period, learned counsel took two-fold plea---
(a) that petitioner had actually embraced Islam in June, 1994 but had obtained certificate to this effect on 17-10-1994;
(b) that since her earlier marriage was in Christian form, no period of Iddat was prescribed after dissolution of the same.
6. Two questions arose for consideration out of the contentions of the petitioner:
(i) Whether the marriage of a Christian woman who embraces Islam would ipso facto stand dissolved?
(ii) Whether in such circumstances the woman is not required to observe Iddat and can re-marry without observing Iddat period?
The same question also arose for consideration in three other Writ Petitions Nos.4110/95, 3885/95 and 15214/94. Since these are questions of public importance, they were sent to Maulana Abdul Qadir Azad, Raees-ul---Tabligh Auqaf Department, as well as to Mr. Muhammad Ismail Qureshi and Mr. Abid Hassan Minto, Advocates for their valued opinions. In the mean--while, the petitioner was directed to join the investigation. However, the Investigating Officer was directed not to arrest her if she joined the investigation.
7. Detailed replies were filed by Maulana Abdul Qadir Azad as well as the learned amicus curiae which are as under:-- Raees-ul-Tabligh, Maulana Abdul Qadir Azad:
(i) The woman who converts to Islam must inform her husband regarding her conversion, and must offer the faith to her husband. If the husband refuses to embrace Islam then the marriage would be dissolved.
(ii) Thereafter the woman must pass 90 days' period of Iddat whereafter she could enter into a fresh marriage. However, if she enters into fresh marriage before the expiry of the Iddat period, her Nikah will be Fasid (irregular) and not Batil (void). However, she would need to enter into fresh Nikah after expiry of Iddat period in order to regularise the marriage.
Muhammad Ismail Qureshi Advocate:
(i) The marriage of a Christian woman who converts to Islam would ipso facto stand dissolved.
Since the Holy Qur'an explicitly prohibits marriage with disbelievers.
(ii) A woman must observe Iddat after her marriage is dissolved in any manner including through conversion. However, if she gets married during Iddat period such marriage would be Fasid (irregular) and not Batil (void). However, an irregular marriage could be regularised by fresh Nikah after the period of Iddat.
Mr. Abid Hassan Minto, Advocate:
(i) The marriage of non-Muslim woman who embraces Islam would not ipso facto stand dissolved.
If the conversion takes place in Darul-Islam, such as Pakistan two steps are necessary to be taken before the non---Muslim marriage is brought to an end i.e. (a) the convert wife shall offer Islam to her non-Muslim husband and if he does not accept the offer then (b) the matter shall be placed before a Judge with jurisdiction who shall pronounce dissolution of the marriage. (ref.; (i)
Muhammadan Law by Syed Amir A.I, Vo1.II, p. 346 (7th Edn.); (11) Outlines of Muhammadan Law by A.A. Fyzee pp.173-176)
(ii) Iddat is compulsory after dissolution of marriage of any character. The Iddat is imposed to ascertain whether the woman is pregnant by earlier husband so as to avoid confusion of parentage. However, marriage contracted during Iddat is merely Fasid (irregular) and not Batil (void). It appears doubtful that any criminal liability will arise out of Fasid marriage (ref.: (i) Fyzee, pp.106-108 (ii) Mullah Section 264 and 267 (iii) Amir A.I Vol II pp.300-304. The change in religion has to be genuine and that is why that matter should be referred to the competent Court for dissolving the marriage. The Court has to determine on evidence in each case, whether the conversion is prima facie genuine or only a pretext. In the first case findings shall operate as a defence against criminal prosecution and in the other it shall make the perpetrator of the act offenders of law.
8. Learned Assistant Advocate-General, who has appeared on behalf of the State, has argued that once a person has declared his/her belief in God and the finality of the Holy Prophet Muhammad (peace be upon him), the bona fides of the conversion cannot be subjected to scrutiny and if the person be a married non-Muslim woman, her marriage would stand dissolved unless her non- Muslim husband was proved to have embraced Islam within the period of Iddat. Reliance was placed on PLD 1988 SC 713, Naziran alias Khalida Parveen v. The State.
9. I have heard the arguments of learned counsel for the petitioner as well as learned counsel for the respondent No.4 and learned A.A.-G. Mr. Nusrat Muhal on behalf of the respondents Nos.2 and 3, I have also examined the earlier authorities and gone through the case-law on the subject.
10. There is a consensus among the Muslim Jurists of all schools of thought that the marriage of a non-Muslim woman who embraces Islam while her husband remains a disbeliever must be dissolved, since the Holy Qur'an explicitly prohibits Muslim women from marrying disbelievers. The relevant verses of Sura Al-Baqarah (11.221) are as under: "Do not marry unbelieving women until they believe; a slave woman who believes is better than an unbelieving woman even though she allures you. Nor marry your girls to unbelievers until they believe; a male slave who believes is better than an unbeliever even though he allures you.
Unbelievers do but beckon to the fire. But Allah beckons by His grace to the garden (of Bliss) and forgiveness, and makes his signs clear to mankind. "
"O ye who believe; when there come to you believing women refugees, examine (and test) them; Allah knows best as to their faith: If ye ascertain that they are believers, then send them riot back to the unbelievers. They are not lawful wives for the unbelievers nor are the unbelievers lawful husbands for them."
11. However, there is no consensus among the Jurists regarding the procedure to be adopted for dissolving the marriage in such circumstances. In Outlines of Muhammadan Law by Asaf A.A. Fyzee (Oxford University Press, 1964 p.169), it is stated that according to the general principles of Muhammadan Law, a person who embraces Islam is immediately governed by Islamic Law. On page 173, the specific situation of the conversion of a non-Muslim wife to Islam has been discussed.
In the author's view such conversion does not ipso facto dissolve her marriage with her husband and the ancient procedure of "offering Islam" to the husband and on his refusal obtaining a dissolution of marriage as laid down in the texts cannot be followed in India. He has referred to cases cited as (1948) 2 Cal. 119, Rakeya Bibi v. Aneel Kumar Mukar Jee (1942) 2 Cal. 165 (Noor Jehan v. Euqene Tischenko), (1949) 2 CWN 745 (Sayenda Khatoon v. M. Obadiah and (1946) 48 Bom. LR 864 (Robaba Khanum v. Khodadad Bomanji Irani), wherein it has been held that on conversion of a non-Muslim woman to Islam her marriage would not automatically stand dissolved. However, he has also cited PLD 1952 Azad J&K 32 (Faiz A.I Shah v. Ghulam Akbar Shah), wherein it was held that the marriage of a Hindu woman who converted to Islam was automatically dissolved. The author has concluded that when a Court of law has to decide a case involving change of marital status due to conversion or apostasy, it must never be overlooked that since the rules were formulated in Islamic Jurisprudence, social conditions have changed so completely that a blind adherence to some of the rules, torn out of their proper context, would lead neither to justice nor to a fair appraisal of the system under which they were promulgated.
12. Syed Ameer A.I in his book titled Muhammadan Law (PLD Publishers, 1965, Vol. II, page 346) observes that when the adoption of Islam takes place in a country where the laws of Islam are not in force, the dissolution of a marriage is suspended until the wife has completed three of her 'terms' whether co--habitation had taken place or not, and on the completion of three terms' the marriage is definitely dissolved and she can marry again. However, 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 of separation or cancellation of the marriage.
13. A Muslim has been defined in Mulla's Principles of Muhammadan Law, 1984 Edition, p. 7, S. 7), as any person who professes Islam i.e. Acknowledges that there is one God and that Muhammad is His Prophet. No Court can test or gauge the sincerity of religious belief. In S.8(4) (1) it is stated that in a country subject to Muslim Law, when one spouse of a non-Muslim marriage embraces Islam, he or she should offer Islam to the other spouse and if the latter refuses the marriage can be dissolved.
14. In a case titled Naziran v. State, decided on 25-6-1986, the Federal Shariat Court upheld that conviction of Mst. Niziran appellant under section 10(2) of the Zina Ordinance, 1979 and section 494, Cr.P.C. On the ground that she had entered into marriage with a Muslim man after conversion to Islam without having offered Islam to her Christian husband Bahadur Masih. However, in a subsequent decision cited as PLD 1988 FSC 78 (Sardar Masih v. Haider Masih), the Court held that if a non-Muslim wife embraced Islam and her non-Muslim husband did not embrace Islam within Iddat period despite his knowledge that his wife had become Muslim, the marriage would ipso facto stand dissolved. However if the Christian husband embraced Islam within the period of Iddat the previous marriage would remain intact.
15. The Hon'ble Supreme Court of Pakistan, in judgment cited at PLD 1988 SC 713 Naziran alias Khalida Parveen v. The State set aside the earlier judgment of the Federal Shariat Court cited above and while agreeing with the later judgment, held that if a Christian woman embraces Islam and after Iddat period marries a Muslim man, she will not be liable to Zina. If the Christian husband embraces Islam after the completion of Iddat period despite his knowledge that she had embraced Islam and after Iddat period marries a Muslim man, she will not be liable to Zina. If the Christian husband embraces Islam after the completion of Iddat period despite his knowledge that she had embraced Islam earlier, her marriage to him would have already stood dissolved and she could not be punished for Zina. It has further been held that in a Muslim country such as Pakistan, when a non-Muslim woman embraces Islam, the law/procedure should be that the convert to Islam should file a suit for dissolution of marriage in Court and the Court should offer the non- Muslim husband the option to embrace Islam. If he embraces Islam the marriage will continue to subsist between the parties. On the other hand if he refuses to embrace Islam the marriage would stand dissolved. However the Court has observed that currently there is no procedure laid down as to how the marriage between a non-Muslim and a woman who has converted to Islam would be dissolved. It has therefore been held that even though it is desirable for the woman to offer Islam to her husband, it is not mandatory for her to do so and her marriage would automatically stand dissolved after expiry of period of Iddat, if her husband has failed to embrace Islam.
16. The view of the Hanafi School of Jurists is given at page 713 of the afore-cited judgment. It is stated to be based on a decision made by the Caliph Hazrat Umar (R.A.) It has been narrated that Abadah bin Nauman was married to a woman of the Banu Tamim Tribe. This woman converted to Islam and appeared before the Caliph Umar. Hazrat Umar informed Abada that he should embrace Islam else his wife would be taken away from him. Abada refused to embrace Islam upon which Hazrat Umar dissolved the marriage between the parties. It has been observed by the Supreme Court that in pursuance of this decision of Caliph Umar, the law should be laid down in Pakistan, which is a Muslim country, that when married non-Muslim woman embraces Islam, she must approach a Court with an application for dissolution of her marriage. The Court should summon her husband and offer him the option to embrace Islam. If he embraces Islam, the Court shall declare the earlier marriage to be subsisting, and if he refuses to embrace Islam, the marriage should be declared to be dissolved. The Court has referred to judgment cited as PLD 1958 Lahore 431 (Farooq Leivers v. Adelaide Bridge Mary), wherein it has been observed that: "The principle which emerges 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. If he or she refuses to do so, the Judge must pronounce the dissolution of the marriage. "
17 In view of the opinions of the earlier jurists as well as the learned amicus curiae m this case and the authoritative judgment of the Hon'ble Supreme Court cited at PLD 1988 SC 713 (Naziran alias Khalida Parveen v. The State), one can draw the conclusion that the requirement of Fiqh is that:
(a) If a married non-Muslim woman embraces Islam she must inform her husband of the conversion.
(b) The husband either embraces Islam within the period of Iddat. In which case the marriage continues, or he remains a non-Muslim even after expiry of Iddat period, in which case the marriage would stand dissolved.
(c) Iddat is compulsory after dissolution of marriage of any character. The Iddat is imposed in order to provide 'opportunity to the non-Muslim husband to consider whether he wishes to embrace Islam and also as a matter of public policy in order to ascertain whether the woman is pregnant by earlier husband so as to avoid confusion of parentage.
(d) Specific procedure needs to be laid down as to how a marriage is to be dissolved in case the husband does not convert to Islam during the period of Iddat.
18. It is pertinent to note that the Constitution of the Islamic Republic of Pakistan, 1973, in the Chapter on Principles of Policy, protects the institution of marriage and the family. Article 35 guarantees that the State shall protect the marriage, the family; the mother and the child. Article 36 safeguards the legitimate rights and interests of minorities. In such circumstances the mandate of the Constitution requires that a definite procedure be laid down regarding the dissolution of marriage of a non-Muslim woman who converts to Islam in order to protect the marriage and family as well as to safeguard the legitimate rights of minorities.
19. From the above discussion it follows that it is incumbent on a married woman who embraces Islam to inform her husband regarding her conversion and offer him the faith since it is not lawful for her to continue living with him after her conversion. If he does not embrace Islam, the woman can apply to the Family Court where she resides, for dissolution of marriage on this ground. The Court must summon her husband and duly inform him that his wife has embraced Islam. If he does not embrace Islam within the period of Iddat the Court would declare the marriage dissolved.
The woman would then be entitled to enter into second marriage with a Muslim man. This procedure must be adopted in order to preclude the possibility of exploitation of religion merely for the purpose of satisfying sexual desires without any regard for one's family responsibilities. The procedure is to be given wide publicity in order that it becomes a matter of public knowledge.
20. In the present case there are convoluted questions of fact involved, such as the date of conversion of Islam by the petitioner as well as allegations in the F.I.R. Regarding her abduction, enticement by the four named co-accused and allegations of theft against all the accused. This would require a factual investigation which cannot be gone into by this Court in the exercise of its extraordinary Constitutional jurisdiction.
21. It has been prayed that the respondents be directed not to harass the petitioner illegally. It has been further prayed that respondents be directed to provide a copy of the F.I.R. Registered with them and to conclude the investigation. The copy of the F.I.R. Registered against the petitioner has been handed over to her and she has been directed to join the investigation of the case. Since the petitioner is a woman and has a suckling baby, she had been allowed bail subject to her furnishing bail bond in the sum of Rs.10,000 with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. The Investigating Officer is directed to conclude the investigation expeditiously; the petitioner shall not be arrested unless convicted by a Court of competent jurisdiction. With these observations, this petition is disposed of as having fructified.