SECTION 4 OF THE MUSLIM FAMILY LAWS ORDINANCE: THREE ALTERNATIVE INTERPRETATIONS

 

Section 4 of the Muslim Family Laws Ordinance, 1961, dramatically altered the traditional succession law of both the Sunni and Shia Branches of Islamic jurisprudence in circumstances where the propositus leaves among his surviving relatives an 'orphaned grandchild', i.e. a grandchild whose parental link with the propositus predeceased the propositus. This section reads: -‑

* Center for Asian Studies, University of Texas, Austin, Texas, U.S.A.

            In the event of the death of any son or daughter of the propositus before the   opening of succession, the children of such son or daughter, if any, living at the             time     the succession opens, shall per stirpes receive a share equivalent to the      share which such son or daughter, a, the case may be, would have received if       alive.

Although the wording of section 4 would appear to be clear and unambiguous three High Courts have interpreted this section in three different ways:

(1) Peshawar: Mst. Zarina Jan v. Mst. Akbar Jan [1]

Shah Zaman                                                                         |                         ________________________|________________________                                               |                                                                                               |                         |                                                                                               |                  daughter                                                                                      son                                                                                       (predeceased)                                                                                                                         |                                                                                                                   daughter

This case concerned succession to the estate of one Shah Zaman, who left him surviving a daughter and the daughter of a predeceased son. It was agreed that the first step in the distribution of the estate was to allot two-thirds as the notional share of the predeceased son, and one-third to the daughter. The daughter, however, contended that the two-thirds share notionally allocated to the predeceased son should then be distributed as if it were his estate and he had died leaving a daughter and an agnatic sister. According to such a calculation, the daughter of Shah Zaman would have taken her one-third share in her father's estate, plus one-half of the two-thirds share which had been notionally allocated to her predeceased brother; the orphaned grand-daughter of Shah Zaman would have taken one-half of the two-thirds share notionally allocated to her predeceased father.

The lower appellate Court accepted the argument of Shah Zaman's daughter and, on the basis of the calculations outlined above, awarded her two-thirds of her father's estate (one-third as heir to her father and one-third as heir to her predeceased brother).

The Peshawar High Court accepted the granddaughter's appeal, holding that the Ordinance, in terms, conferred upon the orphaned grandchild a share 'equivalent' to that of the deceased parent.

            Under the Ordinance Mst. Zarina daughter of [predeceased] Mir Afzal is     entitled to inherit the same share to which her father Mir Afzal was entitled in the      inheritance of his father Shah Zaman. The reason is that the Ordinance by       adopting the principle of per stripes distribution of the inheritance meant to keep            intact the share of predeceased son or daughter to be inherited by his son or    daughter, i.e. according to it, the heirs of the predeceased issue will inherit from         propositus what their predecessor-in-interest would have inherited. [2]

            (2) Lahore: Kamal Khan v. Mst. Zainab [3]

__________________________________________                         |                                                                                   |                   Brother                                                                 Sufaid Khan           (predeceased)                                                        |                         |                                                                                   |                                                         son                                                                              son                                                                              (predeceased)                                                                                       |                                                                                       |                                                                    Daughter

The controversy here concerned succession to the estate of Sufaid Khan; the contenders were the daughter of his predeceased son, and the son of his predeceased brother. Both lower Courts awarded the whole estate of Sufaid Khan to his agnatic grand-daughter.

The Lahore High Court, however, allowed the nephew's appeal, dissenting from the view of the Peshawar High Court in Mst. Zarina Jan, [4] and accepting an argument analogous to that urged on behalf of the daughter in that case.

According to the Lahore High Court, although the predeceased child of the propositus is deemed to be alive for the purpose of the initial calculation in the distribution of his parent's estate, the share allotted to the predeceased child in this notional distribution is then in turn distributed among all his heirs as if he had died immediately after his parent. Thus, in the circumstances of the case before it, the Lahore Court concluded that the predeceased son would notionally take the whole of his father's estate. This share would then be distributed among the heirs of the son, i.e. his daughter and his male agnatic cousin, the daughter taking one-half and the cousin taking the remaining half. The Lahore Court explained its interpretation of section 4 as follows:

            The law provides that the parent of such a grandchild will be deemed to be      alive for the purpose of succession. It cannot, however, be assumed that the          law ever intended to give a share to the grandchild more than what would have             been his due if the parent was actually alive when the succession opened.

            The whole process of succession depends on the fiction that Rajoo [the             predeceased son] was alive at the time of the death of Sufaid Khan. In this        event Rajoo will naturally inherit the entire estate of his father being the only       son but he can [only] pass on such of his estate to his children as is permissible             under the Islamic law of inheritance. Mst. Zenib being the only surviving child            [of the predeceased Rajoo] she cannot get more than one-half of the estate of   Rajoo and the remaining half must revert to the collaterals. If the rule laid       down in the Peshawar judgment [5] is to be adopted then Mst. Zenib will get             twice the share allowed to her under the Islamic law of inheritance. [6]

The objection that according to the method of calculation adopted by the Peshawar High Court, the agnatic grand-daughter in competition with the grandfather's nephew would 'get twice the share allowed to her under the Islamic law of inheritance' [7] is unconvincing. According to the calculations adopted by the Lahore High Court, the agnatic grand-daughter received exactly what she would have received if the Ordinance had not been enacted. Since the primary purpose was precisely to alter and improve the position of the orphaned grandchild, it should come as no surprise if, under the terms of the Ordinance, she should receive a larger share than she would have under 'the Islamic law of inheritance.' The Ordinance was basically designed to protect the interests of the orphaned grandchild in competition with a surviving child, but this is no reason for assuming that the interests of the orphaned grandchild in competition with an agnatic collateral further removed should not be even more worthy of protection.

With respect, the Lahore Court re-wrote section 4 and proceeded as if that section read:-‑

            In the event of the death of any son or daughter of the propositus before the   opening of succession, such predeceased child shall be allotted a notional            share equivalent to what he or she, as the case may be, would have received if    alive. This notional share shall then be distributed among the heirs of the             predeceased child, as if that child had died immediately after his or her parent.

            This is clearly not what the Ordinance actually says.

(3) Karachi: Muhammad Fikree v. Fikree Development Corporation, Ltd. [8]

I.M.A. Fikree                                                                         |                                                                         |             ____________________________________________________________|_________________________             |                                                                                   |               6 daughters                                                                                  son                                                                                        (predeceased)                                                                                                 |                                                                                               ______|____________                                                                                                           |                                   |                                                                                             son                          daughter

At issue in litigation was property left by Ibrahim Muhammad Aqil Fikree, who was survived by six daughters and the son and daughter of a predeceased son. The grandchildren claimed one-third of the estate, arguing that the daughters collectively should take two-thirds. This calculation would be correct were it not for the Muslim Family Laws Ordinance. The daughters argued that the grandchildren should share in the one-fourth of the estate which their father (the predeceased son of P) would have taken if alive.

The Karachi High Court ruled that the Ordinance did not apply in the circumstances of the case, because in the absence of the Ordinance, the grandchildren would not be totally excluded from a share of their grandparent's estate. The learned Judge explained:-‑

            [S] section 4 of the Muslim Family Laws Ordinance will be applicable only in   those cases where the son and daughter of a predeceased son or daughter are             sought to be excluded on account of [the] existence of other heirs of [the] same           category [as that] to which the predeceased son or daughter belonged. [9]

Again, the Court has re-written the clear terms of section 4, proceeding as if it read:-‑

          In the event of the death of any son or daughter of the propositus before the   opening of succession, the children of such son or daughter, if any, living at     the time the succession opens, if they would otherwise be totally excluded     from any share in the estate of their grandparent, shall per stripes receive a     share equivalent to the share which such son or daughter, as the case may be,            would have received if alive.

Again, this is not what the Ordinance actually says.

This case is interesting because it illustrates the only situation in which the grandchild would be better off in the absence of the Ordinance than in its presence; this can only occur when there are more than two daughters and a son's son. This curious result is a function of the fact that in Hanafi law, the daughters collectively, no matter how many there may be, are not permitted to take more than two-thirds of the estate in the presence of a male agnate. If they are present with their brother, daughters take with the son as agnatic co-sharers; each will take a share equal to hale that taken by her brother. However, if their brother is dead, leaving the daughters to take as Quranic heirs rather than co-sharers, their collective share is limited to two-thirds, with the remainder going to any male agnate who may be present.

This rule of Hanafi law contrasts sharply with the rule of Shia law, in which the daughter, as a direct descendant of the propositus, is as strong an heir as is a son, and will totally exclude not only any agnatic collaterals but also a son's son. [10]

Perhaps the fact that the Ordinance improved, in certain circumstances, the position of the Hanafi daughter should be considered an added benefit of this enlightened legislation, rather than as a reason for judicial re-writing of the statute.

[1] P L D 1975 Peshawar 252.

[2] Ibid, p. 253

[3] P L D 1983 Lahore 546.

[4] P L D 1975 Peshawar 252.

[5] Mst. Zarina Jan v. Mst. Akbar Jan, discussed above.

[6] P L D 1983 Lah. 546 at p.548.

[7] The reference here is clearly to 'Sunni law of inheritance'. Even accepting the argument of the Lahore High Court--to the effect that the share notionally allotted to the predeceased child is to be redistributed as if he had then died, rather than being passed directly to his children--if the parties were Shias, the daughter would exclude the agnatic sister in Mst. Zarina Jan (P L D 1975 Pesh. 252), and the male agnatic collateral in Kamal Khan (P L D 1983 Lah. 546).

[8] P L D 1988 Karachi 446.

[9] Ibid., p.450.

[10] See Lucy Carroll, The Hanafi Law of Intestate Succession: A Simplified Approach,' (1983) 17 Modern Asian Studies, pp.629-670; and Lucy Carroll, The Ithna Ashari Law of Intestate Succession: An Introduction to Shia Law Applicable in South Asia,' (1985) 19 Modern Asian Studies, pp. 85-124.

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POLYGAMY IN PAKISTAN AND OTHER MUSLIM COUNTRIES

To tackle with the problem of polygamy successfully a Muslim, at the first instance, has to turn to Holy Quran for inspiration and guidance. The verse dealing with the problem of polygamy, lays down that the husbands have the option of having (upto) four wives at a time, provided they possess the capacity of dealing out justice evenly amongst them.

The second part of the verse:

directs a Muslim, in case of his being apprehensive of not being able to deal out justice and maintain equality among his wives, to be content with one only.

Only a `leave'

It is a `leave' with limitations put to it. In the face of this direction, one has to ponder whether polygamy, in an unrestricted manner, should be allowed in Pakistan and, for the matter of that, in other parts of the Muslim world.

Dealing out justice and maintaining equality of treatment among the co­-wives, are conditions precedent to having more than one wife at a time. The conditions imposed make polygamy beyond the reach of the Muslims of Pakistan, in general. In their daily conduct the Muslims have so deteriorated that the fear of God and the idea of mutual obligations have almost become extinct in them. Such Muslims are undoubtedly expected to misuse the option of polygamy granted to them by religion. They are expected to neglect criminally one wife in preference to the other. A polygamous family, under the circumstances, would present an unhappy picture altogether different from the one envisaged by the Holy Quran. The existing wife or wives would, invariably, be neglected and children from them would be devoid of proper love, sympathy and care of their father. Economic and other complicated matters of life would stare the children in their faces. Consequently, the entire family would be a prey to famine and misery.

Intervention of State:

A Muslim State, therefore, on principle has to intervene and impose restrictions, through proper legislative measures on the option or leave of having more then one wife at a time.

The intervention of the State, here, must not be construed as interference in religious injunction, inasmuch as in terms of 'fiqh' the option, of having more than one wife, is merely a `Rukhsat' granted by God, and not 'azimat' Sayyid Muhammad Rashid Raza, a learned scholar of Egypt holds that polygamy, in view of the possibility of mischief, arising from it, must be put a stop to. Islam, indeed, empowers the `Imam' to stop people from committing an act, which, though legal (MUBAH), has the possibility of creating an evil. Achieving substantive good is better than allowing the existence of the possibility of evil.

What Mufti of Egypt says:

Another famous scholar of Egypt late Mufti Muhammad Abdohu, discussing polygamy is his famous commentary of the Holy Qur'an Al‑Manar (Vol. 4 PP349‑50) argues that in the early period of Islam polygamy, though it served the purpose of mitigating the tribal differences and strengthening the family ties, had no chance of showing up its dark aspects due to the fresh religious zeal and deep religious knowledge. If the present day Muslims were possessed of the same untainted religious knowledge and followed the tenets of Islam with the same strictness and bowed their heads in submission to the decree of God and to biddings of the Holy Prophet in the same manner as did the Muslims of the early period of Islam, then alone polygamy could safely be adopted by them now. In the context of modern downward trend of the Muslim society, however, adopting polygamy as sanctioned by religion, is, prima facie, an impossibility. The spirit and inherent meaning of religious sanction with respect to polygamy has to be correctly assessed and appreciated before it is made applicable, in the prevailing conditions of the Muslim Society. There is direct emphasis on "maintaining justice and equality among the co‑wives". It is a formidable condition, the fulfilment of which is beyond the capability and strength of the present day Muslims. Polygamy today has, therefore, no leg to stand upon. It must, consequently, be given a go‑by.

In some Muslim countries:

Restrictions have already been placed on having more than one wife in Iraq and Meracoo. Second marriage, during the existence of a wife, there depends upon obtaining previous permission of the Qadi appointed for the purpose.

The obtaining of such permission in Syria depends on the sound financial position of the husband intending to have another wife. Iraq, in such cases, seeks the fulfilment of two conditions viz. the husband's financial position must be secure and that for the second marriage there must be a pressing righteous cause based on Shariat. In Tunisia, there is, however, complete prohibition to polygamy, contravention whereof has been made punishable.

Pakistan:

Pakistan, too, with a view to place restrictions on polygamy, has formulated laws known as "Muslim Family Laws Ordinance, 8 of 1961". Section 6 of the said Ordinance has imposed restrictions on polygamy. The section reads thus:‑‑

Polygamy:

(1) No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance.

(2) An application for permission under subsection (1) shall be submitted to the Chairman in the prescribed manner, together with the prescribed fee, and shall state the reasons for the proposed marriage, and whether the consent of the existing wife or wives has been obtained thereto.

(3) On receipt of the application under subsection (2), the Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such conditions, if any, as may be deemed fit, the permission applied for.

(4) In deciding the application the Arbitration Council shall record its reasons for the decision, and any, party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revisions in the case of West Pakistan to the Collector and, in the case of East Pakistan, to the Sub‑Divisional Officer concerned and his decision shall be final and shall not be called in question in any Court.

(5) Any man who contracts another marriage without the permission of the Arbitration Council shall‑

(a) pay immediately the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives, which amount, if not be paid, shall be recoverable as arrears of land revenue; and

(b) on conviction upon complaint be punishable with simple imprison­ment which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

The Provincial Governments of East and West Pakistan, in pursuance of the said Ordinance, have made provisions and formulated rules on the basis of which an Arbitration Council has been empowered to grant permissions for contracting a second marriage. Relevant Rules framed and provisions made in this connection read thus:‑

"14. In considering whether another proposed marriage is just and necessary during the continuance of an existing marriage, the Arbitration Council may, without prejudice to its general power to consider, what is just and necessary, have regard to such circumstances, as the following amongst others:‑

Sterility, physical unfitness for the conjugal relation, wilful avoidance of a decree for restitution of conjugal rights, or insanity on the part of an existing wife."

The rules framed and the provisions made do not, in my humble view, cover the entire ground. The righteous cause based on shariat ought to have been made the sole basis for granting permission to contract another marriage during the existence of the wife or wives. The righteous cause based on shariat has a range that covers all the circumstances arising in such cases. Obtaining permission from the existing wife per force, and constituting an Arbitration Council wherein the existing wife is also represented, are points that stretch the matter too far and make the same unnatural and illogical. Empowering a Family Court to grant permission for contracting second marriage after a summary enquiry conducted in the light of the provisions laid down by Shariat, would have been more appropriate in the circumstances Of the case.

By TANZILUR RAHMAN

MARRIAGE WITH A KITABIYAH

A Muslim male may contract a valid marriage with a Kitabiyah, i.e., with one who is a believer in a Revealed Book (Al‑Nasafi, Abdullah b. Ahmad b. Mahmood (d. 710 A. H.), Kanz‑ud‑Daqaiq (Delhi), Kitab‑al‑Nikah, p. 99.).

Who is Kitabiya?

The term "Ahl‑al‑Kitab" applies, in general, to the followers of Christianity and Judaism. If one of the parents is `ahl‑al‑Kitab' and the other is a 'mushrik' according to Abu Hanifah, the woman shall be deemed to be Kitabiyah (Fatawa‑i‑Alamgiri'yah (Cawnpore), Vol. II. Kitab‑al‑Nikah, p. 8.). According to Shafi'i and Ahmad‑ibn‑i‑Hanbal such a woman shall not be deemed to be Kitabiyah and a Muslim male cannot marry her 3 Marriage with Kitabiyah and Quran (Ibn‑i‑Qudamah Maqdisi (d. 620 A. H.) AI‑Mughni (Cario, 1367 A. H.) Vol, VI. p. 593.):

The Holy Quran permits the Muslims to contract marriage, with Kitabiyah. It is thus laid down in Sura Maidah:

This day are all things

Good and pure made lawful

Unto you. The food

of the people of the Book

is lawful unto you

And yours is lawful.

Unto them.

(Lawful unto you in marriage)

Are (not only) chaste women.

Who are believers, but,

Chaste women among

The People of the Book,

Revealed before your time; (Sura : Maidah 6. Trans. by A. Yousaf Ali)"

View of Abdullah Ibn‑i‑Umar:

There is no difference of opinion on the point in question amongst the four Imams viz. Abu Hanifah, Malik, Shafi'i and Ibn‑i‑Hanbal. It is, however, reported that Ibn‑i‑Umar, one of the Companions of the Holy Prophet, considered the contract of marriage of a Muslim male with a Kitabiyah as invalid.

There are, on this point, three statements of Ibn‑i‑Umar:‑

(i) There is no harm in taking the food of ahl‑al‑Kitab, but entering into marriage contract with their women is undesirable (MAKROH).

(ii) "God, the Almighty, has prohibited Mushrik woman upon the Muslim male, and I do not know whether there can be any greater `shirk' than considering Isa Ibn‑i‑Maryam, or for the matter of that any person as God". This, Ibn‑i‑Umar said, when questioned about contracting marriage with Christian and Jew women.

(iii) In reply to the question of one Maimun b. Mehran to the effect that they lived in a part of land where they were so interlinked with ahl‑al‑Kitab that they had to marry their women and partake their food, Ibn‑i‑Umar read out the ayat from Holy Quran permitting the marriage with Kitabiyah and then read out the ayat from the Holy Quran prohibiting the marriage with mushrikat.  Maimun responded back by saying that they too had read what Umar had read out to him, in spite of that, they married the ahl‑al‑Kitab women and partook their food. Ibn‑i‑Umar, in reply, simply read out the said two verses again.

Abu Bakr Ahmed b. Ali al‑Razi al‑Jassass in his famous book "Al‑Ahkam‑al‑ Quran" Abi‑Bakr Ahmad b. Ali Al‑Razi al‑Jassass (d. 370 A. H.) Al‑Ahkam al‑Qur'an (Cario) Chapter on Nikah‑al‑Mushrikat, Vol. 1, pp. 332‑33 points out that Ibn‑i‑Umar's avoidance of a clear reply over the question of marriage with Kitabiyah and the recitation of the two verses by him repeatedly was a proof of the fact that he could not make up his mind and form a conclusive opinion on the point.

Ibn‑i‑Umar's view that the marriage with a Kitabiyah was undesirable was not based on prohibition or forbiddance (TEHREEM), but, in fact, relates to the Kitabiyah of "Dar‑ul‑Harb" i.e., those ahl‑al‑Kitab who live outside the territories of Muslim State where the laws of Shari'at are not in force.

Historical Study of the Question:

Historical study of this question reveals that the Companions of the Holy Prophet (SAHABA) and Tabi'un, in general, regarded the contracting of marriage with a Kitabiyah as legal. Nailah, the wife of Uthman, the third Caliph, was a Christian at the time of marriage. Talha ibn‑i‑Abdullah also married a Jew woman of Syria. Huzaifah b. al-­Yaman, as well, married a Jew woman.

Jassass made a pointed reference to the above‑said marriages in his book, Ahkam at‑Qur'an. He argued, if marriage with a Kitabiyah was illegal the Companions of the Holy Prophet would never have entered into such marriage contracts. Jassass, further, maintained that among the Tabi`un, Hasan b. Ziyad, Ibrahim Nakh'i and Sha'bi were of the view that marriage with a Kitabiyah was quite legal, that there was no instance of a single Companion or Tabi`i who was against such marriage. Therefore, it could not be inferred from the statements of Ibn‑i‑Umar that he considered a Muslim's marriage with a Kitabiyah as illegal. As a matter of fact, he held the view that such a marriage was undesirable (MUKROH) and that the undesir­ability (KARAHIYA) was not owing to prohibition (TEHREEM). It was due to apprehension lest the corrupt Kitabiyah women might pollute the faith and character of Muslims.

View of Ibn‑i‑Abbas:

According to Ibn‑i‑Abbas, one of the Companions of the Holy Prophet, Muslims are permitted to marry only those Kitabiyas who are chaste and are the subjects of Muslim State. Marriage with Kitabiyah of Dar‑al‑Harb and Dar‑al‑kufr, according to him, is not permitted. He contended that God's command to marry relates to those Kitabiyah women who lived in Dur‑al­-Islam. He maintained that to love those who were the enemies of God and of the Holy Prophet could not be the conduct of ahl‑al‑Iman and so the marriage with them was not permitted (Al-Qurtabi, abu Abdullah Mohammad b. Ahmad Tafsir Jame' al Ahkam al‑Quran (Cairo, 1936 A. D ) Vol. III, p.  68-69).

Al‑Jassass, in his aforementioned book, rebutting the arguments of Ibn‑i‑Abbas stated that the distinction which Ibn‑i‑Abbas made between Kitabiyah zimmiyah and Kitabiya Harbiya was without foundation. The verse made no distinc­tion between them. Ibn‑i‑Abbas was, therefore, wrong in particular­rising a general provision of law laid down in the Holy Qur'an. Said b. Musayyib and Hasan Basri, too, were of the view that the verse was of a general nature, indicating a general command. There could, therefore, be no justification for making distinction between zimmiyah and non‑zimmiyah, so far as marriage with Kitabiyah was concerned. The correctness of this view has been upheld and followed by the Ulama in general.

Besides, the correct answer to the contention of Ibn‑i‑Abbas can be that the obligation to kill or fight someone does not make the marriage with that person illegal. It has, in fact, no bearing on the validity of marriage. If obligation of killing some‑one could be the basis of prohibition, the marriage with Khawarij and Baghi (outlaws) must have been held to be illegal, according to the following verse of the Holy Qur'an:

If two parties among

The Believers fall into

A quarrel make ye peace

Between them: but if

One of them transgresses

Beyond the bounds against the other

Then fight ye (all against

The one that transgresses)

Until it complies with     

The Command of God;           

But if it complies, then

Make peace between them

With justice, and be fair

For God loves those

Who are fair (and just)

God has commanded to fight with them. (Sura : Hujrat 9. Trana. by A. Yousaf Ali.)

Correct position:

The correct position, as it appears to me, is that a Muslim's marriage with Kitabiyah non‑zimmiyah or harbiyah, though legal, is undesirable as it puts in jeopardy the upbringing of children as Muslims. The children, under the influence of their mother may adopt un‑Islamic ways abhorrent to Islamic society and culture. This view also finds support from Al‑Mabsut of Sarakhsi. (Shamsuddin Al‑Sarakhsi (d. 482 A. H.) AI‑Mabsut (Egypt, 1324 A. H.), Vol. V, p.50) Hozaifah married a Jew lady. Information of this reached Umar, the second Caliph. He asked Hozaifah to terminate the marriage. On Hozaifah's inquiry whether the marriage with Kitabiyah was prohibited, Umar in answer said, "No it is not prohibited, but I fear that you people may fall prey to shameless and infidel women of ahl‑al‑Kitab".

Marriage with Kitabiyah and Shia View:

There is a consensus of opinion, among the Sunni School of fiqh that marriage with Kitabiyah is undesirable though valid. There is, however, difference of opinion among Shia School of thought. The Usuliyyah and Motazitah go with Hanafis and consider marriage with Kitabiyah as valid while Akhbari Shias hold that permanent marriage with a non‑Muslim (woman) is not valid. They say that only Mut'a is permitted with Kitabiyah (Al-Hilb, Najamuddin Jaffer (d. 474 A. H.) Sharai"al‑Islam (Iran), Pt. II, p. 181.) In Kafi, Tafsir Majma` al‑Bayan and Tafsir Ayashi, it is stated that, according to Imam Baqar the command of God in the verse has been abrogated by another command in verse. This view of Imam Baqar is incorrect for three reasons:‑

(i) The second verse as relied upon by Imam Baqar, was revealed concerning those men and women who migrated to `Dar‑al‑Islam' from Dar‑al‑Harb, and those wives (or husbands) who remained in Dar‑al‑Harb in the state of Kujr. The marriage stood dissolved by conversion to Islam or by migration to Dar‑al‑Islam from Dar‑al‑Harb, of either of the spouses. Qur'an, therefore, has enjoined upon those males who were converted to Islam, not to take custody of their Kafir women, i.e., not to have conjugal relations with them.

(ii) The term al‑kawafir is for mushrikin (MUSHRIKEEN) and Kufar (KUFFAAR) and not for ahl‑al‑Kitab. They stand on different footing from ahl‑al‑Kitab.

(iii) If the command in the second verse, in accordance with Imam Baqar's view is taken to be correct, it will, then, be just a general direction and Kitabiyahs will, thus, come under exception.

The view of Akhbari Shias that the marriage of a Muslim male with Kitabiyah is not legal, is, therefore, contrary to the text of the Holy Quran.

Our Supreme Court in Ali Nawaz Gardezi v. Lt.‑Col. S. M. Yousuf reported in P L D 1963 S C 51 also appears to have the same view. Mr. Justice S. A. Rahman, who wrote the judgment, observed as follows:--

"In the High Court the validity of the complainant's marriage to Renate in England was also challenged on the ground that the complainant was a Shia, and under his personal law, his marriage to a non‑Muslim lady was invalid. Reliance was placed in this connection on the rule of private international law that the formal validity of a marriage had to be judged by the lex loci contractus, but that the capacity of the parties to enter into the marriage bond had to be determined according to the law of the domicile of the party concerned. (See inter alia, Brook v. Brook Halsbury's Laws of England, Vol. 7, p. 91, para. 165, III Edition). The learned Single Judge as well as the Appellate Bench held, however, that the marriage of the complainant and Renate, at Hull, was a perfectly valid one. Syed Amir Ali, in his well­known text‑book on Muhammadan Law, 4th Edition, at p. 327 et seq, has discussed the question of validity of a Shia Muslim's marriage to a non‑Muslim woman of one of the scriptural sects. He has pointed out that such a marriage would be valid among Usuli Shias, and a large section of the Akhbari Shias, though one school of thought represented by the author of the treatise "Sharia‑ul‑Islam" (on which Bailie's Digest, Vol. Il is mainly based) has condemned such a marriage as invalid. The complain­ant in the present case declared on oath that he followed the Shia faith, but in case of a conflict between a clear. Quranic injunction and a doctrine of the Fiqh he would follow the Qur'an. He appears, therefore, to be a member of the Usuli persuasion. The Qur'an clearly permits a marriage of a Muslim with a woman professing one of the scriptural religions. In the circumstances, Mr. Mahmood Ali on behalf of the respondent, did not seriously contest the concurrent findings of the trial Judge and the Appellate Bench, that the marriage of the complainant with Christa Renate Sonntag, solemnized in England, was valid. This view we consider to be plainly right on the facts of this case."

Marriage of a Muslim male with a Kitabiyah in Pakistan.

According to section 4, Christian Marriages Act of 1872, as adapted by Adaptation of Central Acts and Ordinances Order, 1949 (G. G. O. 4 of 1949) every marriage between persons one or both of whom is or are a Christian or Christians shall be solemnized in accordance with the provisions of the Christian Marriages Act, 1872, and any such marriage solemnized otherwise than in accordance with the provisions of the said Act shall be void. Section 5 of the said Act lays down that such marriage may be solemnized in Pakistan:‑

(1) by any person who .has received episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of which he is a Minister;

(2) by any Clergyman of the Church of Scotland, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of Scotland;

(3) by any Minister of Religion licensed under this Act to solemnize marriages;

(4) by, or in the presence of a Marriage Registrar appointed under this Act;

(5) by any person licensed under this Act to grant certificates of marriages between Native Christians.

It is apparent from the above provisions of law that if a Muslim in Pakistan marries a Christian woman it is obligatory that his marriage be solemnized under the provisions of the Christian Marriages Act of 1872, and if such marriage is not performed according to the Christian Marriages Act of 1872, the marriages shall be void. Further, according to section 68 of the said Act whoever, not being authorized by section 5 of this Act to solemnize marriage, professes to solemnize the marriage between such persons, one or both of whom are Christian or Christians, shall be punished with imprisonment which may extend to 10 years or in lieu of sentence an imprisonment of 7 years or punishment with transportation of a term of not less than seven years and not exceeding 10 years and shall also be liable to fine. In the case of Zarina Tassadaq Hussain v. Qazi Tassadaq Hussain P L D 1953 Lah. 112 the question arose as to the validity of the marriage of a Muslim with a Christian woman not solemnized in accordance with the provisions of section 5 of the Christian Marriages Act, 1872. In this case Mst. Zarina was a Christian at the time of marriage. She later on accepted Islam. The marriage between the parties took place on 16th October 1934 in Badshahi Mosque, Lahore, according to Muslim rites and the Nikah was performed by the Imam of Badshahi Mosque. According to Islamic Law a Muslim man could marry a Christian woman and there was nothing in the Islamic Law to prevent such marriages from being solemnized according to Muslim rites but section 5 of the Christian Marriages Act of 1872 has altered or abolished the pure Islamic Law and the marriage according to the provisions of the above Act would be void, if it is not solemnized in accordance with the provisions of the said Act.

It is a pity that, after a constitutional guarantee that the law of Pakistan would be in conformity with Qur'an and Sunnah, such a law as the Christian Marriages Act and other like laws still stand on the statute book of the Islamic Republic of Pakistan. The law making machinery of Pakistan, in spite of a decision of our High Court (Zarina Tassadaq Hussain v. Qazi Tassadaq Hussain P L D Lah. 1953, 112) has made no move so far in this direction.

Should we hope that the Christian Marriages Act, 1872, and such other like Acts would be reviewed, in the light of the Principles of Law Making as laid down in the Constitution of Pakistan and that the provision of Islamic Law would be restored to its proper form and spirit.

By TANZIL‑UR‑RAHMAN