PLJ 2012 Lahore 439
Present: Ijaz Ahmad, J.
ARSHAD
PETER--Petitioner
versus
Mst. SHUMAILA and 3
others--Respondents
W.P. No. 12452
of 2010, decided on 22.3.2012.
Constitution of Pakistan,
1973--
----Art.
199--Constitutional petition--Professing Christianity--Execution petition was
claimed payment as maintenance allowance and medical expenses through as
attorney--Decree for payment of maintenance allowance was passed--Quantum of
maintenance allowance past and future calculated and determined by executing
Court--Terminus ad-quem was to be determined by High
Court--Conversion from one faith to other does occur though not very
frequently--Validity--Where spouses at time of marriage were Christian and wife
renounces her religion and converts to Islam, she is that eventuality being a muslim would be one married to a non-muslim,
both professing their scriptural religions--She will be on intervention of
Court, entitled to a decree for dissolution of marriage--Court in such an
eventuality would call upon husband to embrace faith of wife and if he refuses
to do, judge can pronounce dissolution of marriage--Executing Court shall
calculate amount of maintenance allowance payable by respondent adjusting any
amount already paid towards satisfaction of decree--Petition partly accepted. [P. 441] A & C
Constitution of Pakistan,
1973--
----Art.
199--Constitutional petition--Professing Christianity--Entitlement of
maintenance allowance only till she rejoins or on completion of period of iddat--Laws of Christianity governing spouses at time of
marriage--Divorce could only be pronounced under same religion--Legality of
alleged divorce pronounced--Validity--Christian woman as his wife, can take
another wife according to shariat--Divorce which was
not denied by woman but pronounced in accordance with husband's new religion
was legal subject to limitations and safeguard provided by Holy Quran--Having
pronounced divorce the same would be effective after expiry of period of iddat--Woman would be entitled to maintenance allowance
till that date. [P. 441] B
Mr. Mobeen Ahmad Siddiqui, Advocate
for Petitioner.
Mr. Aric John, Advocate for Respondent No. 1.
Date of hearing:
22.3.2012.
Order
Respondents No.
1 and 2 professing Christianity were married to each other in the year 2003.
The Respondent No. 1 instituted a suit for payment of maintenance allowance
against Respondent No. 2 through the petitioner as his attorney and for payment
of maintenance allowance in favour of her minor
daughter Khulda Simran and
for medical expenses incurred at the time of birth of the child. A decree for
payment of maintenance allowance was passed on 07.03.2007 by the learned Judge
Family Court, Gujranwala, in favour of Respondent No.
1 only to the tune of Rs.5,000/- per month with effect
from 11.07.2003 till her rejoining the petitioner or till the completion of
period of `iddat', in case she was divorced, and for
payment of Rs. 15,000/-, the expenses incurred on the birth of the child. No
appeal was preferred.
2. The execution petition was made wherein
Respondent No. 1 claimed the payment of Rs. 6,90,000/-
as maintenance allowance and medical expenses. The petitioner has been
prosecuting the case of Respondent No. 2 as his attorney before the learned Judge Family Court/Executing Court.
The petitioner complying with the order dated 21.07.2010 passed in this writ
petition has already paid Rs. 300,000/-.
3. It is contended by the learned counsel for
the petitioner that at whatever rate, the total amount of payable maintenance
allowance may be calculated, even then it does not come to Rs. 6,90,000/- and
that the petitioner or Respondent No. 2 cannot be made to satisfy the decree
for that amount. He substantiates his arguments relying on a fact that
Respondent No. 2 had converted to Islam in the year 2007 and had divorced
Respondent No. 1 on 20.02.2007, therefore, Respondent No. 1 in the terms of the
judgment and decree could be entitled to maintenance allowance only till she
rejoins Respondent No. 2 or on the completion of period of `iddat'.
4. On the other hand, it is contended by the
learned counsel for Respondent No. 1 that the marriage was solemnized in
accordance with the Laws of Christianity governing the spouses, at the time of marriage, therefore the divorce could only be pronounced under
the same religion. Thus he contests the legality of the alleged divorce
pronounced by Respondent No. 1 and argues that the maintenance allowance shall
continue to be paid to Respondent No. 1 until she rejoins Respondent No. 2 or
is divorced in accordance with the religion of Christianity.
5. I have heard the learned counsel for the
petitioner, for Respondent No. 1 and also gone through the record.
6. The quantum of maintenance allowance past and
future has to be calculated and determined by the Executing Court. A terminus ad-quem is to be determined by this Court. The point of time
is when the `Talaq' pronounced by Respondent No. 1
would become effective. The Christianity and Islam, both are proselytizing
religions, the conversion from one faith to other does occur though not very
frequently. In a case where the spouses at the time of marriage were Christian
and the wife renounces her religion and converts to Islam, she in that
eventuality being a Muslim would be one married to a non-Muslim, both professing
their scriptural religions. She will be on the intervention of the Court,
entitled to a decree for dissolution of marriage. The Court in such an
eventuality would call upon the husband to embrace faith of the wife and if he
refuses to do so, a Judge may pronounce the dissolution of marriage. In the
case of husband renouncing the Christianity and embracing Islam, the convert
Muslim husband would have scriptural (Katibia) woman
as his wife. Such a union is permitted by Islam and may continue till the wife
obtains a decree for dissolution of marriage or the husband pronounced "Talaq" in accordance with law of the religion
professed by him. Reliance is placed on (AIR 1935 Bombay 5) titled "Muncherji Cursetji Khambata vs. Jessie Grant Khambata"
(PLD 1963 Supreme Court 51) titled "Syed Ali Nawaz Gardezi vs. Lt. Col.
Muhammad Yusuf" and (PLD 1958 (WP) Lahore 431) titled "FROOQ LEIVERS
vs. ADELAIDE BRIDGET MARY". The husband, keeping a Christian woman as his
wife, can also take another wife according to Shariat.
The divorce which is not denied by Respondent No. 1 but pronounced by
Respondent No. 2 in accordance with the husband's new religion is legal subject
to limitations and safeguard provided by the Holly Quran. Respondent No. 2
having pronounced divorce to Respondent No. 1 on 20.7.2007, the same would be
effective after the expiry of period of `Iddat'. The
Respondent No. 1 will be entitled to the maintenance allowance till that date.
The Executing Court
shall calculate the amount of maintenance allowance payable by the Respondent
No. 2 adjusting any amount already paid by him towards the satisfaction of the
decree. This petition in the above terms, stands
partly accepted.
(R.A.) Petition partly accepted
