SBARIF MASIH Versus JAMILA MARRY

ORDER

1. NASIM HASAN SHAH, J.‑ The parties, who were originally Christians, got married on 12‑4‑1965 according to the Christian Rites. After some time, the relations between the parties become strained and the respondent separated from her husband, the petitioner herein. The latter filed a suit on 19‑5‑1966 for restitution of conjugal rights which was decreed by the District Judge on 28‑2‑1970. He thereafter took out execution proceedings under Order XXI, rule 32 of the C. P. C. for attaching the salary of the respondent. The respondent submitted an objection petition before the Executing Court (District Judge), but the same was dismissed on 12‑2‑1972. Against this order, she filed a civil revision in the Lahore High Court and was granted a stay order but the same was vacated when the revision was finally dismissed by a learned Single Judge vide his order dated 12‑2‑1978. The execution proceedings were resumed against the respondent, but be could not be served for nearly three years.

2. In the meanwhile, the respondent submitted another application on 22‑3‑1981 that as she had renounced Christianity on 25‑2‑1966 and had em braced Islam and, thereafter, married Mr. Muhammad Afzal, a Muslim (on 2‑4‑1976) according to the Muslim Rites, out of which wedlock three children were born, who are still alive. Consequently the execution proceedings Could not continue Her plea was that on account of her conversion to Islam and her marriage to Muhammad Afzal according to Muslim Rites her earlier marriage with the petitioner stood ipso facto dissolved and was no longer valid. Accordingly, the decree dated 28‑2‑1970 had become ineffective and was not enforceable against her.

3. The petitioner herein filed a rejoinder contending that the as sertion of the petitioner that she had embraced Islam was incorrect and false and that in any case unless the decree dated 28‑2‑1970 was regularly set aside, the execution proceedings remained enforceable and could continue.

4. The learned District Judge, without recording any evidence in connection with the pleas raised by the parties proceeded to decide the same merely on the basis of the pleadings of the parties and held that since the respondent had contracted a marriage with a Muslim male and produced not less than three children, the earlier marriage of the respondent with the petitioner automatically become void and she no longer remained his wife. As such, the decree could not be enforced. Accordingly, the execu tion application was dismissed by his order dated 9‑4‑1981.

5. The petitioner thereupon moved the Lahore High Court by a revision petition. The learned Judge in the High Court also took the same view that the respondent having become a Muslim she could not be made to live with the petitioner who was a non‑Muslim. He, therefore, held that the execution of the decree of restitution of conjugal rights was not maintainable against her and was, therefore, rightly dismissed by the learned District Judge. The writ petition was, accordingly, dismissed vide order dated 4‑7‑1981. Hence this petition for leave to appeal.

6. The learned counsel for the petitioner has raised the following conten tions before us :‑

(a) the petitioner's application for execution could not have been dismissed without recording evidence on the question whether the allegation of the respondent that she had converted to Islam was well‑founded ; and

(b) the marriage of a Christian man and woman, according to Christian Law, is not ipso facto dissolved by conversion to Islam of the Christian wife, because even, according to Islamic Law, it is only if certain terms and conditions are fulfilled that such a marriage can stand dis solved.

7. The contentions raised require consideration. Leave is, accordingly, granted.

8. Security Rs. 500.

9. The appeal shall be made ready on the present record with liberty to the parties to add further documents, if any, and put up for hearing as early as possible.

10. S. Q. Leave granted.