NOOR FATIMA Versus STATION HOUSE OFFICER

TARIQ SALEEM SHEIKH, J.--- On 04.05.1999, Ms. Kiran Masih and Amir Bhatti (Respondent No.3), both Christians, married and thereafter lived together as husband and wife and raised a family. On 25.02.2024, Respondent No. 3 pronounced divorce, but Kiran subsequently came to know that, under Christian Law, a valid dissolution requires a judicial decree. On 31.07.2024, she instituted a petition under sections 7 and 10 of the Divorce Act, 1869 (the Divorce Act ), before the Civil Court at Bahawalpur, seeking dissolution of marriage on the grounds of cruelty and mental incompatibility. Her petition was dismissed on 02.10.2024 for non-deposit of the requisite process fee. On 05.10.2024, she embraced Islam and adopted the name Noor Fatima (hereinafter referred to as the Petitioner ). On 12.12.2024, she entered into marriage with Adnan Abdullah, a Muslim. She alleges that Respondents Nos. 1 and 2, the SHOs of Police Stations Baghdad-ul-Jadeed, Bahawalpur, and City Lodhran, are harassing her at the instance of Respondent No.3 by summoning her to the police station. She asserts that she is lawfully married to Adnan Abdullah and that the Respondent SHOs have no authority to interfere in her matrimonial life. Through this petition under Article 199 of the Constitution, she seeks a writ directing the Respondent SHOs to perform their functions in accordance with law and not to exceed their jurisdiction.

2. This Court issued notices to the Respondents who have contested this petition. The Respondent SHOs have refuted the allegation of abuse of authority. On the other hand, Respondent No.3 contends that his marriage with the Petitioner subsists notwithstanding her conversion to Islam. He argues that the Petitioner could not remarry without obtaining a decree of divorce from the court. Her petition under the Divorce Act having been dismissed, her marriage with Adnan Abdullah is illegal, and they both are liable to be prosecuted.

3. This petition raises a critical question as to whether the conversion of a married Christian woman to Islam ipso facto terminates her marriage, and whether she may lawfully contract a second marriage with a Muslim man in the absence of a formal decree of divorce under the existing legal framework?

4. Considering the importance of the above-mentioned legal issue, this Court appointed Mufti Dr. Khaleeq-ur-Rehman and Mr. Kashif Alexander, Advocate, as amici curiae . They filed their submissions in writing.

5. According to Mufti Dr. Khaleeq-ur-Rehman, if a non-Muslim woman, such as a Christian, converts to Islam, her marriage with her non-Muslim husband does not terminate automatically upon such conversion. However, physical relations between them become impermissible until the husband also accepts Islam. In jurisdictions where a judicial system based on Islamic law exists, the proper course is that the non-Muslim husband be invited to embrace Islam before the court. If he does, the marriage remains intact, and there is no need for a new Nikah . On the other hand, if he refuses, the marriage stands dissolved, and the woman must observe Iddat , and after completing it, she may marry any Muslim man. Where a woman who has converted to Islam marries a Muslim man without undergoing the aforementioned judicial process or completing Iddat , her second marriage shall be considered invalid even if children have been born from the second union. However, if, instead of approaching the court, she invites her non-Muslim husband to accept Islam in the presence of reliable witnesses and he declines, that act may, in appropriate circumstances, be treated as substantially fulfilling the same purpose as a judicial decree.

6. Mr. Kashif Alexander, Advocate, submitted that the dissolution of marriage after conversion to Islam engages both Christian and civil law perspectives. In Christian Law, particularly Canon Law, marriage is considered sacramental and indissoluble, and conversion alone does not invalidate the union. Protestant Christianity also regards marriage as permanent and requires recognized grounds, such as adultery or abandonment, for divorce. He submitted that, under Christian personal law, the non-converting spouse must seek divorce under the Divorce Act if they do not wish to continue the marriage. In civil jurisdictions, especially those with Islamic influences, he contended that conversion, particularly when not accepted by the other spouse, may furnish a ground for dissolution.

Analysis and findings

7. In Catholic and Eastern Orthodox traditions, marriage is considered a sacrament a sacred and lifelong covenant reflecting the union between Christ and the Church. Because of this, marriage is not merely a legal or social contract, but a spiritual act with profound theological significance. Conversion to another religion, such as Islam, does not automatically dissolve this bond. Any dissolution must be sought through formal ecclesiastical or civil procedures based on specific grounds such as adultery, cruelty, or desertion. In these traditions, particularly under Canon Law, marriage is regarded as indissoluble unless specific canonical grounds for annulment or separation are established. The emphasis remains on preserving the marital union wherever possible, and conversion alone is not considered sufficient cause for termination.

8. Protestant Christianity generally does not regard marriage as a sacrament, but still considers it a sacred and enduring institution ordained by God. Divorce is discouraged and typically permitted only on recognized grounds such as abandonment or adultery. Many Protestant denominations encourage reconciliation and pastoral counselling before any formal steps are taken, and doctrinal positions may vary across denominations. Views on interfaith marriage also differ. Evangelical and conservative Protestant traditions generally discourage marriage to non-Christians, citing Verses such as 2 Corinthians 6:14, which warns against being unequally yoked. These groups emphasize the importance of spiritual unity for a strong and lasting marriage. The Catholic Church allows such marriages under specific conditions, including a promise by the Christian spouse to continue practising their faith and to raise any children as Christians, but only with special permission from church authorities. The Eastern Orthodox Church typically prohibits marriages with non-Christians unless the non-Christian converts. In contrast, many mainline Protestant churches such as Anglican, Methodist, and Lutheran are more open to interfaith marriages, although they often provide guidance and highlight potential challenges. Where Christian personal laws apply, if one spouse converts to Islam and the other does not wish to continue the marriage, the latter must seek a divorce. While conversion does not terminate the marriage by operation of law, it may render the union practically unworkable. In practice, many Christians, especially in more secular or diverse societies, do not strictly follow church teachings in such matters and often make decisions based on personal feelings and other considerations.

9. In Islam, marriage is not only a social contract but also a religious covenant fulfilling both spiritual and worldly purposes. It is a sacred bond that fosters companionship, mutual support, and the fulfilment of natural desires while adhering to the principles of the faith. The Quran and the teachings of Prophet Muhammad (peace be upon him) guide Muslims in choosing partners and virtuous conduct in marital relationships. The Quran states in Surah Al-Baqarah (2:221):

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.

10. As regards the marriage of a Muslim with a woman whose religion is based on a Revealed Book, the Holy Quran provides in Surah Al-Ma idah (5:5) as follows:

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.

11. Paragraph 259 of D.F. Mulla s Principles of Mahomedan Law states that a Muslim male may contract a valid marriage not only with a Muslim woman but also with a Kitabia , that is, a Jewess or a Christian, but not with an idolatress or a fire-worshipper. A marriage, however, with an idolatress or a fire-worshipper is not void but merely irregular. On the other hand, a Muslim woman cannot contract a valid marriage except with a Muslim. She cannot contract a valid marriage even with a Kitabi , that is, a Christian or a Jew. A marriage, however, with a non-Muslim, whether he is a Kitabi or a non- Kitabi , is irregular, not void. 1 Most scholars disagree with Mulla and regard a marriage between a Muslim male and a non- Kitabia and between a Muslim female and a non-Muslim, whether Kitabi or not, as void. In Sardar Masih v. Haider Masih and others (PLD 1988 FSC 78) , the Federal Shariat Court (FSC) stated:

12. The FSC cited the following Verses of the Holy Quran in support of its aforementioned conclusion:

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 not back to the unbelievers. They are not lawful (wives) for the unbelievers, nor are the (unbelievers) lawful (husbands) for them. Surah Al-Mumtahinah (60:10)

And never will Allah grant to the unbelievers a way (to triumph) over the believers. Surah An-Nisa (4:141)

13. There is a consensus among 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. 2 However, they differ on the procedure to be followed in such cases. 3 Syed Ameer Ali posits that when the adoption of Islam takes place in a country where the Islamic Law is not in force, the dissolution of a marriage is suspended until the wife has completed three of her terms irrespective of cohabitation, and on the completion of three terms the marriage stands dissolved, and the woman may lawfully remarry. Conversely, if the conversion occurs in a country subject to Islamic Law, the faith will be offered for acceptance to the husband, and upon his refusal, the judge will issue a decree of separation or cancellation of the marriage. 4 Classical jurists, such as Al-Kasani in Badai al-Sanai and Dr. Wahbah al-Zuhayli in Al-Fiqh al-Islami wa Adillatuhu , have articulated the same view. 5

14. In Sardar Masih , the FSC held that if a non-Muslim wife converts to Islam and her non-Muslim husband does not within the Iddat period despite his knowledge that his wife had become Muslim, the marriage would ipso facto stand dissolved. However, if the Christian husband embraces Islam within the period of Iddat , the previous marriage would remain intact. The relevant excerpt is reproduced below:

15. The Shariat Appellate Bench of the Supreme Court of Pakistan expressed similar views in Mst. Naziran alias Khalida Parveen v. The State (PLD 1988 SC 713) . It observed that in an Islamic country like Pakistan, if a non-Muslim woman embraces Islam, the proper course is for her to file a suit for dissolution of marriage. The court should then offer her non-Muslim husband the option to accept Islam. If he accepts, the marriage continues; if he declines, the marriage should be anulled. The relevant excerpt from the judgment (pages 718-19) is reproduced below:

16. In Mst. Naziran s case, the Shariat Appellate Bench held that although the preferred course under Shariah is for the woman to approach the court so that Islam may be offered to her non-Muslim husband, Pakistan s existing legal framework does not prescribe this procedure with such clarity as to render it obligatory. The relevant excerpt is reproduced below:

The Shariat Appellate Bench further observed:

A man and a woman are said to commit zina if they wilfully have sexual intercourse without being validly married to each other. 6

17. Mufti Dr. Khaleeq-ur-Rehman, one of the amici curiae , opined that if a woman who has embraced Islam privately invites her non-Muslim husband to accept the faith in the presence of reliable witnesses, and he declines, that act may, in appropriate circumstances, be treated as substantially fulfilling the religious intent of formal judicial proceedings. While this view is consistent with certain classical juristic approaches, it must be read subject to the dictum of the Shariat Appellate Bench in Mst. Naziran, wherein the Court held that if the husband does not embrace Islam within the Iddat period, the marriage stands dissolved upon its expiry, even in the absence of any judicial invitation or formal declaration.

18. In Mst. Safia Bibi v. Muhammad Arif, ASI and others (1997 MLD 158) , after a thorough analysis of the writings of the Muslim jurists and the legal precedents, this Court drew the following conclusions:

(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 the expiry of the Iddat period, in which case the marriage would stand dissolved.

(c) Iddat is compulsory after the dissolution of the marriage of any character. The Iddat is imposed in order to provide an 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 an earlier husband 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 .

19. However, in paragraph 19 of the judgment in Safia Bibi , the learned Judge stated that, as a matter of prudence and public policy, a married woman who embraces Islam should inform her husband of her conversion and invite him to accept the faith, as continued cohabitation is no longer permissible. If he declines, she may file a suit for dissolution of marriage before the competent court, which must summon the husband and formally notify him of her conversion. If he fails to embrace Islam within the Iddat period, the court would declare the marriage dissolved, and she would then be legally entitled to remarry a Muslim man. This process, the Court emphasized, is essential to prevent exploitation of religion as a means to evade familial obligations under the guise of conversion. 7

The case in hand

20. Under the Divorce Act, a Christian marriage can be dissolved only through a decree of the court on one or more of the grounds specified in the statute. A unilateral declaration of divorce by the husband has no legal effect. Likewise, the dismissal of the Petitioner s petition under sections 7 and 10 of the Divorce Act for non-deposit of the process fee did not affect the subsistence of the marriage. It merely brought those proceedings to an end without adjudication on the merits. It is noteworthy that the Divorce Act does not determine the effect of the conversion of one of the spouses professing the Christian faith. This aspect would, therefore, be governed by Islamic Law and relevant constitutional principles discussed herein.

21. The Petitioner states that she embraced Islam on 05.10.2024, but the record does not disclose whether and when she informed Respondent No.3 of her conversion. This fact is central to determining the commencement and expiry of the Iddat period. For the sake of argument, if intimation was given on 05.10.2024, her Iddat would expire on 03.01.2025. 8 9 However, she entered into marriage with Adnan Abdullah on 12.12.2024. Respondent No.3 contests this marriage, asserting that his own marital bond with the Petitioner remains intact. He also alleges that she continues to live with him as his wife. These are disputed questions of fact which cannot be determined in these proceedings under Article 199 of the Constitution, particularly in the absence of Adnan Abdullah, who is not a party to the case. Any determination of the validity of that marriage or potential criminal liability would require an appropriate adjudication before a competent forum after affording all concerned persons a fair opportunity of hearing.

22. The Respondent SHOs, in their para-wise comments to this petition, have assured this Court that the Petitioner would be dealt with in accordance with the law. In view of their assurance, this petition is disposed of . Nothing in this judgment shall preclude lawful proceedings, if warranted, under the law.

23. Before parting with this judgment, I may add a note. In Safia Bibi , the Court emphasized that the Constitution of Pakistan, in its Chapter on Principles of Policy, safeguards the institution of marriage and the family. Article 35 mandates that the State shall protect the marriage, the family, the mother, and the child, while Article 36 obligates it to safeguard the legitimate rights and interests of minorities. Building on this, the Court held that the constitutional mandate requires the Legislature to prescribe a clear procedure for the dissolution of marriage where a non-Muslim woman embraces Islam. It is unfortunate that, even after more than three decades, no such law has been enacted. This legal vacuum causes uncertainty, exposes the woman to potential criminal liability, and creates ambiguity for law enforcement agencies and subordinate courts. Although such disputes centre primarily on marital status, they may also give rise to collateral issues involving legitimacy, custody, and nasab of children. While those concerns do not arise in the present case, they may emerge in future proceedings where children are born of either the prior or subsequent marriage. The Legislature, in consultation with the Council of Islamic Ideology, should consider enacting a uniform statutory framework to regulate the dissolution of marriage upon conversion. Such a framework must strike a careful balance between religious integrity, the constitutional guarantee of religious freedom under Article 20, and the protection of family life under Article 35.

UN/N-9/L Order accordingly.

1 Kitab means a book, that is, a book of revealed religion. Kitabi means a male who believes in Christianity or Judaism. Kitabia is a female who believes in either of these religions.

2 Mst. Safia Bibi v. Muhammad Arif, ASI and others (1997 MLD 158).

3 ibid.

4 Syed Ameer Ali, Muhammadan Law (1965), Vol. II, p.346.

5 See Al-Kasani, Badai al-Sanai, Vol. 2, pp. 866 870; Wahbah al-Zuhayli, Al-Fiqh al-Islami wa Adillatuhu, Vol. 7.

6 The word validly in section 3 of the 1979 Ordinance has been omitted by the Protection of Women Act VI of 2006 w.e.f. 02.12.2006.

7 Also see: Laloo v. Senior Superintendent of Police, Mirpur Khas, Sindh and others (PLD 2023 Sindh 53) and Zia Fatima and another v. Station House Officer and others (2011 PCr.LJ 388).

8 In Allah Dad v. Mukhtar and another (1992 SCMR 1273), the Shariat Appellate Bench of the Supreme Court of Pakistan highlighted that according to Surah Al-Baqarah (2:228), the Iddat period prescribed by the Holy Quran is not strictly 90 days, but rather encompasses three menstrual cycles, which may not necessarily span 90 days. Hanafi jurists stipulate that the minimum duration of menstruation is three days, and the minimum duration of Tuhr (period of purity) is 15 days. Based on these principles, the minimum Iddat period could be 39 days, allowing for three menstrual cycles with two intervening periods of purity. Thus, a marriage conducted 39 days after the divorce may be deemed valid according to Shariah if the woman has completed three menstrual cycles during this time. The Holy Quran and the Sunnah of the Holy Prophet (peace be upon him) do not specify 90 days as the Iddat period, except for women who have ceased menstruation due to old age or who have not yet started menstruating due to their young age, whose Iddat is mentioned as three lunar months (See Quran 65:4).

9 The Iddat period would expire on 13.11.2024 if it is determined as 39 days.