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AmIn Beg Vs. Musammat Saman - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.342
AppellantAmIn Beg
RespondentMusammat Saman
Excerpt:
muhammadan law - apostasy--conversion of wife to christianity--dissolution of marriage--suit for restitution of conjugal rights not maintainable. - - amir ali in the third edition of his work at page 432. the learned author directs attention to the divergence of opinion as to the effect of the wife's abjuration of islam on the status of marriage and points out that the lawyers of bokhara have always taken a narrow view of the law but that the law of the jurists of balkh and samarkand laid down that 'when a woman abjures islam for a scriptural or revealed religion like judism or christianity, her renunciation of the faith does not dissolve the marriage......which was based on a passage to be found in the third edition of mr. amir ali's work on muhammadan law. mr. ishaq khan admits that there is no authority to be found in support of his contention outside the writings of the jurists of balkh, samarkand and this apparently is so. in the second edition of mr. amir ali's work, it is definitely stated that 'under the muhammadan law, if moslem husband or a moslem wife apostatise from islam, the apostasy has the effect of dissolving the marriage tie between the parties.' baillei in his digest of muhammadan law at page 182 also states that 'apostasy from islam by one of a married pair, is a cancellation of their marriage.' in hamilton's translation of the hidaya at page 66 is the passage: 'if either husband or wife apostatise.....
Judgment:

1. This appeal arises out of a suit for restitution of conjugal rights. The plaintiff and the defendant both being Muhammadans were married a number of years ago. The defendant Musammat Saman has apostatised from Islam and become a Christian, and has since left the protection of her husband. He now sues for restitution of conjugal rights and the defence is that by the fact of her apostasy the marriage tie became dissolved and a decree cannot be passed for restitution of such rights. Both the lower Courts have held that the suit cannot be maintained in view of the authorities upon the subject.

2. We have heard the argument of the learned counsel for the plaintiff-appellant, which was based on a passage to be found in the third edition of Mr. Amir Ali's work on Muhammadan Law. Mr. Ishaq Khan admits that there is no authority to be found in support of his contention outside the writings of the Jurists of Balkh, Samarkand and this apparently is so. In the second edition of Mr. Amir Ali's work, it is definitely stated that 'under the Muhammadan law, if Moslem husband or a Moslem wife apostatise from Islam, the apostasy has the effect of dissolving the marriage tie between the parties.' Baillei in his Digest of Muhammadan Law at page 182 also states that 'Apostasy from Islam by one of a married pair, is a cancellation of their marriage.' In Hamilton's translation of the Hidaya at page 66 is the passage: 'If either husband or wife apostatise from the faith, a separation takes place without divorce according to Haneefa and Aboo Yoosuf'. Sir Roland Wilson in his work on Anglo-Muhammadan Law at page 156 writes as follows: It seems that the effect of either or both of the parties to a Muhammadan marriage renouncing the Muhammadan religion is to dissolve the marriage in so facto so far as the British Courts are concerned, leaving it open to the parties to solemnise a fresh marriage under the Christian Marriage Act, XV of 1872, or under Act 111 of 1872, according to circumstances.' In the case of Zubirdust Khan v. His Wife 2 N.W.P.H.C.A. 370, Turner Offg. C.J., and Turnbull J., expressed the opinion that the effect of the apostasy of a Muhammadan wife was to dissolve the marriage contract and that according to the Muhammadan Law if either party to marriage becomes a convert to Christianity, a claim for restitution of conjugal rights cannot be supported. In addition to these authorities, we have the ruling in the case of Imam Din v. Hasan Bibi 184 P.L.R. 1906 : 85 P.R.1906. In that case it was also held that according to the Muhammadan Law, a wife's conversion from Islam to Christianity effects a complete dissolution of her marriage with her Muhammadan husband. There is thus a great mass of authority in support of the view taken by the Courts below. The only ground, as we have said, upon which the learned counsel for the appellant supports his argument is the statement of Mr. Amir Ali in the third edition of his work at page 432. The learned author directs attention to the divergence of opinion as to the effect of the wife's abjuration of Islam on the status of marriage and points out that the lawyers of Bokhara have always taken a narrow view of the law but that the law of the jurists of Balkh and Samarkand laid down that 'when a woman abjures Islam for a scriptural or revealed religion like Judism or Christianity, her renunciation of the faith does not dissolve the marriage.' Then the learned author refers to the arguments in support of their contention and to the decision which we have just cited from the Punjab Chief Court Re cord and submits that 'the British Indian Courts are by their constitution bound to follow the more reasonable enunciations of the jurists of Balkh and Samarkand.' We find ourselves unable to disregard the authorities in support of the view taken by the Court below and depart from the course of decisions hitherto prevailing. However weighty be the view expressed by Mr. Amir Ali, we do not think that we should be justified in doing so. We, therefore, dismiss the appeal with costs.


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