HYDERABAD: A single-judge bench of the Sindh High Court, Hyderabad circuit, comprising Justice Mohammad Iqbal Kalhoro has ruled that the marriage of a Hindu woman, Ms Nagina (who converted to Islam) with respondent Muslim man, Mazhar Hussain, during her iddat period was fasid (irregular) and not batil (void); and she shall enter into Nikah with him afresh, if she wishes so. However, the principles already laid down by Lahore High Court are reiterated (in the judgement), according to the verdict.

The bench had heard the matter on Sept 2 and pronounced its 14-page judgement on Friday. It accordingly disposed of the petition, filed by her former husband, Mr Laloo, for the restoration of his wife and four children to him.

According to the verdict, Mr Laloo had filed a criminal miscellaneous application before the court on March 17, seeking issuance of Rule Nisi for recovery of his [allegedly abducted] wife and children from the custody of Mazhar Hussain and his father Mohammad Bux Khan.

When the detainees were produced before the court, Mohammad Bux stated that his son, Mazhar Hussain, had married Ms Nagina after she had embraced Islam and adopted Ms Murk as her new name. The court noted that because of her silence during the hearing, it was assumed that she might be under some kind of duress, She was sent to Darul Aman and the minor children were handed over to their father.

She will have to enter into Nikah afresh if she wishes so, SHC rules

But when she appeared on subsequent dates of hearing, she denied the allegation of abduction, and disclosed that she had embraced Islam and married Mazhar Hussain of her free will. She said she was not happy with the applicant so she had left him and was unwilling to go back to him or previous life. The applicant, au contraire, pleaded for her restoration to him.

The court discussed the relevant LHC judgement in detail.

The facts of case before the court were that Ms Nagina had left Mr Laloo on Jan 15 and she, as per her own affidavit, embraced Islam and married Mazhar Hussain on Jan 17. There was no evidence to show that before leaving her house, she had informed Mr Laloo of her intention to convert and offered him to allow her if he wanted to continue as her husband and only on his refusal had left him.

She, when asked in court, did not seem to know contents of her affidavit except that it was a testament of her conversion to Islam. Neither had she, or the petitioner, any idea of any offer made by her to him to abjure his religion and accept Islam, nor did she allude to any such assertion by her in the hearings.

Ms Murk is Muslim, formerly she was Hindu and had produced four children out of her wedlock with the applicant. Before her conversion, she did not inform Mr Laloo of her intention and did not observe iddat before marrying Mazhar Hussain.

It is the same scheme, said Justice Kalhoro, which the LHC had finally declared in its order. However, for getting confirmation of dissolution of marriage it has laid down that the woman could apply to the family court where she resides, for dissolution of marriage on the ground of her conversion. The court must summon her husband, inform him that his wife has embraced Islam and offer him to do so. And if he does not accept the offer within the period of iddat, court shall declare marriage dissolved.

The woman would then be entitled to enter into second marriage with a Muslim. It held this procedure must be adopted to preclude possibility of exploitation of religion merely for the purpose of satisfying sexual desire without any regard for one’s family responsibilities.

Ms Murk in the court, affirmed facts in no unambiguous words and reiterated that her marriage with Mazhar was with her free will and choice and that she was not coerced into such union. Her being Muslim by her own choice is undisputed and thus an irreversible fact from the point of view of our religion.

The court said only irregularities which could be highlighted in second marriage was that she did it without observing iddat period on her conversion and her failure to offer Islam to the applicant. The latter, failure to offer Islam to her husband on her conversion, has become inconsequential in consequence of former, marrying without observing iddat period.

But such marriage, it must be borne in mind, was not considered as batil (void) but fasid (irregular) – a marriage which involves temporary impediments or prohibitions and could be rectified or cured to become valid by removing such prohibitions.

Therefore, notwithstanding consequences of her act, marrying without observing iddat period on her conversion, or failure to file a petition for this purpose in court and waiting for six months after final decision-amenable it might to 2018 Act that petitioner may pursue if he so wishes, such irregularity here can be cured by Ms Murk by entering into a fresh Nikah with Mazhar since the period of her iddat has already expired by now.

Circulation of verdict among judges across Sindh ordered for perusal and compliance

Justice Kalhoro wrote that copies of the judgement should be distributed through the registrar of the court among all sessions and district judges of this province as well as all civil/family judges working under them for perusal and compliance.

The registrar shall also ensure that a copy of this verdict is also sent to the Sindh Assembly secretary for placing it before the provincial cabinet for consideration and making necessary legislation/amendment providing a necessary explanation setting out a comprehensive procedure in, but not limited to, Section 11 (iii) of the Sindh Hindu Marriage (Amendment) Act 2018 (termination of marriage on a petition by either party in the wedlock who has ceased to be Hindu by conversion to another religion).

Published in Dawn, October 1st, 2022