¹ Law Commission (No. 42) Family Law: Report on Polygamous Marriage (printed 2 February 1971). The Matrimonial Proceedings (Polygamous Marriages) Bill received its second reading in the House of Commons on 21 January 1972.

² H.L.Deb., Vol. 316, cols. 212–16 (11 March 1971).

³ On the validity of this statement, see , Derrett, Religion Law and the State in India, London 1968.Google Scholar

⁴ Qureshi v. Qureshi [1971] 1 W.L.R. 518Google Scholar; [1971] C.L.J. 40.

⁵ Mohamed v. Knott [1969] 1 Q.B. 1Google Scholar; Kaur v. Singh [1972] 1 W.L.R. 105.Google Scholar

⁶ Singh v. Singh [1971] P. 226Google Scholar; [1971] C.L.J. 206.

⁷ The problem of deciding upon a suitable word to describe the personal law of the Muslims of India and Pakistan needs to be stressed. The term“Islamic law” is inappropriate because it impliesa complete acceptance of the Figh (jurisprudence) of Hanafi Islam. This has never been the case in India, and so one would wish to distinguish between the Islamic law (Shari'a) and the system of personal law peculiar to the Muslims of India and Pakistan.The use of terms such as Muhammedan law or Anglo-Muhammedan law have an objectionable tone. Stricty, the law of the Muslims is not the law of Mohammed but the law of God as expressed through his Prophet, Mohammed. For these reasons the title Muslim law is adopted in this article. See Derrett, op. cit., p. 513; Fyzee, Cases on the Muhammedan law of India and Pakistan, Oxford 1965, p. xxi. Both Fyzee and Derrett prefer the title Muhammedan (or Muhammadan) law.

⁸ Shariat Act 1937. Act XXVI of 1937, s. 2. “Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract of gift or any other provisions of personal law, marriage, dissolution of marriage, including talag, lia, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim personal law,” as extended in Pakistan by the W. Punjab Muslim Personal Law (Shariat) Application Act 1948 and the Amendment to this Act of 1951.

⁹ Polygyny refers to the plurality of wives; polyandry refers to the plurality of husbands. Althrough polygamy, a generic expression coversing both institutions, is used in this article, only polygyny is permissible by Muslim law.

¹⁰ Under which, a woman married under Muslim law is entitled to obtain a judicial dissolution of her marriage on any one of a number of grounds, including the disappearance of the husband, his failure to maintain her for two years, his failure to perform marital obligations for three years, importence, insanity, and cruelty. S. 2 (ix) provides the wife with the right to apply to the court for the dissolution of her marriage “on any other ground which is recognised as valid for the dissolution of marriages under Muslim law,”

¹¹ Ordinance No. VIII (1961). Republished in , Fyzee, Outlines of Muhammadan Law, Oxford 1964 at p. 471.Google Scholar See , Coulson, “Islamic Family Law: Progress in Pakistan” in Changing Law in Developing Countries, , Anderson ed., London 1963 at p. 248Google Scholar; , Pearl, “Family Law in Pakistan” (1969) 9 Journal of Family Law 165.Google Scholar

¹² s. 6 (3). The Arbitratiuon Council is made up of the Chairman of the Union Council—the local administrative districts—plus representatives both of the husband and the existing wife.

¹³ [1964] 108 S.J. 337.

¹⁴ [1971] 1 W.L.R. 518.

¹⁵ In Qureshi v. Qureshi, Lord Simon considered various problems relating to the defects in the procedure of the Arbitration Council. R. 5 (4) of the West Pakistan Rules provides that where a vacancy occurs otherwise than through a failure to make a nomination the Chairman shall require a fresh nomination.R. 6 (1) lays down that the Chairman shall by order in writing call upon each of the parties to nominate his or her representatives within seven days of receiving a notice of talag. Lord Simon held these rules to be directory and not imperative, thus failure to comply with the rules did not vitiate the proceedings.

¹⁶ 1967 P.L.D. Supreme Court 97. See Hinchcliffe, “Divorce in Pakistan: Judicial Reform” (1968) 2 Journal of Islamic and Comparative Law 13 (Ahmadu Bello University, Zaria, Nigeria). See also Siddiq v. Sharfan [1968] P.L.D.Lah. 411.Google Scholar

¹⁷ [1964] P. 354.

¹⁸ Cheshire and North at p. 420. Dicey and Morris, r. 47 at p. 379, althrough at p. 177 of his later book, The Conflict of Laws, London 1971, Dr. Morris says correctly that the court has jurisdiction to make a declaration if, at the commencement of the proceedings, both parties are resident in England. Qureshi v. Qureshi [1971] 1 W.L.R. 515Google Scholar is cited as authority.

¹⁹ [1971] 1 W.L.R. 515.

²⁰ [1964] P. 356.

²¹ Willmer L.J. at pp. 383–85; Danckwerts L.J. at p. 385; Diplock L.J. at p. 397. See Har-Shefi v. Har-Shefi [1953] P. 161Google Scholar at p. 174.

²² S. 40 (1). Without prejudice to any jurisdiction exercisable by the court apart from this section, the court shall have jurisdiction to entertain proceedings by a wife, notwithstanding that the husband is not domiciled in England—

(a) in the case of any proceedings under this Act (other than proceedings under s. 14 or ss. 23 to 28) if —

(i) the wife has been deserted by her husband, or

(ii) the husband has been deported from the United Kingdom under any law for the time being in force relating to deportation, and the husband was immediately before the desertion or deportation domiciled in England;

(b) in the case of proceedings for divorce or nullity of marriage, if —

(i) the wife is resident in England and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings, and

(ii) the husband is not domiciled in any other part of the United Kingdom or in the Channel Islands or the Isle of Man.

²³ The right to petition for restitution of conjugal rights was abolished by s. 20 of the Matrimonial Proceedings and Property Act 1970.

²⁴ [1964] P. 356 at p. 397.

²⁵ [1964] P. 356 at p. 397.

²⁶ [1964] P. 356 at p. 397.

²⁷ See Morris in Conflict of Laws, p. 379. In Abate v. Abate [1961] P. 29Google Scholar jurisdiction must have been assumed on the basis of the celebration of the marriage in England. The following submission of counsel for the husband went unchallenged: “It is considered that the husband's residence in England is merely temporary. The fact that the marriage took place in England confers jurisdiction to grant the declaration sought,” at p. 31. Residence of the respondent alone, as a matter of fact, should be sufficient to confer jurisdiction. By commencing the action in an English court, the petitioner must necessarily submit to its jurisdiction. In Malik v. Malik, unreported, 25 November 1965Google Scholar, jurisdiction was taken apparently on the grounds that the petitioner was resident in England in a case where the respondent was domiciled in Pakistan and the petitioner (before her marriage) was domiciled in Iran. See also Nazar Husain v. Calam Janath (or Husain), unreported, 18 February 1963.Google Scholar See Law Commission Working Paper No. 38: Jurisdiction in Suits for Nullity of Marriage, p. 10.

²⁸ Lee v. Lau [1967] P. 14Google Scholar; Law Commission (No. 42), Family Law: Report on Polygamous Marriages, pp. 9, 21.

²⁹ Dicey and Morris, r. 38 (1).

³⁰ [1968] P. 564.

³¹ See Qureshi v.Qureshi [1971] 1 W.L.R. 518Google Scholar and the note of the present writer on that case in [1971] C.L.J. 40 at p. 41.

³² The view favoured by Sir Neil Lawson is to limit the recommendation to de facto monogamous marriages. He believes that the majority recommendation “not only represents a departure from the basic principles of English law concerning the marriage relationship, in its many aspects, but its adoption would face the courts with problems which they are not designed or equipped to deal.” Law Commission (No. 42), Family Law: Report on Polygamous Marriages, p. 46. The Matrimonial Proceedings (Polygamous Marriages) Bill adopts the view of the majority.

³³ Law Commission (No. 42), Family Law: Report on Polygamous Marriages.

³⁴ s. 1 (2), Matrimonial Proceedings (Magistrates' Courts) Act 1960.

³⁵ Sowa v. Sowa [1961] P. 70.Google Scholar Presumably it also covers proceedings under s. 6 of the Matrimonial Proceedings and Property Act 1970. It is submitted, however, that applications for custody and maintenance of children under the Guardianship of Minors Act 1971 are not covered by the rule in Hyde v. Hyde.

³⁶ Law Commission (No. 42), Family Law: Report on Polygamous Marriages, p. 29. See Imam Din v.N.A.B. [1967] 2 Q.B. 213.Google Scholar

³⁷ Law Commission (No. 42), Family Law: Report on Polygamous Marriages, p. 47.

³⁸ Either directly or through her marriage guardian. In theory, though hardly in practice, either party has capacity to make the initial offer.

³⁹ Shahzada Begum v. Abdul Hamid [1950] P.L.D.Lah. 504.Google Scholar

⁴⁰ In Nasim Akhbar v.The State [1968] P.L.D.Lah. 841Google Scholar an alleged unregistered marriage was held not to exist. Registration is the best proof of the existence of a marriage, but this is far short of an irrebuttable presumption against the existence of a marriage in the absence of registration.

⁴¹ Witnesses are not required in Shi'i law.

⁴² Qureshi v. Qureshi [1971] 1 W.L.R. 518Google Scholar; Jatoi v. Jatoi [1967] P.L.D. Supreme Court 580.Google Scholar

⁴³ The proper law of the dower is Pakistan law, the personal law of the parties at the time of the marriage. In Pakistan, when a Fasid marriage, in this case a marriage without witnesses, is consummated, the dower becomes payable. An English court would give effect to this rule. Qureshi v. Qureshi [1971] 1 W.L.R. 518Google Scholar; Shahnaz v.Rizwan [1965] 1 Q.B. 390.Google Scholar

⁴⁴ [1966] 1 Q.B. 159.

⁴⁵ “Any person who knowingly and wilfully—(a) solemnizes a marriage … in any place other than—(i) a church or other building in which marriages may be solemnized … shall be guilty of felony….”

⁴⁶ [1966] 1 Q.B. 159 at p. 166.

⁴⁷ See also Law Commission Working Paper No.35: “Solemnisation of Marriage,” para. 120, 139.

⁴⁸ [1966] 1 Q.B. 159 at p. 168. See also at p. 169:“We repeat that this sort of marriage performed by a Mahommedan, at the request of the parties, and under Islamic law, cannot have been in the contemplation of the legislature when the Marriage Act 1949 was passed” approving Humphreys J. in R. v. Mohamed (Ali), a case decided at Birmingham Assizes in 1943 and reported as a note in [1964] 2 Q.B. 350. In R. v. Mohamed (Ali), Humphreys J. said “ … in order to offend against section 39 (the predecessor to s. 75) the solemnisation of matrimony must be at least the ceremony which prima facie will confer the status of husband and wife upon those two persons—at least prima facie—and I cannot think that there is any evidence upon which any jury could say that this ceremony, this religious ceremony, whatever it was called as performed on this occasion had that effect or was intended to have that effect….” R. v. Bham overrules R. v.Rahman [1949] 2 All E.R. 105Google Scholar, a case where R. v. Mohamed (Ali) was not cited to the court.

⁴⁹ [1963] W.A.R. 15 at pp. 28, 29; on appeal 108 C.L.R. 230.

⁵⁰ See Ruding v. Smith (1821) 2 Hag.Con.371: 161 E.R. 774; Catterall v. Catterall (1847) 1 Moo.Ecc. 580; 163 E.R. 1142; Toczanowska v. Toczanowski [1957] P. 301.

⁵¹ At p. 281.

⁵² See Law Commission Working Paper No. 35: “Solemnisation of Marriage,” where it is stated that it is the view of the Foreign and Commonwealth Office not to recognise marriages celebrated in a foreign Embassy or Consulate in England unless the Marriages Acts 1949 to 1970 were complied with. The Law Commission agree with this view: p. 3n.

⁵³ See Haque v. Haque [1963]Google Scholar W.A.R. 15; on appeal 108 C.L.R. 230; Hashmi v. Hashmi [1971] 3 W.L.R. 918.Google Scholar

⁵⁴ See below, footnote 73.

⁵⁵ [1967] P.L.D. 580 at p. 602.

⁵⁶ For a recent example, see Hashmi v. Hashmi [1971] 3 W.L.R. 918Google Scholar, where Mr. Commissioner Stabb Q.C. accepted the submission that a marriage celebrated in a register office in England between a Pakistan domiciliary and an English girl which was actually polygamous would be accepted by Pakistan as a valid marriage. The Commissioner, therefore, made a declaration that the children to this union were legitimate.

⁵⁷ [1879] 5 P.D. 94.

⁵⁸ Dicey and Morris, r. 31.

⁵⁹ A Muslim male, however, has capacity to marry, in addition to his co-religionists, Christian, Jewish and probably Zoroastrian girls (known collectively as people of the book).

⁶⁰ Cheni v. Cheni [1965] P. 85Google Scholar; Chetti v. Chetti [1909] P. 67.Google Scholar

⁶¹ Dicey and Morris, p. 271.

⁶² [1965] 1 Q.B. 390.

⁶³ At p. 399. Because of the rule in Hyde v. Hyde.

⁶⁴ At p. 400. The judge, no doubt, was referring to the observations of Parker, Lord in Hamira Bibi v. Zubaida Bibi [1916] L.R. 43 I.A. 294 at pp. 300, 301.Google Scholar

⁶⁵ In Qureshi v. Qureshi [1971] 1 W.L.R. 518Google Scholar, the respondent submitted that the claim for dower, on the authority of Shahnaz v. Rizwan, was ex contractu, and it was not open to the Divorce Court to determine the matter. Without deciding on the point relating to Shahnaz v. Rizwan, Lord Simon held that as the respondent had conceded that assuming the marriage had been validly dissolved by talaq the sum claimed by way of dower was payable to the petitioner on demand, it was immaterial whether the claim arose ex contractu or as an incident of status. The Divorce Court had jurisdiction to give judgment in the matter.

⁶⁶ See Phrantzes v. Argenti [1960] 2 Q.B. 19Google Scholar, where Lord Parker C.J. held that a father's obligation to constitute a dowry under Greek law and the reciprocal right of a daughter to have a dowry constituted, were of a nature which the English courts would recognise. The court refused to exercise the jurisdiction, however, because the decision involved a large measure of discretion as to matters which were essentially matters for the Greek court.

⁶⁷ “The High Court and the Court of Appeal respectively, in the exercise of the jurisdiction vested in them by this Act, shall, in every cause or matter pending before the court, grant, either absolutely or on such terms and conditions as the court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim brought forward by them in the cause or matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of these matters avoided.”

⁶⁸ [1965] 1 Q.B. 390 at p. 400. According to this suggestion, the English courts would assume jurisdiction to assess the proper dower where a marriage was celebrated in England (as in Qureshi v. Qureshi) but would not assume jurisdiction where the marriage was celebrated elsewhere.

⁶⁹ It is felt that the hesitation of Lord, Parker C.J. in Phrantzes v. Argenti [1960] 2 Q.B. 19Google Scholar was unjustified. English courts are constantly faced with assessing financial provisions, and the complexity involved, in particular in relation to lump sum awards, is neither no more nor no less great.

⁷⁰ Jatoi v. Jatoi [1967]Google Scholar P.L.D. Supreme Court 580; another case where the marriage was celebrated in England in civil form. There was no religious ceremony in Jatoi, nevertheless, the Supreme Court in Pakistan held the wife entitled to a dower.

⁷¹ See Qureshi v. Qureshi [1971] 1 W.L.R. 518Google Scholar; Moosavi v. Moosavi, 22 June 1964Google Scholar, unreported; Nazar Husain v. Galam Janath (or Husain), 19 February 1963Google Scholar, unreported. The parties in Moosavi v. Moosavi were married in a register office in Wales. The husband, a Muslim, was domiciled outside England. In an uncontested case on Assize at Cardiff, the talaq pronounced in the U.K. was held to have validly dissolved the marriage. In Nazar Husain v. Galam Janath (or Husain), the husband said that he was domiciled in Kashmir. His wife was living in Kashmir, and he was resident in London. He pronounced a talaq in a solicitor's office in London and sent a copy of the pronouncement to his wife. In proceedings brought under Order 16, r. 15, the court accepted the validity of the divorce. An earlier case which seems to have been wrongly decided is Soegito v. Soegito reported briefly in [1961] 105 S.J. 725.Google Scholar

⁷² S. 3 (1) (b), Recognition of Divorces and Legal Separations Act 1971. This section, however, seems to refer solely to judicial divorce.

⁷³ [1967] P.L.D. Supreme Court 580; for a discussion of this problem, see the present writer's articles “Internal Conflict of Laws in Pakistan” (1969) 11 J.I.L.I. 362Google Scholar, and “Within the Limits prescribed by Allah” (1970) 3 South Asian Review 313 at p. 320.Google Scholar

⁷⁴ Maintenance Orders (Facilities for Enforcement) Act 1920; Maintenance Orders Enforcement Act 1921 in force in Pakistan.

⁷⁵ Because of the decision in Jatoi v. Jatoi [1967]Google Scholar P.L.D. Supreme Court 580.

⁷⁶ John Jiban Chandra Datta v. Abinash Chandra Sen, I.L.R. [1939] 2 Cal. 12.Google Scholar See also Farooq Leivers v. Adelaide Bridget Mary [1958]Google Scholar P.L.D.Lah. 451; Att.-Gen. of Ceylon v. Reid [1965]Google Scholar A.C. 720, N.C.R. (1963) Ceylon 97; Ali Nawaz v. Mohd. Yusuf [1963]Google Scholar P.L.D. Supreme Court 51 and the dissenting opinion of Yaqub, Ali J. in Jatoi v. Jatoi [1967]Google Scholar P.L.D. Supreme Court 580.

⁷⁷ [1917] 1 K.B. 634.

⁷⁸ [1964] P. 315.

⁷⁹ This distinction is suggested by the present writer in [1971] C.L.J. 40. There is at least one decided case, however, where a talaq was recognised as validly dissolving a marriage celebrated in England between a Pakistan domiciled Muslim and a Christian girl. Barbara Ali v. Ali, 24 May 1968Google Scholar, unreported, before Mr. Commissioner Norman Richards. The husband in this case sent the talaq pronouncement to his wife in England from his home in Pakistan. In the debate in the House of Lords on the Recognition of Divorces and Legal Separations Act (H.L.Deb., Vol. 316), the Lord Chancellor expressed the opinion that the result in Qureshi v. Qureshi would have been precisely the same if the girl had been an “English” girl. Although the Lord Chancellor offered Lord Simon an opportunity to contradict him on this point, the statement went unchallenged.

⁸⁰ S. 3 (1): The validity of an overseas divorce or legal separation shall be recognised if, at the date of the institution of the proceedings in the country in which it was obtained—(a) either spouse was habitually resident in that country; or (b) either spouse was a national of that country. See also s. 2 (a)(b).

⁸¹ At p. 535.

⁸² Mehta v. Mehta [1945] 2 All E.R. 690.Google Scholar

⁸³ Re Bethell (1888) 38 Ch.D. 220.

⁸⁴ Att.-Gen. of Ceylon v. Reid [1965]Google Scholar A.C. 720; Hashmi v. Hashmi [1971] 3 W.L.R. 918.Google Scholar

⁸⁵ Lee v. Lau [1967] P. 14.Google Scholar

⁸⁶ I.L.R. [1939] 2 Cal. 12.

⁸⁷ Ibid., p. 17.

⁸⁸ [1958] P.L.D.Lah. 431.

⁸⁹ At p. 438. See also Emperor v. Anthony [1910]Google Scholar I.L.R. 33 Mad. 371.

⁹⁰ [1965] A.C. 720; [1963] N.C.R. (Ceylon) p. 97; Siraj, 7 Malaya L.R. 181; Weston, 28 M.L.R. 484; Koh, 29 M.L.R. 88; Webb, 14 I.C.L.Q. 992.

⁹¹ [1963] N.C.R. (Ceylon) 97.

⁹² S. 18 reads: “No marriage shall be valid where either of the parties thereto shall have contracted a prior marriage which shall not have been legally dissolved or declared void.”

⁹³ [1965] A.C. 720 at p 734.

⁹⁴ I.L.R. [1939] 2 Cal. 12 at p. 19.

⁹⁵ See also s. 15 of the Special Marriage Act 1872 of Pakistan: “Every person who, being at the time married, procures a marriage of himself to be solemnised under this Act, shall be deemed to have committed an offence under s. 494 or s. 495 of the Pakistan Penal Code as the case may be; and the marriage so solemnised is void.”

S. 16: “Every person married under this Act who, during the lifetime of his or her wife or husband, contracts any other marriage, shall be subject to the penalties provided in ss. 494 and 495 of the Pakistan Penal Code for the offence of marrying again during the lifetime of a husband or wife, whatever may be the religion which he or she professed at the time of such second marriage.”

S. 16 of the Pakistan Special Marriage Act 1872 differs from s. 44 of the Indian Special Marriage Act 1954 in one vital respect. A second marriage contrary to s. 16 may well be valid.

⁹⁶ Colour and Citizenship, Oxford, 1969.Google Scholar

⁹⁷ Excluding white Pakistanis.