² For a report of this case, see p. 58, post.

³ For ease of reference, the relevant sections are as follows:

“3. (1) The High Court shall have jurisdiction to hear and determine all matrimonial causes and suits arising out of the marriage of non-Christian spouses either of whom is an Asiatic, if at the time of the institution of any such cause or suit the petitioner is domiciled in the Territory:

Provided always that nothing in this sub-section shall confer or be construed as conferring upon the High Court jurisdiction to hear or determine any such cause or suit if recourse to a judicial tribunal is not permitted by the law of the religion of the parties to the marriage, where their religion is the same, or if they profess different religions, by the law of the religion in accordance with which the marriage was solemnized.

(2) Subject to the provisions of this Ordinance in all matrimonial causes or suits to which this section relates the High Court shall exercise its jurisdiction and act and give relief upon the principles of the law of the religion of the parties to the marriage, where their religion is the same, or if they profess different religions, by the law of the religion in accordance with which the marriage was solemnized:

Provided that where such law is repugnant to justice or morality or inaplicable in the circumstances of the Territory or inconsistent with any Order in Council or Ordinance or any regulation or rule made under an Order in Council or Ordinance such law shall be deemed to be varied accordingly.”

^{page 15 note 1} For ease of reference, the relevant passages are as follows:

“Subject to the other provisions of this Order, such civil and criminal jurisdiction shall, so far as circumstances admit, be exercised in conformity with the Civil Procedure, Criminal Procedure and Penal Codes of India and the other Indian Acts and other laws which are in force in the territory at the date of the commencement of this Order or may hereafter be applied or enacted, and subject there to and so far as the same shall not extend or apply shall be exercised in conformity with the substance of the common law, the doctrines of equity and the statutes of general application in force in England at the date of this Order … save in so far as … (they) may hereafter be modified, amended or replaced by other provisions in lieu thereof…: Provided always, that the said common law, doctrines of equity and statutes of general application shall be in force in the territory so far only as the circumstances of the territory and its inhabitants … permit, and subject to such qualifications as local circumstances may render necessary.”

^{page 15 note 2} For ease of reference, these sections provide that:

“2. The marriage in the Territory of non-Christian spouses either of whom is an Asiatic, whether domiciled in the Territory or not, who are not related to each other in any of the degrees of consanguinity or affinity prohibited by the law of the religion of either party to the marriage, shall, if the marriage is contracted in the manner customary in the Territory among persons professing the religion of either of the parties …, be deemed for all purposes to be a valid marriage.

“3. The dissolution in the Territory of the marriage of non-Christian spouses either of whom is an Asiatic, whether at the time of the divorce either party is domiciled in the Territory or not, shall, if the divorce is on grounds which are recognised as valid grounds for divorce by the law of their religion, if it be the same, or, if they profess different religions, by the law of the religion in accordance with which the marriage was solemnized and is effected in the manner customary in the Territory among persons professing that religion, be deemed for all purposes to be a valid divorce.”

^{page 16 note 1} For ease of reference, the relevant wording is as follows:

“2. The Marriage, Divorce, and Succession (non-Christian Asiatics) Ordinance (hereinafter referred to as the principal Ordinance), is hereby amended by substituting for sections 3 and 4 thereof” the provisions quoted in footnote 3 on page 14.

^{page 16 note 2} Although it is distinctly arguable that the Ordinance of 1923 had defined and restricted the previously general and undefined jurisdiction of the Court, and that the amendment of 1947, by substituting a new definition of the function of the Court in regard to such divorces, could scarcely be said to have restored the pre-1923 position. But this argument, however valid in itself, would lead to purely negative results.

^{page 17 note 1} In so far as this may be permissible under the rules governing the interpretating of such documents.

^{page 18 note 1} Order-in-Council, Article 17 (1).

^{page 19 note 1} Which enacts that:

“The Marriage Ordinance, and the Marriage of Africans Ordinance, shall cease to apply to the celebration of marriages between persons both of whom profess the Mohammedan religion, and neither of whom is a party to an existing marriage, under or declared valid by the said Ordinances, with any person other than a Mohammedan…”

^{page 20 note 1} Chap. IX, section 3.

^{page 20 note 2} Ibid., section 8 (h)

^{page 20 note 3} Ibid., section 5 (e)

^{page 20 note 4} Ibid., section 15.

^{page 21 note 1} In East Africa, for instance, there are representatives of the Ithna ‘Asharis, of the Isma’ilis of both the Nizari and Musta’li factions (and, in the case of the latter, a number of sub-divisions), and of the Zaydis.

^{page 21 note 2} A consent which the learned Acting Vice-President deemed to be of the essence of any contract of marriage under Islamic law.

^{page 22 note 1} Which would be presumed in the case of a girl of fifteen.