The Muslim law of the Sunni sect as to marriage between a and a non-Muslim has been summarised in Mulla's
Principles of Mahomedan Law, thus:
1. A Mahomedan male may contract a valid marriage not only with a Mahomedan woman, but also with a Kitabia, that is, Jewess or a Christian, but not with an idolatress or a fire-worshipper. A marriage, however, with an idolatress or a fireworshipper, is not void, but merely irregular.
2. A Mahomedan woman cannot contract a valid marriage except with a Mahomedan. She cannot contract a valid marriage even with a Kitabia, that is, a Christian or a Jew. A marriage, however, with a non-Muslim, whether he is Kitabi, that is a Christian or a Jew, or a non-Kitabi, that is an idolator or a fire-worshipper, is irregular, not void.
The Shia Law, however, does not recognise the distinction Between irregular and void marriages. According to that law, a marriage is either valid or void and marriages that are irregular under the Sunni Law are void under the Shia Law.
But even under the Sunni Law, an irregular marriage, even though not void, has various evil consequences. Such marriages are terminable at will by either party, and do not create mutual rights of inheritance between the spouses.
Now, permitting a Muslim male to contract a valid marriage with a Kitabia female while rendering a marriage between a Muslim female and Kitabia male irregular is patently discriminatory against a Muslim female on the ground of sex alone.
According to Sir Abdur Rahim, this distinction is drawn between the case of a Muslim man and Muslim woman, because if a Muslim woman were allowed to marry a Christian or a Jew, there would be likelihood of her being converted to the faith of her husband, while there could be little apprehension of a husband, adopting the faith of his Christian or Jewess wife.
But, however reasoned, if at all, the distinction might otherwise be, the resulting discrimination would not cease to be on the ground of sex alone to attract the injunction of Art. 15 of the Constitution.
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