Wahid V. Naleera
1972Present :Deheragoda, J.
ABDUL WAHID, Appellant, and SITHY NALEERA, RespondentS. C. 256/71—M. C. Kalmunai, No. Q. 918/D. 369
Muslim Marriage and Divorce Act—Sections 12-14, 46-4S, 64, 66, 67—Act No. 1 oj1965—Act No. .32 of 1969—Application for appointment of a Special Quazi—Inability to have it heard on account of failure of Legislature to provide for avalid appointing body—Resulting effect on an order of maintenance made bythe ordinary Quazi.
An ex parte order of maintenance entered by a Quazi against the appellant•was made absolute on 9th November 1967 under the Muslim Marriage andDivorce Act, although the appellant had applied for the appointment of aSpecial Quazi in terms of section 67 of that Act on the ground that a fair andimpartial trial was not possible before the Quazi. But an appointment of aSpecial Quazi could not have been validly made under section 67 until it wasamended on 9th December by Act No. 32 of 1969. The resulting position wasthat prior to the amending Act, the Legislature had provided a remedy withoutproviding the means of pursuing that remedy.
The present appeal was from an order of enforcement made by the Magistrateon 11th December 1970 under section 66 of the Muslim Marriage and DivorceAct upon an application made to him by the Quazi under section 64 for therecovery of sums due upon the order of maintenance of 9th November 1967.
Held, that, inasmuch as the appellant’s application for the appointment of a-Special Quazi was not heard through no fault of his own but because oftheifailureof the Legislature to provide the means of enforcement of a right which it hadgiven him, the order appealed from should be set aside in revision and that thecase should be sent back to the Quazi to enable the appellant to show cause whyan application for an enforcement order should not be made to the Magistrateunder section 64 of the Muslim Marriage and Divorce Act.
DEHERAGODA, J.:—Wahid v. Kaltera
Held further, that section 46 of the Muslim Marriage and Divorce Actpermits a Quazi to reserve for consideration of the Board of Quazis a question ofMuslim law only and not a question relating to the interpretation of the Act.
PEAL from an order of the Magistrate’s Court, Kalmunai.
M. S. M. Nazeem, for the defendant-appellant.
A. R. Munsoor, for the applicant-respondent.
Cur. adv. vult.
-July 5, 1972. Deheragoda, J.—
This is an appeal from an order made by the learned Magistrate ofKalmunai under section 66 of the Muslim Marriage and Divorce Act(Cap. 115) for the issue of a warrant directing the appellant to pay a sumof Rs. 3,000 as a fine and in default to undergo six months’ simpleimprisonment for failure to comply with the order of the Quazi to paymaintenance said to he due to the respondent and her children.
The history of this case as gathered from the petition of appeal is asfollows:—On 21.7.67 the appellant applied for the appointment of aspecial Quazi in terms of section 67 of the Act on the ground thata fair and impartial trial was not possible before the learned Quazi,Duirtbara, on account of—
(а)the close relationship of the Quazi, Dumbara, and the respondent,
(б)the learned Quazi taking more than a personal interest in the case,
. ic) the likelihood of a real bias.
On 5.8.67 this application had been taken up ex parte by the Quazi andorder nisi had been made against the appellant. On 24.8.67 the Quazihad been informed that an application had already been made to theJudicial Service Commission for the appointment of a special Quaziunder section 67 of the Act to hear the appellant’s case. The appellanthad requested the Quazi to stay further action in view of this application.On 20,9.67 the Judicial Service Commission had informed the appellantthat it was beyond their powers to make such an appointment, apparentlyfor the reason that, as section 67 stood at that time, the power to actunder that section still remained in the District Registrar. Section 67 (1)of-the Muslim Marriage and Divorce Act-(Cap. 115) as it stood on20. 9. 67 ran as follows :—
•‘‘Where it appears to the District Registrar, on the application ofany party to or of any person interested in any proceedings institutedor to be instituted under this Act before a Quazi, that a fair andimpartial inquiry cannot be had before such Quazi, the DistrictRegistrar may order that proceedings be instituted before and heardby a special Quazi to be appointed for the purpose under section 14
DEHERAGODA, J.— Wahid v. Nale-era
and, in the event of any such order being made, any proceedingstaken in respect of the matter to which the application relates beforethe first-mentioned Quazi shall be of no effect.”
In the case of Jailabdeen v. Danina Umma1, in a judgment deliveredon 17th December 1962 (Vide 61 N.L.R. 419), H. N. G. Fernando J.,with L. B. de Silva J. agreeing, held that the office of a Quazi wasa judicial office, and the proper authority to make appointments to suchan office was the Judicial Service Commission as provided by section 55of the Constitution Order in Council, and not the Minister as providedby sections 12 (1) and 14 of the Muslim Marriage and Divorce Act.The Judgment accordingly held that an order for maintenance madeunder section 47 of the Muslim Marriage and Divorce Act by a personor persons who were appointed to such office by the Minister and not bythe Judicial Service Commission had no legal validity. In the case ofIsmail v. Muthu Marliya2, in a judgment delivered on 13th September1963 (Vide 65 N.L.R. 431), Herat J. held that a Magistrate’s Court hadno jurisdiction to hear under the Maintenance Ordinance a claim formaintenance which, by virtue of the provisions of section 48 of theMuslim Marriage and Divorce Act, fell under the exclusive jurisdictionof a validly appointed Quazi.
It is not claimed that an application has been made to the DistrictRegistrar under section 67 (1), but even if such an application had beenmade there would have been considerable doubt in the light of the abovedecisions whether the function conferred on the District Registrar bythat section of deciding whether a fair and impartial inquiry cannot behad before the Quazi was ultra vires the Constitution. If, therefore, anapplication had been made to the District Registrar, it is not likely tohave met with success.
The resulting position was that the special Quazi to be appointed forthe purposes of section 67 of the Act could not be appointed by theMinister under section 14 or by the District Registrar under section 67.By Act No. 1 of 1965, which received assent on 7th July 1965, the powerof appointment of Quazis under sections 12, 13 and 14 was conferred onthe Judicial Service Commission bringing the law into line with theearlier judicial decisions. But unfortunately section 67 of the Act remainedunamended until Act No. 32 of 1969 which received assent only on the9th of December 1969. In 1967 therefore neither the Judicial ServiceCommission nor the District Registrar could have made an order undersection 67. The Legislature had provided a remedy without providingthe means of pursuing that remedy. In this situation the Quazi fixedthe matter for inquiry on the ground that no steps had been taken bythe appellant to have the case heard before a special Quazi. On 9.11.67the appellant through his counsel showed cause why order absoluteshould not be made and the Quazi, according to the appellant,“wrongfully, improperly and illegally” refused to record such cause
and made order absolute.
1 (1962) 64 N. L. R. 419.
(1963) 65 N. L. R 43
bBHBRAGODA, S.—Wahid v. italeen… . 213
Ride 4 of the rules in the Fourth Schedule to the Muslim Marriage' and Divorce Act applicable to maintenance proceedings relates to themaking of an order nisi conditioned to take effect in the event of therespondent not showing cause against it on a day specified for thatpurpose in the order. Rule 6 runs as follows :—
“ Where the respondent appears and shows cause to the satisfactionof the Quazi why the order nisi should not be made absolute, theQuazi shall set aside the order nisi and shall proceed with the inquiryas though no default had been made by the respondent in appearing incompliance with the notice issued under rule 2.”
Learned counsel for the appellant points to Rule 10 which says thatno appeal shall lie against any order absolute made by a Quazi inpursuance of the rules in this Schedule. Provision is however made inthat rule for the Quazi to set aside the order absolute and proceed withthe inquiry as though there had been no default in appearance onlyin a case where the respondent was unable to appear due to illness,accident, misfortune or other unavoidable cause or by not havingreceived notice of the proceedings. None of these considerations willapply to the case of the appellant.
When the appellant appealed to the Board of Quazis against the orderabsolute, the Board, in my view, quute rightly dismissed the appeal onthe ground that there was no right of appeal from an order absolute.On 27.11.67 the respondent had filed a Fasah Divorce Case No. 393 intfye Quazi Court of Dumbara. In the meantime the Quazi had appliedto 'the Magistrate at Kalmunai for the enforcement of the order undersection 64 of the Act. The appellant thereupon informed the Magistrateof his desire to re-open proceedings as provided for in the proviso tosection 66 of the Act, on the ground that the order of the Quazi had. been made ex parte. Thereafter the appellant made an application tothe Quazi, Dumbara, to re-open proceedings. The Quazi had sought theadvice of the Board of Quazis on the question of re-opening proceedings,and the President of the Board of Quazis had ruled that “ since theBoard has rejected the appeal for the reasons stated therein section 66of the Act would not apply at this stage.” Accordingly on 15.8.70 theQuazi refused to re-open proceedings and the appellant appealed to theBoard of Quazis Rom this order; On 26.11.70 the Board of Quazis hadrejected the appeal without a hearing and stated as follows :—
“ As the petition relates to case No. 369 Dumbara, where the Boardhas made an order on 5.4.70 rejecting the petition of appeal, the Boardcannot at this stage entertain the petition of appeal from an order ofthe Quazi refusing to. re-open the proceedings which, in our opinion isan attempt to nullify the order made on 5.4.70.”
On 4.12.70 the appellant appealed to this Court against the order ofthe Board of Quazis dated 26.11.70. These are the circumstances inwhich the enforcement order of 11.12.70 of the learned Magistrate hasbeen made and against which this appeal has been taken.
DEHERAGODA, J.—Wahid v. Naleera
Learned counsel for the appellant argues that the application ofthe Quazi under section 64 dated 6.10.69 to the Magistrate’s Court canbe made only after an inquiry under section 47. He contends that inany event the Quazi has to notice the appellant and hold an inquiryinto any objections he may wish to make before making an applicationunder section 64, and cites in support the case of Thahir v. Shafi1 reportedin 72 N. L. R. 19.
In reply learned counsel for the respondent brings to my notice thatthe respondent’s application for maintenance was filed as far back as 1967and decided in her favour in 1969 and up to date she has not obtainedany relief. He states that the main complaint is that the Quazi hasdecided to hold the inquiry notwithstanding an application that itshould be heard by a special Quazi. He also argues that the Quazi isentitled to consult the Board of Quazis on any question of law in termsof section 46 of the Act. I do not agree that that section confers poweron a Quazi to reserve any question of law relating to the interpretationof the Act for consideration by the Board of Quazis. That section onlyenables a Quazi to obtain the advice of the Board of Quazis on anyquestion of Muslim Law which arises in any proceedings before him.
This seems to be a case in which the appellant has done everythinghe could to obtain relief under section 67 of the Act to which he is entitledfor the purpose of obtaining a fair and impartial inquiry, but withoutsuccess, not due to any fault of his own but due to the failure of theLegislature to provide the means of enforcement of a right which it hadgiven him.
There is some doubt as to whether the appellant has a right of appeal,but it is my view that, having regard to the penal consequences of theenforcement order, it is in the interest of justice that I should exercisethe powers of revision vested in this Court and set aside the order 'of thelearned Magistrate dated 11.12.1970 and the application of the Quaziunder section 64 of the Act dated 6.10.1969.
I accordingly set aside that order and that application upon whichthat order is based and direct that the case be sent back to the Quazito enable the appellant to show cause why an application for an enforce-ment order should not be made to the Magistrate under section 64 ofthe Act.
The parties should bear their own costs of this appeal.
Case sent back for further proceedings.1 (196S) 72 A". L. If. 10.
ABDUL WAHID, Appellant, and SITHY NALEERA, Respondent