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1912.Present : Lascelles C.J. and Grenier J.
UMMA v. MARIKAR386—D. C. Oalle, 10,703
Muhammadan law—Action by wife against husband for maggar—Separation of parties beforecohabitation—Wifeentitled. to half
Under the Muhammadan lawthe geheral ruleisthatthe wile
is entitledto halfthe dower ifthehusband andwife separate-
without consummating the marriage. To this- rule there is an-exception. The wife is not entitled to any dower, if the separation-'is due to vices redhibitoires onher part, that istosay,to certain-
mental orphysicaldefects whichareconsidered inMnbammadan.
law to be disqualifications for marriage.
The. plea that there was no evidence that non-consummation wasdue to any fault on the partof the husband washeldto be no
answer to the wife’s claim.
fjl HE facts are set out in the judgment.
A. St. V. Jayewardene, for the defendant-appellant.
Bawa, K.C., for the respondent.
The following authorities were cited at the argument: VenderBey’s Minhadi-at-Talilin 389 and 148; Amir Ali’s MuhammadanLaw, vol. II., p. 589; Hamilton’s Hedaya, vol. I., p. 127; Natchiav. Pitche; 1 Natchia v. Marikar;2 Vand. Bep. 1869-1871, 196,203:Digest of Muhammadan Law 96.
Our. adv. wit.
February 23, 1912. Lascelles C.J.—
The plaintiff, who is a Muhammadan lady, sued her husband forRs. 750, which he had promised at the time of their marriage to giveher by way of dower or maggar. The defendant pleaded that hewas not liable to pay this amount, on the ground that his marriagewith the plaintiff was not perfected -by cohabitation. Two issueswere fixed, namely: —
Was the alleged marriage between the plaintiff and defend-
ant perfected by cohabitation? and
If not, can the plaintiff sue for maggar?
I (1911) 14 N. L. R. m.5 (1889) 9 S. C. C. SI.
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On October 16 there is a journal entry: “ The plaintiff is notready on the issue of fact." On October 25 the plaintiff’s advocatestated that the plaintiff declined to attend and give evidence on theissue of fact, and, after referring to the Muhammadan law on thesubject, urged that the plaintiff was in any case entitled to one-halfof the stipulated maggar.
The learned District Judge in his judgment held that as theplaintiff had failed to give evidence the marriage must be* takennot to have been consummated, and he gave judgment for theplaintiff for half the amount claimed. From this judgment thedefendant now appeals, on the ground that, as there was no proofthat non-consummation was due to any default on his part, he isnot liable to pay any part of the dower. In order to deal with thisplea it is necessarily to consider the general rule of Muhammadanlaw which is applicable in such cases, and also the Shafei doctrine,which is followed by the Muhammadans of Ceylon. Of the generalrule of Muhammadan law there can be no doubt that if the partiesseparate before consummation, the wife receives half the specifieddower. “ If ye divorce them, ” runs the text of the Koran, ” beforeye shall have touched them, ye shall pay them one-half of what yehave settled.”
Acording to the Shafei doctrine the wife’s right to the entiretyOf the dower vests in her only when the marriage has been consum-mated, or when she or her husband has died before consummationand during the existence of the contract.
Under the Hanafi rule, when separation takes place beforeConsummation or valid retirement the wife is entitled to half thespecified dower (Amir Ali, vol. I/., p. 589). The rule would appearto be the same under the Shafei doctrine, subject to the exceptionthat ” valid retirement ” is not accepted as equivalent to consum-mation (Hamilton's Hedaya, vol. /., V* 127). But the defendantalleges that this right does not exist where the non-consummationis not proved to be due to some fault of the husband. The Shafeidoctrine on the subject is plainly stated in Vander Bey's Frenchversion of the Minhadi-at-TaUlin. The following is a rough trans-lation of the French text at page 389 of vol. II.: “ The separationof husband and wife before the marriage is consummated, whetherit takes place at the instance of the wife or is attributable to*something for which the wife is responsible, as where the marriageis dissolved by reason of vices redhibitoires on Her part, cancels theobligation to pay dower. Where separation before consummation isdue either to some act of the husband, as repudiation, the conversionor apostasy of the husband, &c., or to some act of-a third party, thehusband is always liable for half of the dower which the wife mighthave claimed if the marriage had remained intact.” Thus, the generalrule is that the wife is entitled to half the dower if the parties separatewithout consummating the marriage. To this rule there is an*
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exception. The wife is not entitled to any dower if the separationis due to vices redhibitoirea on her part, that is to say, to certainmental or physical defects which are considered in Muhammadan lawto be disqualifications for marriage. But according to the Shafeidoctrine as enunciated in the Minhadi-at-Tdlilin, the defence putforward in the petition cf appeal, namely, that there is no evidencethat non-consummation was due to any default on behalf of thedefendant, will not help the defendant. He might have escapedhis obligation to pay any part of the dower, if he had pleaded andproved that non-consummation was attributable to some defect onthe part of his wife which the law acknowledges as a disqualificationfor marriage; but the plea that there is no evidence that non-consummation was not due to any fault on his part, even if it hadbeen raised at the proper time, is no answer to the claim. In anycase it is not a plea which could have been raised for the first timein the petition of appeal.
The respondent has given notice of objection to the decree on theground that there was no evidence of non-consummation, and thatshe should therefore have been awarded the whole and not half onlyof the dower. I think that the onus of proving non-consummation,properly rested on the' defendant, who had raised that ground ofdefence in his answer. But it seems clear that when the plaintiffdeclined to go into the box, the case proceeded to trial on thefooting that consummation had not taken place. In view of therespondent’s acquiescence in this cause, I think she cannot now takeadvantage of the circumstance that non-consummation was notstrictly proved.
For the above reasons, I tbink the judgment of the District Courtwas right, and I would dismiss the appeal with costs.
This ease is in a very unsatisfactory condition, as no evidence was
. called on either side on certain questions.of fact in regard to whichthe parties were apparently not in agreement. On the materialsplaced before the lower Court, and in view of the position taken upby the plaintiff’s counsel, it is manifest, however, that the plaintiffadmitted there had been no consummation of the marriage. Thedefendant expressly denied that the marriage was perfected bycohabitation, and the weight of the authorities cited to us at theargument and referred to in the^udgment of my Lord supports thefinding of the District Judge, that where there is no consummationthe wife is entitled only to half the maggar. I agree to dismiss theappeal with costs.
UMMA v. MARIKAR