Deen v. Rauff
COURT OF APPEALISMAIL. J.
BOARD OF QUASIS.
NO. E 23306.
QUAZI COURT. COLOMBO SOUTH.
APRIL 3 AND 4. 1997.
Muslim Marriage and Divorce Act, No. 13 of 1951 – Section 28(1) of the Act -Fasah Divorce – Quazi Court – Shafie Law.
The respondent while residing at the matrimonial house together with herpetitioner husband filed an application on 22.6.92 at the Quazi Court seeking a'Fasah' Divorce under section 28(1) of Act. No. 13 of 1951, on the ground of ill-treatment.
The petitioner too initiated proceedings seeking a divorce from his wife in August1992, on the ground of immorality and unfaithfulness on her part. However noproceedings appear to have been taken on this application.
According to the journal entries, it is recorded that the father of the respondenthas sent a letter objecting to a divorce being granted to her. The father hadalleged that the respondent is having an immoral relationship with one S, and hehad also expressed fear that if his daughter is granted a divorce she would sellher properties and would emigrate.
The Quazi accepted that grounds amounting to a ‘fault’ under Muslim Law for thegrant of a ‘Fasah’ divorce have been established by the respondent wife.
The petitioner appealed to the Board of Quazis on the ground that the Quazi hadfailed to comply with the Rules in the Third Schedule to the Act and that he hasconducted the proceedings in violation of the rules of evidence and had beeninfluenced by extraneous considerations. The Board of Quazis after holding thatthe Quazi has clearly erred in failing to hold the inquiry in conformity with the rulesas prescribed in the Third Schedule, observed that in any event the Quazi hadconducted a complete inquiry, and that there was ample evidence for the grant ofa fasah divorce and did not consider it appropriate in the circumstances of thiscase to remit it for a fresh inquiry.
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On Appeal -Held:
The petitioner’s representative conceded that the petitioner did assault therespondent, that the petitioner continued to maintain only the children, suchadmissions may be regarded as a substantiation for the requirement of proof bytwo witnesses.
Habitual physical ill-treatment is not necessary to establish a 'fasah' divorce.The method, degree and standard of ill-treatment required to constitute a ‘fasah’divorce amongst Muslims belonging to the Shafie sect are much less than that isrequired under the common law. No physical ill-treatment is necessary for a fasahdivorce according to Shafie Law. If a husband makes his wife’s life miserable bycruelty of conduct even when it does not amount to physical ill-treatment, the wifecan claim a 'fasah' divorce.
The petitioner’s representative has not made any application to the Quazi norhas any endeavoures been made to call witness or to offer any other evidence tosubstantiate the allegations of immoral conduct on the part of the respondent.
Under the Muslim Law, a husband who habitually makes false allegations ofadultery against his wife is guilty of cruelty and that such cruelty is a valid groundfor divorce.
“She is equally entitled to a separation when he charges her withunfaithfulness to him and yet refuses to establish the accusation by a formalproceeding.”
APPLICATION for Leave to Appeal from the Order of the Board of Quazis.
Cases referred to:
Abdeen v. Johora -Vol. 3 MM & DLR 77.
Zanooba v. Nazirin-Vol. 3 MM & DLR 108.
Rasheeda v. Usoof Deen- Vol. 4 MM & DLR 162.
Faisz Musthapha P.C. with Thahir for the petitioner.
M.Markhani with Dr. M. S. Jaldin for the respondent.
Cur. adv. vult.
The application of the petitioner for leave to appeal from the orderof the Board of Quazis dated 7.6.95 was refused at the conclusion ofthe hearing on 4.4.97. The reasons for such refusal are now beingset out.
Deen v. Rauff (Ismail, J.)
The petitioner abovenamed married the respondent on 18thDecember 1976. There are three children by the said marriage, twoof whom are girls born on 11.7.80 and 16.4.83 and third, a boy bornon 11.7.86. They are presently in the custody of the respondent.
The respondent wife while residing at the matrimonial hometogether with the petitioner husband filed an application on 22.6.92 inthe Colombo South Quazi Court seeking a ‘fasah’ divorce undersection 28(1) of the Muslim Marriage and Divorce Act, No. 13 of1951, as amended, – Cap. 134 – LE – 1980-revised edition(unofficial).
The appellant-petitioner left for Japan in connection with hisemployment shortly after receiving notice from the Quazi Court andhe did not appear personally at any stage of the proceedings heldbefore the Quazi. His sister Mrs. Naima Sidique who held a power ofattorney from him attended to all matters in connection with theapplication for divorce field by the respondent.
When this matter came to be considered by the Quazi on 20.11.93the respondent moved for an early determination of her applicationfor divorce which had been filed about one and a half yearspreviously on 22.6.92. The case had by this time during the one anda half year period been called on more than 8 occasions on whichthe respondent was present while, as noted earlier, the petitioner hasnot participated in these proceedings at all in person. He had gone. abroad for employment and was represented by his sister. Theinquiry then commenced with the applicant-respondent adducingreasons for her seeking a divorce. She stated that the petitionerassaulted her on 17.6.91, in regard to which she has made acomplaint at the Wellawatte Police Station and had taken medicaltreatment. She produced a copy of the said complaint dated 24.6.91and a copy of an undated letter sent to her by the petitioner in thisregard. She also alleged that the petitioner was spreading falserumours about her. She undertook to state her case more fully inwriting.
Mrs. Naima Sidique, the petitioner’s representative stated to theQuazi that the applicant’s father is opposed to his daughter beinggranted a divorce and that her brother, the petitioner is abroadtemporarily in Japan and employed there due to the wrongfulconduct of his wife and that he continues to send money for
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maintenance only for the children. The petitioner’s representative didnot, however, seek to challenge the allegation of assault on the wifeor her complaint to the police or even the further allegation that thepetitioner was spreading false rumours about his wife.
The applicant respondent thereafter set out in detail her reasonsfor seeking a divorce in a letter dated 26.3.94 forwarded to the Quazi.She has referred to the incidents of assault, the attempts made byher husband to have her property transferred to him and his failure tomaintain her.
The Quazi has noted in his order that there was no possibility of asettlement between the parties and that after the incident of assaultreferred to by the wife, she and her children were living since June1991 in a room in the same house apart from the husband.
Meanwhile, the petitioner had also initiated proceedings seeking adivorce from his wife in August ’92. A copy of a registered letterdated 9th August 92 (XI) sent by the appellant-petitioner to the Quaziwho held office previously, that he is seeking a divorce from his wifewas forwarded by his representative along with the writtensubmissions. Thereafter the appellant-petitioner wrote on 28.2.94 (X3)to the Quazi giving his reasons for seeking a divorce from his wife.He confirmed that he is seeking a divorce from his wife on the groundof immorality and unfaithfulness on her part. He alleged that his wifewas seeking a divorce from him to enable her to marry oneSivapathanathan with whom she was having an 'illicit affair’. It wasalso pleaded in the said letter that it is evident from her father’sstatement that she is still continuing with her immoral activities. Hedesired that a divorce be granted to him on his application. However,no proceedings appear to have been taken on the husband’sapplication for divorce and the present case is in respect ofproceedings held before the Quazi pursuant to the application for a’fasah’ divorce made by the wife.
According to the journal entry dated 23.10.93 it is recorded thatthe father of the applicant-respondent has sent a letter objecting to adivorce being granted to her. The Quazi has referred to the contentsof a statement dated 24.9.93 written by the father of the respondentalleging that the cause for the dispute between his daughter and her
Been v. Rauff (Ismail. J.)
husband is his daughter’s immoral relationship with one ‘Sivapatham’.He also expressed fear that if his daughter is granted a divorce shewould sell her properties and would emigrate to Canada. Theapplicant-respondent’s father has not appeared before the Quazithereafter and his evidence has not been recorded at the inquiry.
The inquiry continued on 19.3.94 and two witness named M. K.Ashroff and M. A. Hassen gave evidence for the applicant wife. Thewitness Ashroff stated the appellant-petitioner has assaulted andharassed the applicant-respondent. The appellant-petitioner’srepresentative accepted his evidence regarding the assault butstated that it took place only when he was provoked. The partieshave thereafter tendered written submissions and the Quazi deliveredhis order on 30.9.94 granting the applicant wife a divorce. The Quazihas accepted that grounds amounting to a ‘fault’ under Muslim Lawfor the grant of a ’fasah’ divorce have been established by therespondent wife.
Being aggrieved by the order of the learned Quazi, the appellant-petitioner’s representative Mrs. Sidique filed a petition of appealdated 29.4.94 to the Board of Quazis chiefly on the ground that theQuazi has failed to comply with the rules in the Third Schedule to theAct and that he has conducted the proceedings in violation of therules of evidence and has been influenced by extraneousconsiderations. Learned counsel for the appellant-petitioner referredin particular to the failure of the Quazi to empanel the assessors inthe manner prescribed by the regulations, the failure to administerthe oaths to them before they commenced their functions, the failureof the witnesses to give evidence on oath or affirmation and thefailure to obtain the opinions of the assessors on the points arisingfor adjudication. The submission of counsel that the learned Quazihas erred in failing to comply with the rules in the Third Schedule isjustified.
The Board of Quazis has in this connection referred to its judgmentin Vol. 4 MM & DLR 65 where it was observed that it was regrettablethat some Quazis are not familiar with the procedure prescribed to befollowed in the Quazi courts. In the present case the assessors werepresent when the statement of the respondent and her witnesseswere recorded. The petitioner being absent, his representative didnot seek to cross-examine the witnesses or offer a serious challengeto the case put forward by the respondent. The Quazi has permitted
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the respondent additionally to state her case in writing and hasaccepted documents tendered by both parties along with theirsubmissions. The learned Quazi has clearly erred in failing to holdthe inquiry in conformity with the rules as prescribed in the ThirdSchedule to the Act. However, the Board of Quazis havingconsidered that the Quazi has conducted a complete inquiry and thatthere was ample evidence for the grant of a 'fasah' divorce did notconsider it appropriate, in the circumstances of this case, to remit itfor a fresh inquiry.
The petitioner's representative conceded that the petitioner didassault the petitioner but that it was confined to occasions when hewas provoked. She also conceded that the petitioner continued tomaintain only the children. The case for the respondent wife was thatlong before she filed this application for divorce in June '92, she hasbeen living apart from her husband since June '91 with her childrenin a room though in the same house. This is confirmed by thepetitioner in paragraph 6 of his petition of appeal filed before theBoard of Quazis where it is additionally stated that the respondentalso refused to fulfil her conjugal and marital obligations during theperiod. In Abdeen v. Johora™ where the respondent admitted all thefacts alleged by the respondent wife which entitled her to a divorce,Hearne J. held that such admission may be regarded as a substitutefor the requirement of proof by two witnesses.
Section 28(1) Muslim Marriage and Divorce Act is as follows:
"Where a wife desires, to effect a divorce from her husband,without his consent, on the ground of ill-treatment or on account ofany act or omission on his part which amounts to a 'fault' under theMuslim Law governing the sect to which the parties belong theprocedure laid down in the Third Schedule shall be followed."
The Board of Quazis in Zanooba v. Nazim™ made the followingobservations on a consideration of the repealed section 51 ofChapter 99 LEC which provided for a ’fasah' divorce.
"It will be observed that habitual physical ill-treatment is notnecessary to establish a ‘fasah’ divorce. The method, degree andstandard of ill-treatment required to constitute a ‘fasah’ divorceamongst Muslims belonging to the Shafie Sect are much less thanthat is required under the Common Law of Ceylon. As a matter offact, no physical ill-treatment is necessary for a 'fasah' divorce
Been v. Rauff (Ismail, J.)
according to Shafie Law. If a husband makes his wife’s life miserableby cruelty of conduct, even when it does not amount to physical ill-treatment, the wife can claim a 'fasah’ divorce", (vide Amir AN,Volume II, Fourth Edition, at page 585).
The petitioner has made the allegation that his wife is having an‘illicit affair’ with one Sivapathanathan and that she is seeking adivorce to enable her to get married to him. The respondent on herpart has stated that the petitioner is spreading false rumours abouther. The petitioner has specifically stated in paragraph 5 of hispetition of appeal that the respondent is continuing to maintain anextra marital relationship with the said Sivapathanathan. It has alsobeen submitted that these allegations have not been proved to befalse and that the respondent’s father too has made seriousallegations of misconduct on her part. The petitioner faults the Quazifor not excercising his inherent powers to summon the respondent’sfather to give evidence regarding this matter. Yet, the petitioner’srepresentative has not made any application to the Quazi in thisregard nor has any endeavour been made on behalf of the petitionerto call witnesses or to offer any other evidence to substantiate theseallegations of immoral conduct on the part of his wife. Pulle J. held inRasheeda v. Usoof Deen&) that under the Muslim Law a husbandwho habitually makes false allegations of adultery against his wife isguilty of cruelty and that such cruelty is a valid ground for divorce.Amir Ali on Muslim Law, 5th ed. at page 522 says that “She is equallyentitled to a separation when he charges her with unfaithfulness tohim and yet refuses to establish the accusation by a formalproceeding".
The Board of Quazis has accepted the position that there wasample evidence before the Quazi to entitle the respondent to anorder for ’fasah’ divorce which has now been registered on 7.7.95, asevident from the certificate of the registration of the divorce (X5). Inmy view the Board of Quazis was justified in affirming the order of theQuazi granting the respondent a fasah divorce.
For these reasons the application of the appellant-petitioner forleave to appeal from the order of the Board of Quazis was refused.No costs.
Leave to appeal refused.
DEEN v. RAUFF