090-NLR-NLR-V-65-A.-L.-M.-ISMAIL-Appellant-and-A.-A.-MUTHU-MARLIYA-Respondent.pdf
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HERAT, J.—Ismail v. Muthu Marliya
1863Present: Herat, J.
A. L. M. ISMAIL, Appellant, and A. A. MUTHUMARLIYA, Respondent
S. C. 476/63—M. G. Kalwtara, 7728
Maintenance—Muslim Marriage and Divorce Act {Cap. 115)—Claim Jor main-tenance under Section 47—Exclusive jurisdiction conferred by Section 48 onQuasi—Invalidity of appointment of Quasi under Section 12 (i)—ConstitutionOrder in Council, 8. 55—Lack of jurisdiction of a Magistrate’s Court to hearsuch claims under Maintenance Ordinance {Cap. 91).
A Magistrate’s Court has no jurisdiction to hear under the MaintenanceOrdinance (Cap. 91) a claim for maintenance which, by virtue of the provisionsof section 48 of the Muslim Marriage and Divorce Act, falls under the exclusivejurisdiction of a validly appointed Quazi. In such a case, the fact that Section12 (1) of the Muslim Marriage and Divorce Act is ultra vires as being in con-flict with Section 55 of the Constitution Order in Council and, therefore, thepersons appointed as Quazis by the Minister were not validly appointed is notmaterial.
Appeal from a judgment of the Magistrate’s Court, Kalutara.
Izadeen Mohamed, with M. T. M. Sivardeen, for the Defendant-Appellant.
D. J. Tampoe, with E. Manikkavasagar, for the Applicant-Respondent.
Cur. adv. wit.
September 30, 1963. Herat, J.—
The defendant-appellant is the person against whom the learnedMagistrate made order for maintenance in this case in favour of theapplicant-respondent under the Maintenance Ordinance (Chapter 91).
The parties are persons professing the Mohamedan faith and the shortpoint taken on behalf of the defendant-appellant is that the said orderis a nullity, because the learned Magistrate had no jurisdictionin view of the provisions of Section 48 of the Muslim Marriage andDivorce Act No. 13 of 1951.
Section 48 of the said Act is as follows :—
“ Subject to any special provision in that behalf contained in thisAct, the jurisdiction exercisable by a Quazi under Section 47 shallbe exclusive and any matter falling within that jurisdiction shallnot be tried or inquired into by any other Court or tribunal what-soever. ”
Section 47 (1) of the said Act provides as follows :—
“ The powers of the Quazi under this Act shall include the powerto inquire into and adjudicate upon—
any claim for maintenance by or on behalf of a wife ;
any claim for maintenance by or on behalf of a child (whether
legitimate or illegitimate).
m
HERAT, J—Ismail v. Muihu Martino
By Section 12 (1) of the said Act it is provided as follows :—
**' The Minister may appoint any male Muslim of good character
and position and of suitable attainments to be a Quasi. ”
This Court in Jailabdeen v. Danina Umma1 has held that theprovision contained in Section 12 (1) of the aforesaid Act is ultravires and void as being in conflict with Section 55 of theConstitution Order-in-Council. In other words, Quazis appointed bythe Minister, according to th« decision of this Court, have not beenvalidly appointed. As it is the decision of two judges I am bound byit when I sit as a single Judge.
The position in which Muslims now find themselves is that they cannotresort to the Court presided over by a Quazi in respect of claims formaintenance as appointment of Quazis by the Minister has been declaredillegal by this Court. In the circumstances, in this case, they haveresorted to the Magistrate’s Court in order to proceed on with their claimsfor maintenance. Have these Magistrates’ Courts jurisdiction to hearsuch claims in view of the provisions of Section 48 of the Muslim Marriageand Divorce Act No. 13 of 1951 ?
This Act No. 13 of 1951 is an Act validly passed by our Legislatureexcept for the provisions contained in Section 12 (1) relating to theappointment of Quazis by the Minister. The Act validly creates andcontemplates the office of Quazi and in my view our Legislature validlyenacted by Section 47 (1) (6) and (c), that the Quazi had power toinquire into and adjudicate upon claims for maintenance. It is also myview that our Legislature has validly enacted the provisions ofSection 48 of that Act when it declared that the jurisdiction exercisableby a Quazi in respect of maintenance cases shall be exclusive and that noother Court or Tribunal shall try or inquire into any matter falling withinthat exclusive jurisdiction. The validity of this provision clearly existsand cannot be challenged. The mere fact that the appointment ofany particular Quazi is void does not invalidate the jurisdiction conferredby our Legislature upon the office of Quazi created by it and upon thevalid creation of the exclusive jurisdiction given in certain matters.That question of exclusive jurisdiction has nothing to do with theinvalidity of any particular appointment.
My opinion, therefore, is that the Magistrate’s Court had no jurisdictionto hear and try this maintenance case and that the order made by thelearned Magistrate as well as all the proceedings constitute a nullity.I therefore allow the appeal and set aside the order for maintenanceand quash all the proceedings bad in the Magistrate’s Court on theground that those proceedings are null and void as being in a Courtwithout jurisdiction. The Defendant-Appellant is entitled to his costsof appeal.
Appeal allowed.» (1992) 94 N. L. B. 419.