ABDUL CADER, Appellant, and RAZIK et al., Respondents

029-NLR-NLR-V-52-ABDUL-CADER-Appellant-and-RAZIK-et-al.-Respondents.pdf

1950Present .- Jayetileke C.J. and Swan J.ABDUL CADEB, Appellant, and BAZIK et at., BespondentsS. C. 27—D. C. Colombo, 4,518jG
Muslim. Law—Marriage—Muslim maiden of Hanafi sect—Beloio 21 years of age—
Her right to marry without assistance of wali—Age of Majority Ordinance-
(Cap. 53)—Muslim Marriage and Divorce Registration Ordinance (Cap. 99),
Sections 8 (1) and 50.
A Muslim attains “ majority for purposes of marriage, on reaching the:age of bulugh or puberty.
There are Muslims of other sects than the Shaft sect in Ceylon, and, in a.matter of marriage or divorce, a Muslim is governed by – the law of the sectto which he or shebelongs. A Muslim maiden,therefore,of the Hanafi sect-
who has reached theage of bulugh; canenter intoa contractof marriage without
the intervention of a wali or marriageguardian,or appoint a wali herself for-th e purpose of hermarriage. In thecase of.,a maidenof the -Shaft sect
whatever her age may be, a wali is necessary…
A Muslim maiden, who was below the age of 21 but who had reached theago of bulugh, entered into a contract of marriage without the consent of .herfather and having appointed her own wali. Her father was of the Shaft sect,but there was evidence to show that she herself was a Hanafi at the time whenthe marriage was solemnized : —..
Held, that there was a valid contract of marriage according to Muslim law.
PPEAL from a judgment of the District Court, Colombo.
Thiagalingam, with N. M. cle Silva, P. Navaratnarajah ancl
Arulambalam, for the appellant.—Sithy -Zubeida, a Muslim minorgirl,- married at the- age df about 15 without the consent of her father.The parents, of the girl w'ere admittedly Shafis. Znbeida’s positionis that she being a Hanafi could marry in accordance with Hanafi tenets,without the' consent of her father. The case of the appellant (the- father))is that the marriage so contracted is bad.
Firstly: —Even if the Hanafi law of marriage was held applicableto Sithy Zubeida the effect of the Majority Ordinance Ho. 7 of 1876-(Cap.- 53) has to be considered.
Capacity to be married and competency to contract a marriage aretwo different concepts. In the general Marriage Registration Ordinance(Cap. 95), section 14 deals with capacity to be married while section 21relates to competency to contract a marriage. Similar provision is-found in the Kandyan Marriage Registration Ordinance (Cap. ' 96) in.sections 9 and 10. In Muslim law*there is no corresponding statutoryprovision.’
Thus in Ceylon if the pure Hanafi law is held applicable child marriagesmay well be had. In India the Child Marriages Restraint Act 19 of1929 had effectively abolished child marriages. A male under 18 and-female under 14 cannot enter into : the married state. This act is ofgeneral application and supersedes Muslim law. Thus in India a Hanafi.Muslim female may only marry on her own when she attains puberty-The Indian Majority Act 18 of 1875 specially exempted from its operationall questions relating to marriage—But in Ceylon the Majority Ordinanceexpressly enacts in section 2 that “ Any law or custom notwithstandingthe age of majority for all purposes is 21. In that context “ any lawor custom notwithstanding ” means ‘ ‘ personal or local law ” while-in section 3 the word." law ” is used in reference to the law of the landor the common law or the residuary law. In the result even a HanafiMuslim female minor is not competent to enter into a contract ofmarriage. The case of Assanar v. Hamid 1 was wrongly decided andis in conflict with the view taken by de Sampayo J. in the ease ofNarayanan v. Saree TJm-ma et al.2. The Full Bench judgment -inDeeresekere et al. v. Goonesekara et al.3 is of binding authority and hasnot been correctly applied in Assanar v. Hamid 1. See also MuthiceChetty v. Dingiria 4 and Marik ar v. Marikar et al."4
Secondly:—Whether Zubeida be a Shafi or a Hanafi the law applicableis the. Muslim law that obtains in Ceylon. The sources of Muslim lawin Ceylon are usages and customs, judicial decisions and Statute law,and not the Muslim law found in text books. Indeed the doetrines-available to the Hanafi sect are different in different parts of India andtext writers deal with the Hanafi system obtaining in the particulararea .with which they were concerned.
The Mohammedan Code of 1806 codified the 'customs and usagesprevalent amongst the Moors in the' Colombo District. This was-extended to all the Muslims in Ceylon by section 10 of Ordinance No. 5of 1852. A Muslim girl who is a virgin, whatever her age and whateverher sect, cannot, in Ceylon, enter into a contract of marriage without-the consent of her wali. The Muslim law found in text books writtenby Indian authors and in decisions of the Privy Council in Indian
(1948) 50 N. B. B. 102.3 (1903)*1 A. G. B. 135 (F. B.) al 136.
(1920) 21 N. L. B. 439 at 440.. * (1907) 10 N. L. B. 371.
(1915) 18 N. L. B. 481 at 483.
appeals are of no value here. See Abdul Rahiman et al. v. Ussan Ummaet al.1; Sultan v. Pelvis ; Alia Marikar Abuthahir v. Aliyar MarikarMohamed Sally ; Weerasekera v- Peiris 4,* Zainabu Natohia o. UsufMohamedu 5 ; Kalenderumma v. Marikar et al.6.
Even Muslims from other countries settled in Ceylon are governedby our own system of Muslim law—Bandirala v. Mairuma Natohia 7and Khan v. Maricar 8.
These customs and usages are assumed as part of our law in the MuslimMarriages Ordinance, No. 27 of 1929, as amended by Ordinance No. 9of 1934 (Cap. 99). SeeNoorul N aleefa v.'Marikar Hadjiar®.For
the statement of objectsand reasons of OrdinanceNo. 10 of1931
(Cap 50) see the Ceylon Government Gazette of March 1, 1929, Part Hpage 178. Only in the absence of usages and customs can resort behad to textbooks—Lebbe v. Thameen et al.10; Bandirala v. MairumaNatchia 7.
Lastly, on the facts, Zubeida is a daughter of Shafi parents. Eor achange over to the Hanafi sect there must be (a) an overt act—Tyabji,3rd Edition, page 56—and (b) the party changing over must have theage of discretion. In this case all overt acts point to the fact that'Zubeida is a Shafi. Also the presumption is that she is a Shafi—seeHelen Skinner v. Sophia Eveline Orde and 3 others 11 and Amir Ali onEvidence,'' page 783, undersection 114. EveryCeylonMoor is a Shafi,
Rabia Vmrha v. Saibu 12;Mangandi Umma v.EebbeMarikar 13»Only
the father can change the religion of a. child—S'ilva v. Silva 14.
M. I. M. Haniffa, with M. H. A. Azeez and’M. Markhani, for the 1stand 2nd respondents..
H. V. Perera, K.C., with U. A. Jayasundera, K.C., M. Markhani andM. S. Abdulla, for the 4th respondent.—The majority of the Ceylon Moorsbelong to the Shafi sect. In this ease the 4th respondent has beenbrought up as a Hanafi by her grandmother who belongs to the Hanafisect. There is her uncontradicted evidence supported by hergrandfather who has changed his sect from Shafi to Hanafi.
The Muslim law allows a Muslim to change his or her sect. SeeMohamed Ibrahim v. Gulam Ahamed 15,. Fitzgerald’s Muhammedan Law,page 18. Change of sect is not like a conversion from one religion toanother..
The Age of Majority Ordinance (Cap. 53) does not affect “ majority ”for the purpose of contracting a marriage in the case of Muslims.If a Muslim attains ‘puberty he or she has the capacity to contract amarriage. See Assanar v. Hamid 1S.
9 (1947) 48. jSt. L. R. 529.
(1912) 16 N. L. R. 71.
(1871) 14 Moore's I. A. 309.
(1914) 17 1ST. L. R. 338.
(1906) 10 N. L. R. at 3.
(1947) 49 N. L. R. 73 at 76.
10 (1864) 1 Ronibay Sigh Court Reports 236
CL59
Section 50 of the- Marriage and Divorce (Muslim) Ordinance (Gap. 99))refers to the repeal of- the Sections in the Mohammedan Code of 1806>which deal with matrimonial- matters. The Code of 1806, as its-preamble states, was a compilation of the customs of the Moors by theHead Moormen of Colombo, who submitted these to the Council throughthe then Chief Justice. The preamble is no law. -Section 50 of theMarriage and Divorce (Muslim) Ordinance (Cap. 99) clearly states thatthe Muslim law of marriage and divorce shall not be affected by suchrepeal. The Muslim law contemplated in section 50 is the pureMuslim Jaw which is to be found in treatises and text books. In Lebbev. Thameen1 it was held that on a question of pure Muslim law – (as-distinguished from usage or practise) the proper course' is to refer to-the standard text books on the subject and not 'to resort to the opmiqnjof experts. See also Narayen v. Saree Umma s. In King -v. MishinUmma 3 Bertram C.J. held that the Mohammedan Code is not-exhaustive.-
The Muslim Intestate Succession and Wakfs Ordinance (Cap. 50)>states that the law applicable to the property of a deceased Muslimshall be the Muslim law governing the sect to which he or she belongs -This recognizes the existence of sects other than the Shafi sect in Ceylon.
A guardian called the wall is necessary under the Shafi law to givea Muslim girl in marriage. Amir Ali (1917 edition) on Mohammedanlaw, Vol 2 at p* 851 states that under the Hanafi law a wali is notnecessary but it is becoming for a wali to be present. Amir Ah also-states that the girl can in such a case choose her own wali (at page 350).See also Fitzgerald's Mohammedan Daw pages 56, 57 and 58 to the sameeffect. A Hanafi girl therefore can as in this case nominate anyoneas her wali provided she has reached the age of discretion (33ulugh),The evidence of the Muslim Registrar of Marriages stands uncontradicted.He says that a Hanafi bride can nominate anybody as her wali.
Section 7 of the Marriage and Divorce (Muslim) Ordinance (Cap. 50)-requires the wali of the bride to sign declarations before the priest.To comply with this procedural requirement the. 4th respondent chosea wali, although under Hanafi law it was not necessary.
C. Thiagalingam, in reply.—According to Muslim custom a wali isnecessary. The pure Hanafi law is not available to the 4th respondent.The Muslim law in force in Ceylon is in the Code of 1806—See WalterPerera’s Daws of Ceylon, page 16.
Cur. adv. vult-
September 28, 1950. Swast J.—-
(1923) 26 N. L. R. 330.
We are concerned in this appeal with the validity of an allegedmarriage between the 4th respondent and one Rasheed Bin Hassen.The matter came up indirectly before the District Court in the followingcircumstances. The appellant, who is the father of the 4th respondent—-a Muslim young lady below the age of 21—applied to the District Court-* (1912 ) 16 N. Is. S. 71.2 (1920) 21 N. L. R. 439.
of Colombo "to have himself appointed curator of the property of the4th respondent and the 3rd respondent, who is the married sister ofthe 4th respondent, appointed guardian over the person of the minor-Later he moved that a guardian ad litem be appointed over the minorfor the purpose of the substantial application he had made for theappointment of a curatorand guardian.Chapter 35of theCivil
Procedure Code deals with actions by or against minors and personsunder other disqualification.Section 502,which isthe lastsection
in that chapter, states that “ for. the ^purposes of this chapter a minorshall be deemed to have attained majority or full age on his attainingthe age of 21 years, or on manning, or obtaining letters of venia aetatis.”■The application by the appellant foil the appointment of a curator andguardian was an “action” within the meaning of section 6 of the CivilProcedure Code which declares that “every application to a Courtfor relief or remedy through the exercise of the Court’s power or authority,or otherwise to invite itsinterference, constitutes anaction.”The
second application of the appellant for the appointment of a guardianad litem was therefore, asa matter ofprocedure,entirelycorrect.
"When, however, the questionof the appointment of aguardianad litem
came up the minor herselfappeared andsaid thatshe hadmarried
Basheed Bin Hassen in the interval between the appellant’s application.and her appearance. The appointment of a guardian ad litem was,therefore, unnecessary if section 502 governed the matter as undoubtedlyit did. The appellant, however, challenged the validity of the marriageand the Court was, therefore, required in an incidental proceeding todecide this issue. After alengthy inquirythe learnedDistrictJudge
held that there had been avalid marriage.One would,in the circum-
stances, have expected a wise and tolerant father to have acceptedthat decision as final and conclusive. But he has pursued the matterfurther and has now asked this Court. to reverse the finding of the lower<Court and declare that marriage invalid.
It has been held by our Courts that marriage does not confer majorityupon a Muslim below the age of twenty-one (see Navayen v. Saree TJmmaAt al. 1 and Kalendralevvai v. Avaumma 2). Therefore it was competentfor the learned District Judge to have taken the view that, whetheror not the alleged marriage was valid, he could still proceed to appointa guardian over the person of the 4th respondent and a curator 'of herproperty. It is only in respect of actions by or against minors thatthe procedural requirements of Chapter 35 of the Civil Procedure Codeare applicable. In point of fact what happened after the learned Judge’sfinding regarding the validity of the alleged marriage shows that theparties accepted this as the correct legal position, for on January – 27,1949, of consent Basheed Bin Hassen was appointed curator “withoutprejudice to the rights of either party with regard to' the validity ofthe marriage which question is now under appeal.”
As regards the question at issue on this appeal the following facts■should be noted. The 4th respondent was, at the date of the impugnedmarriage, 15 years and *2 months old. By letter X2 addressed toiKatheeb A. J. M. Warid, Muslim Begistrar of Marriages, she requested1 (1920) 21 N. L. R. 439.2 (1947) 48 N. L. R. 508.
him io marry her to Mr. Rasheed Bin Hassen according to the HanafiLaw. In the same letter she informed the Registrar that she hadappointed her uncle, Mr. Marikar Mohideen, as her wali. X3 is. theact of appointment, X4 is an affidavit in which the 4th respondent givesthe date of her birth, declares that she has passed the age of bulugh ordiscretion, and states that she belongs to the Hanafi sect and followsher religion accordingly. The marriage was solemnized according toMuslim rites by Katheeb Warid on December 11, 1947, as appears fromthe certificate of marriage issued^by him marked XI.
The first point to consider is whether the 4th respondent was or wasnot a Hanafi at the time of the alleged marriage. The learned Distract'Judge has held that she was a Hanafi and with that finding we agree.I would say that, on the evidence, a contrary view would have beenunreasonable, especially if one bears in mind the fact that the 4threspondent was brought up from her infancy by her maternal grand-mother, the 2nd respondent, who is a Hanafi.
The next point is whether, being a Hanafi, the 4th respondent couldcontract herself in marriage. Mr. Thiagalingam admits that underwhat he calls “ pure ” Muslim Law a Hanafi girl who has reached theage of bulugh can marry without the assistance of a wali or marriageguardian. He contends, however, that that law is not applicable toMuslims in Ceylon.
Mr. Thiagalingam firstly relies upon the Age of Majority Ordinance,No. 7 of 1865 (Cap. 53 of the New Legislative Enactments). ThatOrdinance makes twenty-one years the legal age of majority for allpersons for all purposes. Mr. Thiagalingam points to section 2 of theIndian Majority Act 9 of 1875 which provides “ that nothing hereincontained shall affect (a) the capacity of any person to act in thefollowing matters, namely marriage, dower, divorce and adoption ”and argues that, in the absence of a similar reservation in our Age ofMajority Ordinance, twenty-one years is the age of majority for Muslimsin all matters including marriage. But our Courts have consideredthe effect of the Age of Majority Ordinance on the rights of Muslimsin the matter of marriage and taken the view that “ majority ” for thepurpose of a marriage contract in the case of Muslims is not affectedby that Ordinance. In Marikar v. Marikar1 Sampayo J., havingdiscussed the age of capacity for Muslims, made the followingobservations : —
“ According to Muhammadan Law, therefore, not only has CaderSaibo Marikar attained the age of ‘ majority ’ and become capableof contracting himself in marriage but the authority of the plaintiffas guardian, if any, has ceased. But some difficulty arises out of theprovisions of Ordinance 7 of 1865 which fixes the legal age of majorityat twenty-one years. In my opinion the Ordinance has regard to theattainment of legal majority for general purposes, or the majority whichunder the Muhammadan laic is conferred by * discretion and, does notaffect the age of capacity, for purposes of marriage.” In Narayen v. SareeUmma2 Sampayo J. referred to the earlier »case mentioned above andsajd “as was pointed out in Marikar v. Marikar there are two kinds1 (1915) 18 N. L. B. 481.* (1920) 21 1ST. L. B. 439.
of majority 'Tinder Muh amm ad an law, namely one as regards capacityto marry without the intervention, of a guardian a/nd the other as regards a-general capacity to do other acts as a major.” With. regard to those'Other acts it was held that the Age of Majority Ordinance was applicablet© Muslims as well. But this decision has been dissented from inAssanar v. Hamid1 where it was held in effect, that for all purposesa Muslim minor attained majority on reaching the age of puberty-We are content, in this case, to say that for the purpose of marriagea Muslim attains majority ” on reaching the age of bulugh or puberty.
The last point for determination is whether a Muslim girl can enterinto a contract of marriage in Ctylon without a wali or marriageguardian. Tor a virgin of the Shafi sect, whatever her age may be, awali is necessary.Tor a -Hanafi girl who has attained the age of
“bulugh” a wali is not required. Mr. Thiagalingam, however, contendsthat the latter principle has never been adopted in Ceylon and, in support.of his contention, points to sections 64 and 65 of the Mohammedan Codeof 1806. But that Code has been repealed, and in place of those■sections which dealt with intestate succession we have the MuslimIntestate Succession and Wakfs Ordinance 10 of 1931 (Cap. 50), andin place off those sections which dealt with marriage and divorce wehave Ordinance 27 of 1929 as amended by Ordinance 9 of 1934 (Cap. 99).Section 50 of Cap. 99 reads as follows—“The repeal of sections 64 to102 (first paragraph) of the Mohammedan Code of 1806 which is effectedby this Ordinance shall not affect the Muslim law of marriage and’divorce and the rights of Muslims thereunder.” Mr. Thiagalingamsays that although sections 64 to 102 have been repealed we must stilllook to those sections for the relevant Muslim law. With thatcontention we do not agree. We know that the Code of 1806 was-compiled at a time when it was believed that all Mohammedans in Ceylonwere of the Shafi sect. In fact, when that Code was submitted to theGovernor it was stated to be “ the Code of the laws observed by theMoors in the province of Colombo and acknowledged by the headMoormen of the district to be adopted to the present usages of thecaste.” It was soon realized that the Code was not exhaustive, andour Courts have held that where it is silent recourse should be had to-text books for the relevant Muslim law. It was also found, in courseof time, that there were other sects than Shafis in Ceylon. The rightof every Muslim to deal and be dealt with according to the law of theparticular sect to which he belongs is expressly stated in the MuslimIntestate Succession and Wakfs Ordinance (Cap. 50). That Ordinancewas proclaimed on June 17, 1931. In it we find a declaration thatthe law applicable to the intestacy of any deceased Muslim domiciledin Ceylon shall be the Muslim law governing the sect to which hebelonged :and as regards donations not involving fidei commissa,
usufructs and trusts a declaration to the like effect. The Marriageand "Divorce (Muslim) Ordinance, No. 27 of 1929, as amended byOrdinance 9 of 1934 was proclaimed on January 1, 1937. By that timethe Legislature had openly recognised the right of Muslims in certain,matters to deal and be dealt with according to the law governing the
sect to which, they belonged. It was, therefore, in our opinion,unnecessary to say so in so many words in section 50 of Cap- 99. Thewords “ Muslim Law ” in that section cannot mean anything more orless than the Muslim law governing the sect to which the particularperson belongs. We would, therefore, hold that in a matter ofmarriage or divorce a Muslim is governed by the law of the sect to whichhe or she belongs.
Even then, contends Mr. Thiagalingam, under Cap. 99 a wait isnecessary for a Muslim woman whatever her sect may be. Undoubtedlysection 8 (1) provides that the marriage register shall be signed by thewali of the bride except where the* Kathi has expressly authorised suchmarriage under section 21(2) which enables a Kathi to sanction a
marriage even against the express wishes of the wali. The proviso tothat sub-section also empowers the Kathi to authorise the registrationof a marriage where a woman has no wali. We do not think it thereforefollows that even where the Muslim law does not require the interventionof a wali in a particular case section 8 (1) supersedes that law. Thereasonable interpretation of that section read in conjunction with■section 50 appears to be that where the Muslim law requires a brideto be represented by her wali he shall sign the marriage register on herbehalf, where it does not the signature of a wali to the marriage registeris unnecessary.
In this case, however, the bride appointed her uncle as her wali andthe Kathi approved of the appointment and permitted the wali soappointed to sign the marriage register. Eitzgerald in his book onMuhammadan law at page 56 says—“ Even where a guardian issuperfluous in law it is considered respectable to have one. ” At thenext page the writer goes on to say—“ A woman of full age who candispose freely of her own hand as in Hanafi and Shia law can obviouslyask any one she chooses to give her away. ’’ Ameer Ah (4th Ed. "Vol 2,p 350) sets out the law in these words—‘' The Hanafis hold that anadult woman is always entitled to give her consent without the inter-vention of a wali. When a wali is employed and found acting on herbehalf he is presumed to derive his power solely from her. ”
It seems to be clear that under Muslim law a Hanafi maiden can actwithout the intervention of a wali or marriage guardian, or appoint awali herself for the purpose of her marriage.- We would therefore holdthat a valid contract of marriage according to Muslim law was enteredinto between the 4th respondent and Rasheed Bin Hassen on December 11,1947, and that the marriage was duly registered in accordance withthe provisions of the Marriage and Divorce (Muslim) Ordinance—Cap. 99.
The appeal fails and is dismissed with costs. –
-7 a yet il eke C. J.—I agree.-
■ »
Appeal dismissed.