Sri Lanka Law Reports
(1991) 1 Sri L.R.
YASMIN JABIR NEENAZICK
COURT OF APPEAL
P.R.P. PERERA, J. (PRESIDENT C.A.)ANDWEERSEKERA, JC.A. APPLICATION NO. 134/90QUAZI COURT COLOMBO SOUTHNO. 3572/20
BOARD OF QUAZIS NO 3085/R04 JUNE AND 01 JULY 1991
Muslim Law – Fasah Divorce – Leave to appeal from order of Board of Quazis.
An order made by the Board of Quazis in the exercise of their powers under sections43 and 44 of the Muslim Marriage and Divorce .Act does not come within the ambitof the order envisaged in Section 60(1) of that Act which provides for an appeal to
CAAmeera Jabir v. Yasmin Jabir Nee Nazick (P.R.P. Perera, J.)283
the Board of Quazis by a party aggrieved by any final order made by a Quazi underthe Rules in the Third Schedule or in an inquiry under section 47. No leave to appealcan be granted where the petitioner who was the mother of the divorced husbanddid not hold a power of attorney from him
APPLICATION for leave to appeal under section 62 of the Muslim Marriage andDivorce Act.
M. Farook Thahir with M. Ashroff Rumi for petitioner.
M. Markhani with A. Kalam for respondent.
August 02, 1991
P.R.P. PERERA, J. (P/CA)
This is an application for leave to appeal against the order of theBoard of Quazis dated 5th September 1990 upholding a preliminaryobjection raised on behalf of the applicant-respondent that thepetitioner has no status to file a revision application before thatBoard, on the ground that she did not hold a power of Attorney fromher son Innam Jabir, who was the respondent to the applicationbefore the Quazi Court. The petitioner in that application sought tohave the order of the Quazi Court of Colombo South set aside bythe Board of Quazis in terms of Section 44 of the Muslim Marriage& Divorce Act (Cap. 134).
The facts of this case are briefly as follows:-
The applicant-respondent filed an application bearing No. 3572/20 inthe Quazi Court of Colombo South seeking a Fasah divorce on orabout 10th March 1990.
The respondent to that application the "divorced husband” did notappeal from the said order, but his mother the present petitioner filedan application for revision before the Board of Quazis on or about23rd April 1990, under the provisions of Sections 43 & 44 of theMuslim Marriage & Divorce Act (Chap. 134). This application wasdismissed by the Board of Quazis after due consideration on 5thSeptember 1990, on the ground that the petitioner was not entitledto maintain such application as she did not hold a power of Attorneyfrom her son Innam Jabir who was the respondent to the original
284Sri Lanka Law Reports(1991) 1 Sri L.R.
application before the Quazi Court. Admittedly the petitioner was nota party before that Court.
When the present application for leave to appeal came up forargument on 4th June 1991, Counsel for the applicant-respondentraised a preliminary objection that an application for leave to appealdid not lie to this Court from orders made by the Board of Quazisunder the provisions of Sections 43 & 44 of the Muslim Marriage &Divorce Act (Chap. 134.)
Counsel for the applicant-respondent in my opinion, very rightlysubmitted that the only provision in the Muslim Marriage & DivorceAct which dealt with matters relating to leave to appeal wascontained in Section 62 of that Act. Section 62(1) provides that anyparty aggrieved by any act of the Board of Quazis on any appealunder Section 60 may with the leave of the Court of Appeal hadand obtained appeal to that Court from that order.
It would therefore be relevant to consider the provisions of Section60 of this Act which is reproduced below. "Any party aggrieved byany final order, made by a Quazi under the Rules in the Thirdschedule or in an inquiry under Section 47 shall have an appeal tothe Board of Quazis provided that there shall be no appeal from a.norder absolute made in accordance with the Rules in the 4thSchedule in any inquiry under Section 47.
It was counsel's submission therefore that Section 62 places aspecific limitation upon the matters in respect of which an applicationfor leave to appeal to the Court of Appeal may be entertained.Counsel contended further that an order made by the Board ofQuazis in the exercise of their powers under Section 43 & 44 of theMuslim Marriage & Divorce Act did not come within the ambit of theorder envisaged in Section 60(1) of that Act. I
I have carefully perused the provisions of Section 47 and the rulesin the 3rd Schedule and I agree with counsel that this Statuteprovides a right of appeal only to a party aggrieved by an ordermade by the Board of Quazis on any appeal lodged against a finalorder made by a Quazi under the Rules in the 3rd Schedule or inany inquiry under Section 47 of this Act. I hold therefore that theorder made by the Board of Quazis in this case under the provisionsof Section 44 does not come within the purview of Section 60 ofthis Act.
Independent Newspapers Limited v. Gunasingham
The question of granting leave to appeal to the Court of Appeal interms of Section 62(1) would therefore not arise.
The application for leave to appeal is accordingly dismissed withcosts fixed at Rs. 525/-.
WEERASEKERA, J. – I agree