033-SLLR-SLLR-1978-79-V2-Burhan-v.-Ismail.pdf
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Sri Lanka Law Reports (1978-79) 2 S. L.R.
Burhan v. Ismail
COURT OF APPEAL.
RATWATTE, J. AND TAMBIAH, J.
S.C. (C.A.) l/?7-—BOARD OF QUAZIS, COLOMBO 1761.
NOVEMBER 6, 1978.
Muslim Law—Maintenance—Father’s duty to maintain his son—Whendoes that duty cease.
Where a Quazi Court dismissed an appication for the enforcement of amaintenance order on the ground that the child in question was over 18years of age and it was submitted in appeal that the said child was un-employed and continuing with his studies and entitled therefore tomaintenance:
Held
Inasmuch as a Muslim father was required to continue to maintainhis adult son in these circumstances, the Quazi Court should have inquir-ed into this aspect of the matter.
Case referred to
(ll Ummul Marzoona v. Samad, (1977) 79(1) N.L.R. 209.
APPEAL from an order of the Board of Quazis.
E. St. N. D. Tillekeratne, for applicant-appellant.
Respondent absent and unrepresented.
November 6, 1978.
RATWATTE, J.
The appellant and the respondent had been married and laterdivorced under the Muslim Law. There is one child of thatmarriage. By order dated 11.4.1957 the respondent was orderedto pay a sum of Rs. 30 per month as maintenance in respect ofthe child. Subsequently, upon a settlement dated 29.4.1972 therespondent had consented to pay Rs. 50 per month up toFebruary 1974. At the time the settlement was entered into, thechild was 17 years of age. On 17.9.1975 the appellant, who is themother of the child, filed an affidavit in the Quazi Court,Colombo South, and moved for an enforcement order in respectof the arrears of maintenance for her son amounting to Rs. 900for the period 1.3.1974 to 31.8.1975 at the rate of Rs. 50 per month.On 8.2.1976 the Quazi of Colombo South made order dismissingthe application for an enforcement order only on the groundthat the child was over 18 years of age. The appellant there-after appealed to the Board of Quazis against the order of theQuazi Court.
CA
Burhan v. Ismail (Ratwatte, J.)
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On 9.6.1976 the Board of Quazis after hearing the partiesaffirmed the order of the Quazi and dismissed the appeal. Theappellant appeals to this Court against the order of the Board ofQuazis. The only ground on which the enforcement order wasrefused was that the child had reached the age of 18 years. Thelearned counsel for appellant cited the judment of the SupremeCourt in the case of Ummul Marzoona v. A. W. A. Samad (1). Inthat case, Vythialingam, J., after consideration of the authoritiescited, stated as follows : —
"Under the modern conditions even the simplest jobrequires some form of educational qualification. The require-ment that a Muslim father should continue to support hisadult son who is engaged in studies in order to qualify foremployment is, therefore, in keeping and not in conflict, withthe Shaffi School of Muslim Law which requires a Muslimfather to maintain his adult son who is necessitous or isincapacitated or disabled by infirmity or disease. For anadult son who is engaged in studies is also necessitous or isincapacitated from earning his livelihood because of hisstudies. ”
In that case, Justice Vythialingam set aside the order of theBoard of Quazis.
Counsel for the appellant states that the appellant’s child isunemployed and is continuing his studies. While we are inagreement with the judgment cited above, we set aside the orderof the Board of Quazis, and send the case back to the QuaziCourt, Colombo South, for inquiry into the application for en-forcement. The Quazi Court can inquire into the question asto whether the child in question is unemployed and is innecessitous circumstances. The appellant would be entitled tothe costs of this appeal.
TAMBIAH, J.—I agree.
Set aside and sent back.-