096-NLR-NLR-V-34-JAMALDEEN–v.-HAJIRA-UMMA.pdf
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Jamaldeen v. Hajira Umma.
1932Present: Jayewairdene AJ.
JAMALDEEN v. HAJIRA UMMA.
179—C. R. Gampola, 10,119.
Muslim Law—Wife divorced by husband—Action by husband to recover thali—Jurisdiction of Court of Requests.
Under the Muslim Law a husband who has divorced his wife is notentitled to recover the thali given by him to her at marriage.
In such a case the Court of Requests has jurisdiction to determinewhether there has been a valid divorce between the parties.
JAYEWAUDENE A.J.—Jamaldeen v. Hajira Umma.
357
^^PPEAL from a judgment of the Commissioner of Requests, Gampola.
E. Navaratnam, for defendant-appellant.
H. E. Garvin, for plaintiff-respondent.
June 30, 1932. Jayewardene A.J.—
The plaintiff alleged that in May, 1929, on the occasion of his marriageto the defendant, he gave the defendant, his wife, a gold sovereignnacklace known as “ thali ”, that in March, 1931, he divorced his wife,and that she has become liable to return the thali or to pay its value.The defendant denied the divorce, and pleaded- also that the plaintiffwas in wrongful possession of a portion of the thali containing preciousstones of the value of Rs. 75. She denied her liability to return it.The learned Commissioner of Requests entered judgment for the plaintiffas prayed for and the defendant has appealed.
The Commissioner held that there had been a legal divorce, and thefirst point raised was that the Court of Requests had no jurisdiction todetermine this question, and that the District Court alone had juris-diction in all matrimonial matters under sections 64 and 77 of the CourtsOrdinance, No. 1 of 1889. In this case the plaintiff does not seek to obtaina divorce. He alleges that a divorce had already been obtained. It isopen to the Court of Requests to determine whether a valid divorcesubsists between the parties. It was held in C. R. Batticaloa, 9,352—S. C. M. 21.10.1869 (Vanderstraaten’s Reports, p. 25), that there is noprovision in the Administration of Justice Ordinance which preventsthe Court of Requests entertaining such a case. The Administrationof Justice Ordinance, No. 11 of 1868, like the Courts Ordinance conferredexclusive matrimonial jurisdiction on the District Courts. In Beebe v.Pitche,1 it was held that the Court had to inquire into a matrimonialmatter in an action to enforce the provisions of section 86 of the Moham-medan Code of 1806, and that the Court of Requests had no jurisdiction.The present case is different and is governed by the ruling in the casein Vanderstraaten’s Reports.
As regards the thali, there is the allegation in the plaint that the plaintiffgave it to the defendant on the occasion of the marriage. The plaintiffstated in his evidence in cross-examination that the thali was a giftfrom him to his wife at his marriage. In re-examination he tried tomodify this by saying that the thali remained his property and was nota gift but a marriage symbol. The plaintiff called Rahiman, his brother-in-law, and also Habibu Mohamadu, the High Priest of Nawalapitiya, tosupport him. The High Priest says that the thali is not a gift but asymbol of marriage and if a divorce takes place, the thali must be returnedto the husband by the wife.
The tying of the thali is a Hindu custom which the Mohammedans ofCeylon have adopted from their Tamil-speaking brethren. Abbe Duboiswho devoted thirty years of his life to study Hindu customs, adopting their -garb, their manners, and even their prejudices, in his book entitled Hindu
i 26 N. L. R. 277.
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JAYEWARDENE A.J.—Jamaldeen v. Hajira Umma.
Manners, Customs, and Ceremonies says at page 224:—“As soon as themangalashta is finished they fasten on the thali, that is, the little goldornament which all married women wear round their necks; the thaliis strung on a little cord which is dyed yellow with saffron water, and com-posed of 108 very fine threads closely twisted together. Other littleornaments of gold are also added, round which are fastened flowers andfine black seeds. Two handfuls of rice are placed in a metal pot, on therice is placed a coconut dyed yellow, and on the top of the coconut thethali, to which they offer a sacrifice of sweet perfumes.. The thali is thentaken round to all the guests, both men and women, who touch it andbless it. Four large metal lamps each with four wicks are brought inand placed on a stand, and these and a great number of other lampsare lighted. There ensues a tremendous din, the women sing, themusicians play, bells are rung, and cymbals are clashed to drown anysounds of bad omen. In the midst of this hub-bub the husband advancestowards his young wife, who is seated facing the east, and whilereciting mantrams he fastens the thali round her neck, securing it withthree knots ”.
It may have been merely symbolic as the witnesses say, but it isnevertheless a gift from the husband to the wife and in the process oftime the thali has become a piece of jewellery of considerable value.The thali is as much a symbol as the wedding ring and it is as mucha gift.
The plaint states that the plaintiff gave the defendant a gold sove-reign necklace known as a thali. He values it at Rs. 300. In his evidencehe says “ the thali is a gift from me to my wife at my marriage ”. It isthe gift from the husband to the wife which she treasures the most. Itis always worn by her, and is her Own personal property. In the case ofwomen subject to the Ordinance No. 15 of 1876, the thali would formpart of the jewels and personal ornaments belonging to the wife undersection 11 of that Ordinance, and belong to her for her separate estateindependent of the debts of her husband.
Gifts are as a rule irrevocable in Mohammedan law but there are severalcauses that prevent revocation. The marriage relation prevents therevocation of a gift. When one of the married parties has made a giftto the other it cannot be revoked, though the marriage should afterwardsbe dissolved. Baillie’s Digest of Mohammedan Law (Part I.), p. 524,and the Hedaya, p. 486. Some doctors have considered a husband andwife in respect to their mutual gifts on the same footing as kindredby consanguinity who cannot revoke their gifts; further it wasconsidered abominable for a wife to retract a gift made to a husbandand for a husband to retract a gift made to his wife Baillie (PartII.), p. 206. According to Sir Roland Wilson a gift once validlymade must be rescinded by a civil court on the application of thedonor, unless the right of revocation is barred by certain circum-stances, one of which is that the donor is or has been the husband orthe wife of the donor. Wilson’s Anglo-Mahommedan Law, 6th Ed.,p. 34J.
Thamotherampillai v. Ramalingam.
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In Natchia v. Pitche1, two experts had been called in the lower Courtand they were both of opinion that if a man got a necklace as Kaicoolyand gave it to his wife as thali, it became the wife's separate propertyand she can claim it as her own.
In my opinion the wife is the owner of the thali even after divorce*and the plaintiff’s action therefore fails. . The judgment is set aside andthe plaintiff’s action is dismissed with costs in both Courts.
Appeal allowed.