012-SLLR-SLLR-1995-V-1-KHAN-v.-MOOMIN-AND-OTHERS.pdf
KHAN
v.
MOOMIN AND OTHERS
COURT OF APPEALISMAIL, J.
C.A. APPLICATION 777/92BOARD OF QUAZISNO. 3155/R
QUAZI COURT COLOMBO NORTHNO. 166/T
SEPTEMBER 05 AND 22, DECEMBER 06 1994.
Muslim Law of divorce – Certiorari and mandamus – Pronouncement of talak -Rules in Second Schedule of Muslim Marriage and Divorce Act, S. 27 – Is thepresence of the husband necessary for the pronouncement of the 2nd and 3rdtalaks – Procedure for Muslim divorce – Forms of talak.
Held:
In Muslim Law a husband who wishes to divorce his wife, should give notice ofhis intention to the Quazi of the wife's area, who would then attempt to reconcilethe parties with the help of elders. Thirty days after the initial notice if there is noreconciliation the husband may appear before the Quazi and utter the talak in thepresence of two witnesses. This is recorded by the Quazi and the wife notified ifshe was not present. After 30 further days if the husband was still not reconciledwith the wife he should appear again before the Quazi and have such non-reconciliation recorded. After yet another 30 days if he still persisted in hisintention to divorce his wife he would appear for the last time and have hisdivorce registerd by the Quazi.
The Rules require the presence of the husband before the Quazi on the second andthird occasions if the talak has been pronounced on the wife in her absence andher presence cannot be secured. Similarly, where the husband has failed to appearafter the pronouncement of the falak at the end of each of the two successiveperiods of 30 days, the Quazi may, at any time after the expiry of three monthsexamine the wife in regard to the failure of the husband to appear and the causesfor the failure to reconcile. The Quazi is then required to register the divorce.
There are 2 broad categories of talak. Talak ar-Raji (revocable divorce) and Talakal-Bain (irrevocable divorce). Talak ar-Raji has two forms: (1) Talak Ahsan, themost approved divorce and (2) Talak Hasan, approved divorce.
Talak Ahsan consists of a single pronouncement of divorce. When the wife's cyclefalls into what is known as the “tuhr” period, that is when she is free from hermenstrual flow, the husband pronounces a talak. He must then refrain from sexualintercourse during the Iddah period of three menstrual cycles (or, if her periodsare irregular then three lunar months). At the end of this Iddah period themarriage is terminated – the dissolution arising directly from the unilateral talakpronounced three months earlier. This form of repudiation provides an opportunityof revocation as the husband can take back his. wife during the period of thisIddah.
The Hasan form of talak is an approved method of repudiation. The procedure forthis is as follows: the husband repudiates his wife three times. The first talak takesplace during a tuhr period and he pronounces two subsequent talaks during thefollowing two tuhr periods. As soon as the husband pronounces the third talak,the talak becomes irrevocable. The talak, is raji (revocable) until the thirdpronouncement. In the Hasan form, the marriages does not come to an end untilthe pronouncement of the third talak. The wife has to observe an Iddah periodafter the third pronouncement and at this time the husband cannot revoke thedecision to divorce his wife.
The Rules in the Second Schedule prescribe a procedure for Ahsan form of talakas it has reference only to the pronouncement of a single talak rather than theHasan type of Talak.
Pronouncement of a second talak is not a requirement after the initialpronouncement. Pronouncement of talak in the presence of the wife and before 2witnesses is sufficient. Petitioner has confirmed to Rules 1 and 2 *>f the SecondSchedule and pronounced talak in the Ahsan form and two successive tuhrperiods have lapsed. Hence petitioner is entitled to have his divorce registered.
Case referred to:
1. Northumberland Compensation Appeal Tribunal Ex.P. shaw{ 1952) 1 KB 338.
APPLICATION for writs of certiorari and mandamus.
Faiz Mustapha, P.C. witi*4,. R. M. Kaleel for petitioner.Mr. Markhani with M. I. Athmlebbe for 7th respondent.Kumar Paul, S.C. as amicus curiae.
Cur. adv. vult.
February 06,1995.
ISMAIL, J.
The petitioner Mohamed Farook Khan gave notice on 7.11.90, to theQuazi (Colombo North) of his intention to pronounce the talak on hiswife, Sithy Sabira, the 7th respondent. Thereafter both the petitionerand the 7th respondent appeared before the Quazi on 15.12.90,
20.2.91 and 4.3.91. The attempts of the Quazi to effect areconciliation between them with the assistance of elders were notsuccessful. Both parties were present before the Quazi when thematter was next taken up on 2.5.91 and the petitioner pronounced the“first” talak on his wife in the presence of two witnesses.
The Quazi then fixed the case to be called on 3.6.91 for thepetitioner to pronounce the “second” talak. The petitioner was absenton that date. The 7th respondent wife who was present stated thatthe petitioner has gone abroad. The Quazi then fixed the case to becalled on 24.6.91 indicating that the application would stand
dismissed if the petitioner failed to be present that day.
»•
The petitioner was absent on 24.6.91. He was represented by hisbrother A. R. Khan to whom the petitioner had given a duly attestedspecial power of a attorney bearing No. 72 dated 27.5.91. Hetendered an affidavit affirmed to by the petitioner which containedpronouncements of the second and third talaks on his wife.
The Quazi reserved his order (P1A) and on 7.8.91 he dismissed thepetitioner’s application. He took the view that it is mandatory for thehusband to be present before him even after the initial pronouncementof the talak so that he could endeavour to effect a reconciliation, asstipulated in Rules 6 and 7 of the Second Schedule to the MuslimMarriage and Divorce Act. As such he formed the opinion that thepetitioner cannot be represented before him by another.
The Board of Quazis entertained the application filed to have theaforesaid order of the Quazi revised. Three members of the Board ofQuazis by their decision (P7) dated 16,9.92 dismissed the revisionapplication and affirmed the order of the Quazi. Another member ofthe Board also dismissed the application but only for the reason asstated in his order P9, that “there was no representation by thehusband or by the duly appointed representative to act on his behalfin these proceedings.” The dissenting order (P8) of the fifth memberof the Board, was supported by counsel for the petitioner asrepresenting the correct statement of the Muslim Law. He took theview that the Quazi (Colombo North) has erred in law and has set outhis reasons for not agreeing with the order delivered by the majorityof the members.
This is an application by the petitioner for a writ of certiorariseeking to have the order (P1A) of the Quazi (Colombo North), andthe orders (P7) and (P9) delivered by the majority of the members ofthe Board of Quazis, quashed. The petitioner has also sought a writof mandamus to direct the Quazi (Colombo North) to register thedivorce in terms of Rule 8 of the Second Schedule to the MuslimMarriage and Divorce Act.
The main submission of Counsel for petitioner is that the Quazierred in law by misconstruing the Rules, prescribed in the SecondSchedule to the Muslim Marriage and Divorce Act, relating to theprocedure to be followed in the case of a divorce by a Muslimhusband. The Quazi has fixed the case for the pronouncement of the“first” talak on 2.5.91 and after the talak was pronounced that day, heproceeded to fix another date – 3.6.91, as the date for pronouncingthe “second” talak. The Quazi has thus proceeded on the basis thatthere is a requirement in the law for the pronouncement of a secondand a third talak, whereas the requirement in the Rules prescribed inthe Second Schedule is for the pronouncement of only one talak. Itwas submitted that the Quazi acted in excess of his jurisdiction byrequiring the petitioner to pronounce more than one talak and that hehas failed to consider Rules 6 and 7 in its true perspective. Thefurther submission was made that the Board of Quazis erred in law byaffirming the unlawful order of the learned Quazi.
Section 27 of the Muslim Marriage and Divorce Act provides thatwhere a husband desires to divorce his wife the procedure laid downin the Second Schedule shall be followed. The Second Schedule setsout the Rules to be followed in the case of a divorce by a husband. Interms of these Rule^.the husband should give notice of his intention todivorce his wife to the Quazi of her area, who would then attempt toeffect a reconciliation between the husband and wife with the help ofelders. Thiry days after the initial notice, if there has been noreconciliation in the meanwhile, the husband may appear before theQuazi and utter the talak in the presence of two witnesses. This isrecorded by the Quazi and the wife notified if she was not present.Upon the lapse of a further period of thirty days, if the husband was stillnot reconciled with his wife, he should appear again before the Quaziand have such non-reconciliation recorded. After yet another thirtydays, if he still persisted in his intention to divorce his wife he wouldappear for the last time and have his divorce registerd by the Quazi.
The Rules require the presence of the husband before the Quazion the second and third occasions if the talak has been pronouncedon the wife in her absence and her presence cannot be secured.Similarly, where the husband has failed to appear after thepronouncement of the talak at the end of each of the two successiveperiods of thirty days, the Quazi may, at any time after the expiry ofthree months, examine the wife in regard to the failure of the husbandto appear and the causes for the failure to reconcile them. The Quaziis then required to register the divorce.
There are two broad categories of talak: Talak ar-Raji (revocabledivorce) and Talak al-Bain (irrevocable divorce). Talak ar-Raji has twoforms (1) Talak Ahsan, the most approved divorce and (11) TalakHasan, approved divorce – Verma’s Muslim Marriage, Maintenanceand Dissolution 2nd ed.Ch. 6.183.
Talak Ahsan consists of a single pronouncement of divorce. Whenthe wife’s cycle fails into what is known as the “tuhr” period, that iswhen she is free from her menstrual flow, the husband pronounces atalak. He must then refrain from sexual intercourse during the Iddahperiod of three menstrual cycle, (or, if she be beyond the age formenstruation, or if she has not menstruated, or if her periods are
irregular, then three lunar months). At the end o'f this Iddah period themarriage is terminated; the dissolution arising directly from theunilateral talak pronounced three months earlier. This form ofrepudiation provides an opportunity of revocation as the husbandcan take back his wife during the period of this Iddah.
The Hasan form of talak is an approved method of repudiation.The procedure is as follows: the husband repudiates his wife threetimes; the first talak takes place during a tuhr period and hepronounces two subsequent talaks during the following two tuhrperiods. As soon as the husband pronounces the third talak, the talakbecomes irrevocable. The talak is raji (revocable) until the thirdpronouncement. In the Hasan form, the marriage does not come toan end until the pronouncement of the third talak. The wife has toobserve an Iddah period after the third pronouncement and at thistime the husband cannot revoke the decision to divorce his wife.
The Rules in the Second Schedule prescribe a procedure for theAhsan form of talak as it has reference only to the pronouncement ofa single talak.
These Rules may be contrasted with the Rules which wereprescribed in the repealed Muslim Marriage and Divorce RegistrationOrdinance, No. 27 of 1929. The Second Schedule to that Ordinanceprescribed a procedure for the Hasan form of talak. The Rules 1, 3and 4 therein required the pronouncement of the "first” talak, the“second talak” and the “third and final talak” at the expiry of thirtydays reckoned from the date of each pronouncement.
The majority of the members of the Board of Quazis have referredin their order P7 to the procedure prescribed in the Second Scheduleto the Act and observed as follows: “though the learned Quazispeaks of a second talak and the affidavit of the respondent toospeaks of a second and third talak it should be stated that thepresent Muslim Marriage and Divorce Act contemplates thepronouncement of only one talak known to Muslim law as “Ahsan andthereafter the effluxion of time commences in the manner stated inthe second schedule”. (The typed order (P7) had the word “cannot"in place of the word “should" underlined above. It has beencorrected in ink to read as “should”).
The uncorrected draft of the majority of members of the Board hasapparently been considered in the dissenting order P9 as it is statedthere as follows: "The Board’s ruling: it cannot be stated that thepresent Muslim Marriage and Divorce Act contemplates thepronouncement of only one talak known to Muslim law as “Ahsan andthereafter effluxion of time commences in the manner stated in thesecond schedule. I must with respect disagree with this order for thisreason, that is, the second schedule now prescribes a procedureadapted to the Ahsan rather than the Hasan type of talak."
Although the majority decision accepted that the Ahsan form oftalak requiring the pronouncement of a single talak is now prescribedin the Rules of the Second Schedule to the Act, curiously, they havefailed to focus their attention on the legality of the procedure followedby the Quazi by requiring the petitioner to pronounce the secondtalak. The majority of the members in their orders P7 and P9 havetaken up for determination other matters but have wrongfully refusedto determine this question which they were obliged to determine. Asde Smith in Judicial Review of Administrative Action, 4th ed. page123 has stated, “A refusal to exercise jurisdiction may be conveyedby express words or by conduct. Thus, a tribunal is deemed to havedeclined jurisdiction if it fails to decide the question before it andinstead decides a different question."
However this error has been focussed upon in the dissenting orderP8 where it is stated "… the second schedule of the Act bears noreference at all to the pronouncement of a second talak. Thus theQuazi has erred in statutory law by fixing a date for thepronouncement of a second talak.”
It is clear therefore that this was an error on the face of record. Amistake of law which appears on the face of the record of theproceedings is an affront to the law which cannot be overlooked. Thecase of Northumberland Compensation Appeal Tribunal ex.p. Shaw m,concerned an alleged error of law made by the tribunal in itsassessment of periods of service in respect of which a clerk, maderedundant by the passing of the National Health Service Act 1946,was entitled to compensation. It was held that since thedetermination of the tribunal bore on its face an error of law certiorari
would issue to quash the decision. Denning LJ said in the Court ofAppeal: “It would be quite intolerable if in such a case there were nomeans of correcting the error. The authorities to which I have referredamply show that (the Court) can correct it by certiorari.”
The order of the learned Quazi which required the petitioner topronounce the second talak after the initial pronouncement, not beinga requirement of the Ahsan mode of repudiation prescribed in theSecond Schedule to the Muslim Marriage and Divorce Act,constitutes an error of law and it cannot therefore be permitted tostand. The subsequent orders made by the learned Quazi would thusbecome unlawful. The order of the Quazi P1A is therefore quashed.The orders of the Board of Quazis P7 and P9, affirming the said order,are also quashed.
The petitioner has pronounced talak on the 7th respondent on
in her presence and before two witnesses. He has thusconformed to Rules 1 and 2 of the Second Schedule and haspronounced talak in the Ahsan form. As two successive tuhr periodshave lapsed thereafter the petitioner is entitled to have the divorceregistered in terms of Rule 8 of the Second Schedule. I thereforeorder the issue of a writ of mandamus directing the Quazi (ColomboNorth) to register the divorce applied for by the petitioner.
The application is allowed. I make no order for costs.
Application allowed.