038-NLR-NLR-V-60-M.-C.-M.-SHARIFDEEN-Appellant-and-M.-S.-M.-RAHUMA-BEEBI-Respondent.pdf
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SANSONI, J.—Sharifdeen v. 'Bahama Beebi
1958Present: Gunasekara, J., and Sansoni, J.M. C. M. SHARIFDEEN, Appellant, and M. S. M. RAHUMA BEEBI,
Respondent
S. C. 2—Board of Quazis’ Appeal 93
Muslim marriage—“ Cash dowry ”—“ Kaikuli ”—“ Stridamim ”.
In a claim made by a Muslim wife against her husband for the repayment ofkaikuli, it was proved that on a date prior to the marriago a deed of agreementwas executed by the parties and the bride’s father. In that doed (he bride’sfather undertook to convey “ as a gift absolute and irrevocable ” to tho husbandand wife certain lands as dowry in consideration of the marriage. The deedalso contained a reoital (which was not a term of the agreement) according towbioh the husband acknowledged that he had received on the previous day asum of Rs. 4,500 “ being cash dowry in consideration of the marriago ”.
Held, that the sum of Rs. 4,500 was Kaikuli and, therefore^ repajablo to thewife.
A
n PPEAL from an order made by the Board of Quazis.
Sir Lalita Bajapakse, Q.G., with A, M. Ameen and M. T. M. Sicardeen,for the respondent-appellant.
M. Bafeek, for the petitioner-respondent.
Cur. adv. vult.
September 29, 1958. Sansoni, J.—
This is an appeal from an order made by the Board of Quazis directinga husband to pay his wife a sum of Rs. 4,500.
A marriage had been arranged between these parties, and on 21stJanuary 1952 a deed of agreement was executed by both of them and thefather of the wife. By that deed the appellant (whom I shall refer to asthe husband) agreed to marry the respondent (whom I shall refer to as thewife) within eight months ; the latter’s father agreed to give his daughterin marriage within that period, and he also agreed to convey “ as a giftabsolute and irrevocable ” to the husband and the wife certain lands asdowry in consideration of that marriage. Each party further agreed topay Rs. 5,000 as liquidated damages in the event of failure to carry outany condition of the deed.
One of the recitals in the deed contains an acknowledgment by thehusband of the receipt of a sum of Rs. 4,500 “ being cash dowry paid tohim on the 20th day of January 1952 in consideration of the marriageAlthough this recital is not a term of the agreement, it helps us to decidethe true nature of this payment.
The wife applied to the Quazi Court claiming the repayment of the sumof Rs. 4,500 which she said was paid as Kaikuli. The husband, however,contended that this sum was not repayable as it was paid to him as
SANSONI, J.—Skarifdeen v. Rahuma Beebi
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Stridanum and not as Kaikoli. After hearing evidence the Quazi orderedthe husband to return the sum of Rs. 4,500 to the wife. It is not clearfrom his order what view he took as to the nature of the payment, nordoes he lay particular stress on the credibility of any of the witnesses.
The Board of Quazis in appeal rejected the argument that the paymentwas a quid pro quo for the marriage. They held that the property in themoney did not pass absolutely to the husband as it was given by thebride’s father to the husband as a marriage settlement and as Kaikuli.In the course of their order they say : “ In our view the term ‘ cashdowry ’ in the deed could be construed to be intended by the parties tomean Kaikuli. The term Kaikuli is a concept familiar to Muslims and isgenerally an incident of the marriage contract. When money is given asdowry the nature of the legal transaction corresponds to the definition ofKaikuli I am in entire agreement with the view taken by the Board andmy reasons can be set out very briefly.
At the argument before us it was not suggested that the recital in thedeed did not accurately set out the nature of the payment, and when thedeed is examined it will be seen that a clear distinction is drawn betweenthe character of the transaction relating to the lands and the paymentof the sum of Rs. 4,500. While the lands were to be conveyed as anabsolute and irrevocable gift, the money is nowhere described as a giftto the husband but merely as a sum already paid to him as cash dowry.
Further, it has been customary—and the custom has been recognisedby this Court as far back as 18711 —for the bride’s father to make apayment of a sum of money called Kaikuli to the bridegroom which isheld by the bridegroom in trust for the bride. Kaikuli has often beendescribed as dowry, so that the expression “ cash dowry in considerationof the marriage ” used in the deed is an apt description of this paymentif it was made as Kaikuli.
The recital in the deed, as I have pointed out, merely refers to this sumas having been paid to the husband. This statement is consistent withthe true character of Kaikuli, which is a marriage gift made to the brideby her father, and which is merely handed to her husband to be con-trolled and managed by him during the subsistence of the marriage—seeMeera Saibo v. Meera Saibo 2. There is no rule that such a gift cannot bemade some time before the marriage takes place. Although more thanone year elapsed in this case between the payment and the marriage, Ido not see that any objection can be raised on that ground.
The omission to describe the payment as Kaikuli, and the absence of areference to the amount of Kaikuli in the marriage certificate, thereforesignify nothing.
I would dismiss this appeal with costs.
Otjkasekaea, J.—I agree.
Appeal dismissed.
1 (1871) Vanderstraaten 162.
(1916) 2 O. W. R. 263.