Ansar v. Mina
1971Present: Samerawlckrame, J., and Weeramantry, 3.
M. H. M. ANSAR, Appellant, and FATHIMA MIKZA, RespondentS. C. Ij70—Quazi Court, 755/836110
Muslim law—Fasah divorce—Availability to wife on grounds of iU-treatment anddesertion by husband—Meaning of expression “ legal, cruelty ” same in Muslimlaw as in Roman-Dutch or English law—Proof of actual violence not necessary—. Appointment of a special Quazi to hear a particular case—Validity—MuslimMarriage and Divorce Act (Cap. 115), se. 12 (1) (2), 13, 14, 67.
The respondent-appellant and his wife, the applicant-respondent, wereMuslims. Four months after their marriage, the husband left the matrimonialhome on 16th January 1962. In the present proceedings, which commencedbefore a special. Quazi and were continued, in appeal, before the Board ofQuazis and the Supreme Court, it was established (1) that the husband'sdeparture from the matrimonial house was without reasonable cause, and(2) that the course of conduct indulged in by the hust>and was such as mademarried life altogether insupportable. Although there was no actual violence,life together was fraught with danger to the health of the wife and tended toreduce her to a. state of nervous prostration.
SAMERAWICKRAME, J.—Anzor v. Mina
The special Quazi before whom the proceedings commenced was appointedby the Judicial Service Commission under section 14 of the Muslim Marriageand Divorce Act to hoar this particular caso only. No objection was takenby the parties or by the regular Quazi as to the validity of the speoinl Quaza’sappointment and his jurisdiction to hear the case. The objection was raisedby the husband for the first time at the hearing of the appeal bcfoie the Boardof Quazia.
Held, (i) that the appointment of the spocial Quazi was validly made and thathe hod jurisdiction to hear and determine the action. Section 14 of the MuslimMarriage and Divorce Act empowers the appointment of a special Quazi notonly to deal with a class of coses but even with one particular case.
(ii) that the wife was entitled to a decree for divorce on the grounds of ill -treatment and desertion without cause. Those are grounds which in Muslimlaw would entitle a wife to a fiasah divorce, i.e., a divorce based upon thefault of the husband. By the rules of Muslim law no less than of Roman-Dutch or English law the husband’s continued course of conduct amounted tocruelty in law. Actual violence is not required to constitute “ legal cruelty
Appeal from an order of the Board of Quazia.
Ranganaihan, Q.G., with M. T. M. Sivardeen and K. Kanagaratnam,for the respondent-appellant.
77. W. Jayeioardene, Q.G., with M. S. M. Nazeem, M. Hussein andBen Eliyaiamby, for the applicant-respondent.
Cur. adv. vult.
November 10,1971. Samerawickbame, J.—
Learned counsel for the respondent-appellant submitted that theSpecial Quazi who heard this case had not been validly appointed andhad no jurisdiction to hear and determine it. No objection on thisground was taken before the Special Quazi when he commencedproceedings. The objection was raised for the first time at the hearingof the appeal before the Board of Quazis.
The Special Quazi was appointed by the Judicial Service Commissionunder section 14 of the Muslim Marriage and Divorce Act. Section 12 (1)provides for the appointment of Quazis and subsection (2) provides :—
“ Save as otherwise provided in section 13 or section 14, more thanone person shall not bo appointed to be a Quazi for the same area;and the area for which each Quazi is appointed shall be so fixed ordelimited as to avoid any intersection with or overlapping of any othersuch area. ”
8AMERAWICKRAME, J.—Ansar v. Mina
Section 13 provides for the appointment of a temporary Quazi wherethe Quazi appointed for the area is temporarily absent or incapacitated.Section 14 provides for the appointment of a special Quazi and reads :—
“ (1) Whenever there is a special necessity for tho appointment of aQuazi otherwise than under section 12 or section 13, it shall belawful for the Judicial Service Commission to appoint anymale Muslim of good character and position and of suitableattainments to be a special Quazi.
A special Quazi may be appointed under this section either
for the whole of Ceylon or for any area thereof.
In appointing a special Quazi, the Judicial Service Commission
may specify the conditions or restrictions subject to whichsuch Quazi shall perform his duties and functions under thisAct; and such Quazi shall not act otherwise than in accordancewith such conditions or restrictions.”
Learned counsel for the respondent-appellant submitted that s. 14■did not empower the Judicial Service Commission to make an ad hocappointment in respect of a particular case. The words of the provisionsare wide and enables an appointment to be made, “ whenever there isa special necessity for the appointment of a Quazi otherwise than undersection 12 or 13 ”. Section 67 expressly provides for proceedings inrespect of particular proceedings to be instituted before and heard by aspecial Quazi to be appointed under s. 14. In my view, a. 14 empowersthe appointment of a special Quazi not only to deal with a class of casesbut even with one particular case.
It was also submitted that where the facts were such as would make8. 67 applicable, it was obligatory that recourse be had to the procedureprovided for therein. Section 67 reads :—_
“ (1) Where it appears to the District Registrar, on the applicationof any party to or of any person interested in any proceedingsinstituted or to be instituted under this Act before a Quazi,that a fair and impartial inquiry cannot be had before suchQuazi, the District Registrar may order that proceedings beinstituted before and heard by a special Quazi to 'be appointedfor the purpose under section 14 and, in the event of any suchorder being made, any proceedings taken in respect of the matterto which the application relates before the first-mentionedQuazi shall be of no effect.”
The object of this provision appears to be to give a right to a party-to place before the District Registrar the grounds why a fair and impartialinquiry cannot be had before the regular Quazi and to obtain an orderwhich will take away his jurisdiction and nullify any proceedings alreadyhad before him. An appointment of a special Quazi apart from an orderof the District Registrar under B. 67 would only , empower the special■Quazi to hear the case but would not take away the jurisdiction of the24-Volume LXXV
SAMERAWICKRAME, J.—Ansar v. Mirza
regular Quazi to do bo and lie might, if he chose to do so, continue tohear the case. But where the parties and the regular Quazi are agreedthat it is not possible for the latter to hear the case or are for any reasoncontent that the special Quazi should do so, no difficulty would arise.A typical instance would be where the regular Quazi has reason not tohear the case and will be embarrassed if he has to do so.
In this matter the applicant-respondent made her application to theQuazi of Colombo South who at the date she made the application wasMr. Farooq Dorai. The respondent-appellant had an objection toMr. Farooq Dorai hearing the application. Mr. Farooq Dorai howeverrefeigned and Mr. Mohideen Cader succeeded him. Mr. Mohideen Caderwas related to the parties who were first cousins. He was also a step-brother of Shuaib Cader who was a brother-in-law of the respondent-appellant and lived in the same house. Shuaib Cader was also a witnessfor the respondent-appellant.
The particular ground on which the appointment of the special Quaziwas made by the Judicial Service Commission has not been established.In a letter to the special Quazi the Secretary of the Judicial ServiceCommission has stated that the appointment was made on the applicationof the parties. ■ There is no material to show that the respondent-appellant made any request or representation to the Commission and,if he did make any, to what effect. The applicant-respondent appearsto have taken steps to bring to the notice of the Commission the factthat the necessity for the appointment of a special Quazi had arisen.Mr. Mohideen Cader has also, in the journal entry dated 19.6.66 statedthat friends and relatives of one party had approached him on variouspoints. It is likely having regard to this circumstance that Mr. MohideenCader himself had communicated the need to the Commission thoughthere is no material on the record to show that he did bo. The gentlemanappointed as special Quazi was the regular Quazi for Colombo Northand was in every respect competent. The parties appear to have beencontent to have the case decided by him and no point in respect of thevalidity of his appointment was raised until the stage of the appealbefore the Board of Quazis.
I hold that the appointment of the special Quazi was validly madeand that he had jurisdiction to hear and determine the action. In viewof my finding it is unnecessary to consider the further submissions madeby learned counsel for the applicant-respondent based on estoppel orwaiver and the doctrine of the de facto judge.
A further point was made on behalf of the appellant that the decisionwas vitiated by irregularity. It was submitted that there had been abreach of Rule 55 of the Muslim Marriage and Divorce Regulations 1953which stated that in no case may a Quazi express or indicate to theassessors his own opinion of any question of fact. The. special Quazidelivered his order in respect of the application for a khula divorce in.the presence of ;he assessors and thereafter proceeded to obtain their
WEERAMANTRY, J.—Ansar v. Mina
views in regard to a fasah divorce. In his judgment in respect of thekhula divorce he did refer to certain evidence. I am of the view thatthere was no contravention of regulation 55 and that even if therewas a contravention, the irregularity was not substantial and in noway vitiated the decision.
I agree with the finding arrived at by Weeramantry J., that upon aconsideration of all the circumstances the conduct of the appellant wassuch as to make married life insupportable and amounted to cruelty.The applicant-respondent was therefore entitled to a fasah divorce.I accordingly agree .with the order made by Weeramantry J., confirmingthe judgment of the Board awarding the wife a fasah divorce anddismissing the appeal with costs.
WBEBAAf ANTRY, J.—
The proceedings from which this appeal is taken commenced with anapplication to the Quazi Court by the wife, who is the respondent in theappeal, for a divorce on the ground of (1) ill-treatment,. (2) desertionwithout cause, (3) failure to maintain, and (4) failure to perform maritalobligations without cause.,
The trial took place before a Special Quazi and the respondent proceededonly upon the first two bases namely ill-treatment and desertion. Theseare grounds which in Muslim law would entitle a wife to a fasah divorce,'that is a divorce based upon the fault of the husband.
The learned Special Quazi, despite every effort at a reconciliation,as was his duty under the Muslim law, was unable to bring the partiestogether. At more than one stage the respondent, when asked , whethershe was prepared to be reconciled to her husband, stated consistentlythat her position was that a reconciliation was out of the question,and that she would under no circumstances resume life with the appellantfor whom, in consequence of his conduct, she had conceived an intense■dislike.
On the first day of the proceedings before the Special Quazi the wifestated however that she was also seeking a khula divorce, that is, adivorce in respect of which it is not essential to prove fault, but whereinthe allegation is that the parties are unable to live together as husbandand wife “ within the limits of God”. The wife’s contention was thatshe was entitled to such a divorce by decree of the Court and that adecree could be so granted despite the opposition of the husband; andindependently of hiB consent.
The learned Special Quazi held with the wife on the question of ill–treatment , and held also that he had left the matrimonial home withoutgood cause on 16th January 1962. However he held that his failureto return up to 22nd January 1962, when he was informed that his wife
WEERAMANTRY, J.—Ansar v. Mirza
desired a divorce, did not constitute desertion in law. He awardedthe wife a faBah divorce on the ground of cruelty and also indicated thatBhe was entitled in law to a khula divorce as well.
Upon the appeal of the husband to the Board of Quazis the Boardnot only upheld the Special Quazi’s findings on cruelty but also heldthat the appellant was guilty of desertion in law. The Board further,while upholding the Special Quazi’s findings in relation to a fasah divorce,reversed his findings in regard to the availability of a khula divorce.
It is against thiB background that two appeals have come before thisCourt, the first by the husband against the decision awarding a fasahdivorce to the wife and the second by the wife against the decision thatBhe is not entitled in law to a khula divorce. The present judgmentdeals with the first of these appeals.
There has been an argument before us on the question of the validityof the appointment of the Special Quazi and the questions of law involvedin that argument are dealt with in the judgment of my brotherSamerawickrame. I agree with his finding that the appointment of theSpecial Quazi was validly made and it is upon that basiB that the presentjudgment proceeds. I would content myBelf with observing that theparties submitted to the jurisdiction of this Special Quazi and in thepresent case it is my view, subject to any rights they may have by wayof appeal, that they are bound by the order of the learned SpecialQuazi.
Passing now to the facts, it should be noted at the outset that theparties to this marriage are first cousins, in that the husband’s motheris the sister of Dr. Sulaiman, the wife’s father. The parties were marriedon 14th September 1961 and lived as husband and wife until theappellant’s departure from the matrimonial home on the morning of16th January 1962.
The matrimonial home of the parties during the four months theylived together was the house occupied by the parents of the respondent,Dr. and Mrs. Sulaiman. It was in evidence that among members of theMuslim community it is customary after marriage for the young coupleto take up residence in the home of the wife’s parents until the birthof the first child and there was therefore nothing unusual in thearrangement that the new couple were to live initially with the bride’sparents. Moreover that was the accepted and agreed matrimonialhome of the parties in which the appellant, without any expression ofreluctance, took up residence after marriage.
It may be observed also that the house occupied by Dr. and Mrs.Sulaiman in fact belonged to the bride, as it had been gifted to her byher father some time prior to the marriage. It would appear that thefather, Dr. Sulaiman, used to pay to his daughter a sum of Rs. 600 permonth as rent for these premises. He had also transferred to her aproperty in Main Street bringing a rental of Rs. 800 per month and itwas his practice to bring this rent totalling Rs. 1,400 into the room
WEERAMANTRY, J.—Ansar v. Mind
occupied by the couple and hand it over to the husband, saying it washis wife’s rental for the month. This rental has been one of the principalcauses of displeasure between the parties as it was the wife’s contentionthat her husband desired to have control of this money.
The witnesses called for the respondent at the hearing before theSpecial Quazi were her father Dr. Sulaiman and Mr. A. H. M. Ismail,an advocate of the Supreme Court who formerly, held judicial officeand is a respected member of the Muslim community. She also gaveevidence on her own behalf.
For the appellant, apart from his own evidence there was the evidenceof his father, Mr. C. L. M. M. Saleem.
The wife’s position was that on the very night of the wedding herhusband told her that he had not wanted to marry her but had done soonly to please his parents. She complained of unhappiness from thevery commencement of her marriage and of her movements beingrestricted unreasonably. For example her husband used to object toher attending parties at the houses of her relatives and would practicallykeep her confined to her room. He abused and insulted her parentsand on occasions when there were visitors she was not even allowed outof her room. The appellant used to go to work daily and return homearound 7 p.m. having first visited his mother after work at 5.30 pan.The respondent used to be taken for drives only to the house of theappellant’s parents and it was only on one occasion after marriage thatthey went to Galle Face for a drive.
One incident in particular stands out for special mention. Dr. Sulaimanhad in accordance with his usual practice bought tickets for the annualMedical dance in 1961. It is in evidence that Dr. Sulaiman. books atable for this dance to which he takes the doctors who are employedby him at his nursing home, and on this occasion he had bought twotickets for the young couple and invited them to attend. The appellant,stating that he objected to any participation in functions of this sort,refused to attend after the tickets had been bought. Consequently,the respondent went there along with her father and at this table theonly empty place was that of the appellant. So shortly after the marriage,when all the doctors employed under the respondent’s father would nodoubt have been anxious to meet the young couple, this was certainlyan incident that must have caused much pain of mind to the respondentand to.her parents.
The respondent’s position was that all this harassment and ill-treatment were attributable to the complete domination of the appellantby his father and the desire of the appellant to gain control over hermoney. The rental paid by her father on 10th November 1961 had notbeen given to her by her husband and when she asked for it he had toldher that she had no right to touch his cupboard. In consequence therespondent requested her father to pay the money due to her and thinwas done in the months of December and January.
WEERAMANTRY, J.—Ansar v. Mina
The final episode in their life together occurred on the night of 16thJanuary 1962, and was a sequel to an argument over money mattersarising from the non-payment to him of the January rental. Therespondent states that her husband had wanted her to wake her fatherat 2 a.m. and to bring him to his room to face the ordeal of beingquestioned about money matters. She refused to fetch him saying thather husband could speak to him in the morning without disturbing herall night. On the 16th morning the appellant left the house without aword to her and never returned. He never communicated with herpersonally, he sent her no letters and made no attempts to come home.
The wife has summarised the effect upon her of her husband’s unreason-able and harsh conduct in the terms that he continually “bullied” herover money matters, abused her and her parents, wanted to control everyact of hers, and eventually “ reduced me to a state of nervousness andharassment ”.
The wife’s father, Dr. Sulaiman, confirmed her version of unhappinessfrom the commencement of married life and of the unreasonable attitudeof the respondent on money matters. He describes how “ she becamedaily more unhappy and her gay and jovial life had almost come to anend. I did not want to ask her any reasons, which were quite apparentlooking at her face ”.
This is indeed an eloquent description of the manner in which a happyyoung girl was transformed in the short space of a few weeks into oneweighed down by harassment and restrictions to a state of sorrow andnervousness.
Dr. Sulaiman referred to the appellant’s conduct in relation to theMedical Dance, his refusal to attend a motor rally at Batmalana heldon one of their estates although all the other members of the familycustomarily attend that rally and the couple had been given a month’snotice of it, his refusal to come down to breakfast when a well-wisherhad come all the way from Eravur to greet the young couple, and otherincidents of this nature which, if proved, constitute clear indications ofconduct most unreasonable on the part of a husband so shortly aftermarriage.
Dr. Sulaiman also recounted how the appellant did not come downto meals with the other members of the family but required his "wife tocarry his meals upstairs and that he required this to be done even whenher ankle was sprained and she had to limp up the stairs.
All this evidence, if correct, shows that a situation was slowly buildingup in which life together was becoming intolerable to the wife.
Finally on 16th January 1902 the respondent left home earlier than•usual. To Dr. Sulaiman’s inquiry as to why he was leaving so earlythat morning he replied that he had to reach his work place in time toobtain parking space for his car as the Police was stopping the incomingtraffic into the Fort in consequence of the arrival of a State visitor.
WEERAMANTRY, J.—Ansar v. Mina
The respondent did not return that night and the household stayed uptill 11 p.m. awaiting his arrival. Dr. Sulaiman himself waited for himtill la.m. but he did not return. The following morning he and his wifeconsequently decided to visit the appellant’s home to make inquiries,but his daughter insisted that before he proceeded he must hear her.Her version was that on the 15th night her husband had harassed herasking her to give him his money and to submit accounts in respect ofthe moneys she spent. He also wanted her to wake her father at a latehour of the night and ask him to come to his son-in-law’s room. Shewas very annoyed at this conduct and pleaded with her father not to setout to fetch her husband as he had left of his own accord. If he in factwanted to return she said he would come on his own. La consequenceof the respondent’s request Dr. Sulaiman did not go over to the residenceof the appellant’s father.
The evidence of Dr. Sulaiman regarding his daughter’s complaints tohim and in particular her prompt complaint on the 17th morning regardingthe happenings of the 15th night, lend strong support to her own versionof these matters.
The appellant’s version briefly was that, the marriage being one betweenfirst cousins, financial questions did not loom large in it and that in factthere was no question of any monetary matters or dowry ever beingdiscussed. He stated that during his stay at No. 63, Green Path, hecaused household provisions and a bag of rice to be supplied monthlyand also a sum of Rs. 200 to be paid to the respondent for her expenses.He continued to pay this sum monthly even after he left.
TTia position was that during his absence his wife used to go out shoppingand to sundry places both with and without her mother and that henever raised objections to this. He accompanied his wife almost dailyon a drive to Galle Face and also took her to the cinema and attendedfunctions with her and visited relations. He denied the allegation thathe kept her confined in the house. He stated further that her relationspaid almost daily visits to No. 63, Green Path, so that his wife had ampleopportunities of keeping in contact with them, whereas his own relationslived some distance away.
His position was that his mother-in-law, who occupied the bedroomadjoining that of the young couple, used to interfere with their marriedlife and he actually complained that in consequence of inquisitivenesson her part to observe their, conduct, their privacy was also interferedwith.
In regard to attending ballroom dances, his position was that suchattendance did not accord with his religious principles and that despitehis wishes in the matter his wife attended the Medical Dance to pleaseher parents. His view was that ballroom dancing goes on to the earlyhours of the morning and interferes with married life.
WEERAMANTRY, J.—Ansar v. Mina
His contention was that from the commencement it was the intentionof dissatisfied relations to wreck the marriage, and among the persons soill-disposed were his maternal uncle, Mr. U. L. M. Mohideen Hadjiar,Mr. Advocate A. H. M. Ismail and others. He denied that there was anydispute between himself and his wife on any money matters and affirmedthat the causes of quarrels were only his wife’s desire to attend dances,and liquor parties.
Seeing that interference with their married fife by his mother-in-lawwas not conducive to harmony he suggested to his wife that they liveseparately, and this request was frequently made, but his wife did notaccede to his wish and he finally left on 16th January 1962 when his wifetold him that his mother-in-law was trying to organise another danceafter a relation’s birthday party. He therefore left No. 63, Green Path,and went to his father’s house leaving behind all his belongings. Animportant part of his case was that in spite of his parting he continuedto write letters to his wife and sent remittances for her maintenance. Hepersonally posted these letters and kept carbon copies after the first twoletters. He produced all these carbon copies marked B90 to 137, that isfor the period February 1962 to August 1966. These letters were allreturned unopened and were opened in Court.
It was also his position that on several occasions he attempted to speakto his wife on the telephone and that- his mother also telephoned hisfather-in-law on several occasions. Dr. Sulaiman promised to meet hismother but failed to do so.
He categorically denied that he ever wanted to control her money orincome or that he abused her or her parents or prevented her from mixingwith members of either his or her family.
As between the respective versions of the parties both the SpecialQuazi and the Board of Quazis appear to have had little difficulty inrejecting the version of the appellant and in preferring that of therespondent. On all material points regarding the incidents referred tothey have accepted the evidence of the respondent and of her fatherDr. Sulaiman. With this view of the facts I am in complete agreement.
In regard to the complaint that his wife was fond of attending dancesand liquor parties, it is rather difficult to understand the reference toliquor when there was not the slightest suggestion that she or any of themembers of her party indulged in liquor; and in fact throughout the•cross-examination of the wife the suggestion was not made to her thatshe was fond of attending liquor parties. One finds it difficult to•understand whether the alleged objection of the appellant was to thefact that dancing was indulged in or that liquor was consumed at theseparties. If he had in fact a serious objection to his wife attending partieson the ground that at any of those she or members of the party hadconsumed liquor, one would expect that that position would have beenclearly stated by him and put to her at the stage at which she was givingevidence. It seems to us that the question of liquor has merely been
WEERAMANTRY, J.—Anvar v. Mina
dragged in to make her attendance at the Medical Dance appear in anoffensive light, when in fact her attendance in the company of her fatherand all her father’s staff at a function which has come to be looked uponas a well-known get-together of the Medical profession, seems to be quiteinoffensive and innocuous and one to which no objection could reasonablybe taken.
That would be the view we would be inclined to take ordinarily butwe are strengthened in this, view by the findings of the Board of Quaziswho being themselves leading members of the Muslim community haveexpressed the view that they see nothing objectionable in attendance atsuch a dance as customs change and it becomes necessary to adapt oneselfto the changing customs of the time. In any event there has not beenthe slightest suggestion savouring of impropriety of any descriptionwhatsoever in the attendance of the wife at the Medical Dance. Indeedwhen specifically questioned as to whether his wife takes liquor when shegoes to parties the appellant answered in the negative. We see nosubstantiation of any sort of the appellant’s contention that attendingsuch a function is against the teaching of Islam.
The general unreasonable attitude of the appellant can indeed be gaugedfrom the manner of his cross-examination of the respondent. Forexample, in regard to the Medical Dance he asked the question :—“ Soyou go to such parties where there are various communities present.”
There is quite clearly in this question the implication that hedisapproved of his wife even attending such social gatherings where othercommunities are present and if this was his general attitude it seems quitemanifest that his attitude towards the movements of his wife was analtogether unreasonable one.
Before concluding this discussion of the questions of fact involved, Iwould only wish to deal with the rather curious conduct of the plaintiffin regard to the correspondence he addressed to his wife after heleft her.
I would refer firstly to the letter R88 of 17th January 1962, whereinhe states that he had left the previous day because it was not possiblefor him to be in -that house with the plaintiff’s mother interfering at manytimes in their personal affairs. He goes on to state that ho begs of herto live separately from the parents of both parties, if they are to be happilymarried. The letter requests the wife to contact the' writer over thetelephone and to make arrangements to come and live with himseparately. This letter begins with the statement that he had triedmany times to contact his wife on the phone but had been told that shewas not in.•
The receipt of letter R88 is denied! The next we have in the series ofletters is R89 of 20th January 1962 referring to the letter of 17th January,and stating that it was not possible to go on like this. This letterrequested the recipient to write a short note indicating that she was
WEERAMANTRY, J.—Ansar v. Uirza
willing to come, in which event the writer would call and take her away.It also speaks of sending her a cheque for her monthly expenses in a fewdays’ time.
R90 is dated 22nd February 1962 and states that “ as promised in myprevious letter ” he is sending her a sum of Rs. 1,000 being the usualmonthly allowance of Rs. 200 and a further sum of Rs. 800 for festivalexpenses.
R91 of March 1962 forwards a cheque for Rs. 200 and begins astereotyped series of letters which followed month after month statingthat the cheque for Rs. 200 was being enclosed and that the writer wasstill hoping that “ our parents and elders will look into our matter andbring about a settlement to enable us to resume our normal relationship ”.These letters are all addressed “ My dear Mirza ” and end “ with kindregards, yours affectionately”.
These are scarcely the letters one would expect from a husband whostill retained, as he claimed he did, an affection for his wife. They savourrather of routine business correspondence and seem totally devoidof the affection one would expect even in the strained circumstances thatnow prevailed. This abnormal correspondence was continued monthafter month and each one of these letters was returned unopened by thewife.
It is to be remarked also that carbon copies have apparently beenpreserved of these letters, thus pointing again to the conclusion that theywere written more or less in the manner of business correspondence.
There is moreover a strong suspicion that the appellant has beendishonest in the matter of this correspondence for there are cogent reasonsfor a belief that there has been a tampering with the date of the letter R90(also marked R5) in order to build up a case for the appellant.
The letter R90 of 22nd February 1962 (also marked R6) is a letterenclosing a cheque for Rs. 1,000, and much significance attached to thequestion whether this letter was sent by the appellant subsequent to ameeting with Mr. Ismail. The significance of the date lay in the factthat Mr. Ismail had according to his evidence and according to the entriesin his diary of 22nd and 23rd February 1962 informed the appellant thatthe respondent was determined to seek a divorce. Consequently if R90was written prior to the meetings with Mr. Ismail it would have been aletter written without knowledge of the determination of the respondentto seek a divorce. If on the other hand it had been written after themeetings with Mr. Ismail it was written with knowledge of herdetermination but in pursuance of a pretence that he was not soaware.
In R90 as if innocent of all knowledge that matters had reached thisstage, the appellant regrets that he had received no replies or telephonecalls to his earlier letters. He proceeds to state that he is sending her
WEEK AMAH 'l'K Y, J.—Ansar v. Mirza
money for festival expenses and monthly expenses as though theknowledge that divorce was contemplated by her was furthest from hismind.
In these circumstances the suggestion was made that R90 wa3 not infact written on 22nd February (a date which would ante-date the meetingswith Mr. Ismail) but on 24th February and that the appellant haddeliberately ante-dated it to the 22nd of February, so as to make it appearthat it was written before the meetings with Mr. Ismail.
There is much support for this suggestion from more than onecircumstance. The letter appears to have been posted on the 24th andthe appellant was questioned as to why the letter written on 22ndFebruary should have been posted on the 24th. The explanation he gave,namely that the 22nd may have been a Saturday, was found on verificationto bo incorrect, for it was a Thursday and the 23rd a Friday.
Furthermore, as the learned Quazi observes, a close scrutiny of thecounterfoil of the enclosed cheque (which is a cheque drawn by the fatherfor Rs. 1,000) shows that it was originally dated the 24th, and that, in thefigure representing the date, the 2nd digit has been altered from 4 to 2.This again would seem to suggest that the letter and the cheque weremade out on the 24th.
When the appellant’s attention was drawn to this discrepancy indates he went through the relevant postal article receipt and eventuallyadmitted that the letter was sent on the 24th.
This brings ine to important aspects of this case concerning the diaryentries of Mr. Ismail which reflect the interviews ho had in this connectionwith the representatives of both parties. The suggestion was rashlymade by the appellant that these diary entries were fabricated.
I shall deal first with the entries relevant to the date of the letterR90.
The diary entries in question are those relating to February 22nd andFebruary 23rd, and if these entries are correct it is easy to see that theappellant’s attempt to make out that R90 was sent on the 22nd ofFebruary and not on the 24th is a dishonest attempt to conceal the factthat he clearly knew by the time he wrote this letter that his wife hadmade up her mind to seek a divorce.
A4, Mr. Ismail’s diary entry on February 22nd reads as follows:—
“ C. L. M. M. Saleem rind Ansar came to our place with a type-written letter at about 7.30 p.m. embodying the draft prepared lastSunday the 18th instant. I told them hot to send the letter as mattershave changed since I last spoke to them. I told them I have no timeto discuss this in detail; but that I would meet them and Sithy Ayshaat their home tomorrow at 2.30 p.m. However I told them the gistof the decision arrived at Dr. Sulaiman’s place yesterday namely thatMirza desires a Divorce as the Marriage had failed and that she cannothave a happy and compatible married life with Ansar in future.”
WEERAMANTRY, J.—Ansar v. Mirza
A5, the entry for February 23rd makes it even clearer that the-respondent’s state of mind had been communicated by Mr. Ismail tothe appellant’s representatives. It reads as follows :—
*“ I discussed Ansar’s marriage matter with his parents Mr. & MrsC. L. M. Saleem and Shuaib Cader at their residence at PendennisAvenue from 2 p.m. till 5 p.m. I told them that Mirza desires to havea Divorce from her husband Ansar as she cannot lead a happy life-with him. Ansar’s reply was that he cannot grant a Divorce as thereis no valid reason for such a course. He wants the elders to interveneand settle matters amicably and allow both him and his wife to livehappily after settling the money matters satisfactorily. I told themthat it is not possible to settle this matter as the wife’s mind is finallymade up and that she considers the marriage ill-suited and incompatibleas her experience of four months’ married life with Ansar from September1961 till 15th January, 1962. I asked them to consider the requestof the wife, take time over it, and decide without causing bitternessand hardening of feelings.”
It became abundantly clear then that the letter R90 was sent outwith knowledge of the respondent’s state of mind and so as, by its date,to counter possible evidence that by that date the respondent had madeit clear to Mr. Ismail that a reconciliation was out of the question.
The anxiety of the appellant to discredit Mr. Ismail’s diary entriesthus becomes easy to understand.
On a consideration of these matters we feel that the learned Quaziwas perfectly correct in rejecting the lettersR88 and R89 and in holdingthem to have been ante-dated. It is significant that in none of the lettersthat have been produced except for R88 and R89 is there any indicationby the appellant of an intention to live with her in a separate house.
Upon the learned Quazi’s findings it would follow that the appellanthas not only been cruel to the respondent and unreasonable in the matterof his desertion but also that he has been prepared to go the length ofbolstering up his case by letters which, as the learned Quazi observes,do not reflect the true state of affairs between the parties.
Upon a review of the totality of the evidence in this case there seemsthen to be clear proof of a course of conduct so altogether unreasonablethat married life became impossible. There is clear proof also of desertionby the appellant without cause.
Thenumerous incidents indicating irresponsibility and unreasonablenessamply substantiate the findings arrived at both by the learned SpecialQuazi and by the Board of Quazis. For instance the readiness withwhich the appellant was prepared to cast aspersions on Air. Ismail,bespeaks an irresponsibility of outlook which is of a piece with theirresponsibility displayed by the appellant throughout his short marriedlife.
WEERAMANTRY, J.—Ansar v. Mina
It is important to note that the diaries of Mr. Ismail emerged only ata stage when the appellant was putting it to Mr. Ismail that neither theappellant nor his representatives had ever sought Mr. Ismail’s advice onany occasion regarding this matter. It was at that stage that Mr. Ismailwhile rc-affirming that his advice had been sought on more thanone occasion said that he could prove the matter definitely by the diarywhich he had kept. These diary entries such as Al, A2 and A3 indicatelong discussions at Mr. Ismail’s house on 11th February, 12th Februaryand 18th February and attempts to seek his assistance in drafting aletter to be sent to the respondent. Some of these discussions accordingto the diary have lasted for hours.
Even if the diary entries had not been there to support Mr. Ismail,Mr. Ismail’s evidence is evidence which would unhesitatingly commandthe acceptance of a court unless strong reasons existed for its rejection.None which are worthy of any consideration have been suggested.
When Mr. Ismail stated in his evidence quite categorically that hehad been so consulted the attempt to contradict him flatly was onewhich by itself was serious enough. When Mr. Ismail produced in supportof his statements diary entries which completely confirmed his version,it seems exceedingly rash for the appellant to have suggested that aperson of Mr. Ismail’s position and background had gone to the lengthof fabricating a series of diary entries in order to pay off an ancient grudge.Such a suggestion is not one which a person with any sense of responsibilitywould lightly make. Mr. Ismail has contradicted this allegation onoath and there is nothing before us of the strong and compelling naturea court would require before it even entertains the suggestion that theentries in the diary are other than perfectly genuine ones.
Again in the cross-examination of Dr. Sulaiman, the appellant, inorder to establish a minor point regarding the illness of a relation,summoned Dr. Sulaiman to produce all. the books of the GrandpasflMaternity Home. The respondent quite rightly objected that the booksof the Nursing Home had nothing to do with the case and that thiswas merely an attempt to harass her and prolong the case. Dr. Sulaimanpointed out that the Nursing Home was a very big organisation employingover fifteen doctors and stated that he objected to tho appellant havinga look at his books. The learned Quazi upheld these objections, andrefused the appellant’s application, observing that the fact that a patienthad been treated in that hospital had no bearing upon the facts in issue.I refer to this as another instance indicative of the general attitude ofirresponsibility of the appellant in the conduct of his case. It seemedquite clear that the application was one made not with a view to assistingthe court but with a view to embarrassing the respondent.
This is of a piece also with the reckless allegation that his mother-in-law from her adjoining room would constantly peep into their bedroomand disturb their privacy.
WEERAMANTKY, J.—Ansar v. Mina
Statements of this nature show that the appellant, to gain his endsand show his wife and her relations in an unfavourable light, is preparedto make allegations with little regard to reality or plausibility.
This sort of conduct and this attitude of mind were not in any wayconducive to matrimonial harmony. For these and other reasons thelearned Special Quazi has observed that after a careful considerationof the evidence of the appellant he is compelled to reject it as untrue.These findings of the learned Special Quazi have not only been acceptedby the Board of Quazis, but the latter have expressly stated that theyare of the view that the learned Quazi came to the correct conclusionwhen he stated that the appellant’s conduct amounts to cruelty.
We would associate ourselves with the condemnation of the appellant’sconduct by the learned Special Quazi and the Board of Quazis and holdhis conduct to be so altogether harsh and unreasonable, as to constitutecruelty. As pointed out by the Board, questions of credibility areheavily involved in this case and no adequate reason has been adducedfor any interference with the findings of the Special Quazi. Co-ordinatefindings of fact by the Speciai Quazi and the Board of Quazis this Courtwould require the strongest circumstances to disturb. None such havebeen made out by the respondent and in our view no reason whateverexists for any such interference by us.
We agree also with the findings of both courts below that the appellant’sdeparture from the matrimonial house on 16th January 1962 was withoutcause and we agree with the findings of the Board that in the circumstancesof this case hiB conduct amounts to desertion in law.
It is not necessary for the purpose of the present judgment to enterupon an elaborate discussion of what constitutes “ cruelty ” under theMuslim law. It seems sufficiently clear that actual violence is notrequired in order to constitute “ legal cruelty ” whether under Englishlaw or under Muslim law. In Buzrul Rahim's case1 the Privy Councilobserved that “ the Muhammadan law on the question of what is legalcruelty between man and wife would probably not differ materially fromour own.”
As Sir Rowland Wilson observes 8: “ Since Lord Stowell’s time ithaB been made clear in England that a course of unkind treatment maybe cruelty in the legal sense though keeping clear of actual violence ifit tends to endanger the wife’s health….” and proceeds to observethat so far as Muhammadan law is concerned actual violence is now notnecessary but that “ legal cruelty ” will be sufficient.
I have no doubt upon a consideration of all the circumstances in thepresent case that the course of conduct indulged in by the appellantwas such as made married life altogether insupportable. Life togetherwas fraught with danger to the health of the respondent, and tended to
1 11 Moore Indian Appeals 651.* 6th ed„ p. 166.
Mima v. Ansar
reduce her to a state of nervous prostration. Such a continued courseof conduct by the rules of Muslim law no less than of Roman-Dutchor English amounts to cruelty in law.
There ib no question but that a fasah divorce would be available to awife in the circumstances I have set out.
I would accordingly confirm the judgment of the Board awarding thewife a fasah divorce and dismiss this appeal with costs.
M. H. M. ANSAR, Appellant, and FATIMA MIRZA, Respondent