058-NLR-NLR-V-62-M.-T.-M.-JIFFRY-Petitioner-and-NONA-BINTHAN-Respondent.pdf
T. S. FERNANDO, J.—Jiffry «• Korin Binthan
265
1960Present; T. S. Fernando, J.
M.T. M. JIFFRY, Petitioner, and NONA BINTHAN,
Respondent
S. C. 263—Application in Revision in M. C. Colombo, 30980j A
Maintenance—Illegitimate children.—Muslim parents—Jurisdiction of Quazi—Muslim Marriage and Divorce Act, Ko. 13 of 1951, ss. 2, 47 (1), 48—Maintenance Ordinance {Cap. 76).
A Quazi has no jurisdiction to hear and determine an application for main-tenance in respect of children whose mother has at no time been married to thealleged father. Section 47 (1)(c) of the Muslim Marriage and Divorce
Act, No. 13of 1951, relating to “any claim for maintenance by or on behalf of achild (whether legitimate or illegitimate)” must be construed in away which doesnot detract from the force of the governing section 2 which provides that theAct “ shall apply only to the marriages and divorces, and other mattersconnected therewith, of those inhabitants of Ceylon who are Muslims
PPLIC ATI ON to revise an order of the Magistrate’s Court, Colombo.
M. S. M. Nazeem, with M. T. M. Sivardeen, for the defendant-petitioner.
Malcolm, Per era; for the applicant-respondent.
Cur. adv. vult.
September 1, 1960. T. S. Fernando, J.—
On the 29th January 1960 the applicant-respondent made anapplication in the Magistrate’s Court in terms of the Maintenance Ordin-ance (Cap. 76) claiming an order against the defendant-petitioner formaintenance in respect of her two illegitimate children aged 18 and 7months respectively. She alleged that the defendant is the father ofthese two children. It is common ground that the applicant and thedefendant are Muslims and that the applicant has at no time been marriedto the defendant.
The defendant took objection to the Magistrate entertaining the appli-cation on the ground that the Quazi appointed by the Minister for thearea in question had exclusive jurisdiction to inquire into and adjudicateupon any claim for maintenance by or on behalf of a child of Muslimparents. On his behalf reliance was placed on sections 47 (1) and 48 ofthe Muslim Marriage and Divorce Act, No. 13 of 1951. The learnedMagistrate, relying upon a statement contained in the judgment ofFernando J. in Abdul Gaffoor v. Joan Cuttilan 1, that the Ivathi Courtand the Magistrate’s Court have concurrent jurisdiction to hear and deter-mine applications for maintenance, decided that he had jur isdiction toadjudicate on the application. The proceedings before me are designedto canvass the correctness of the Magistrate’s decision in regard tojurisdiction.
1 {1956) 61 N. L. R. at 89.
256
T. S. FERNANDO, J.—Jiffry v. Nona Binthan
The relevant part of section 47 (1) and the entirety of section 48 ofAct No. 13 of 1951 are reproduced below :—
47 (1).—“ The powers of the Quazi under this Act shall include thepower to inquire into and adjudicate upon …. (c)any claim for maintenance by or on behalf of a child (whetherlegitimate or illegitimate) ; **
48. “ Subject to any special provision in that behalf containedin this Act, the jurisdiction exercisable by a Quazi undersection 47 shall be exclusive and any matter falling withinthat jurisdiction shall not be tried- or inquired into by anyother court or tribunal whatsoever.”
It was argued on behalf of the defendant that the reference in AbdulQaffoor v. Joan Cuttilan {supra) to the Quazi’s Court and the Magistrate’sCourt having concurrent jurisdiction to adjudicate on maintenance appli-cations.has been made perincuriam and that the attention of the learnedjudge who decided the case may not have been drawn to section 48 ofthe Act. The learned judge . makes no reference in the judgment toeither section, but it is clear that he was dealing with proceedings formaintenance between parties who had been married and divorced, and inrespect of those proceedings the Quazi’s Court obviously had jurisdictionwhich was the jurisdiction upheld in appeal. It appears to me thatsection 48 had the effect of making that jurisdiction exclusive and notconcurrent with that of the Magistrate’s Court, but having regard to theorder actually made on appeal the reference in the judgment to concurrentjurisdiction played no part in the ultimate decision.
Mr. Malcolm Perera, for the applicant, contended that the Quazi’sCourt had no jurisdiction at all to hear the present applicant’s appli-cation as section 2 of the Muslim Marriage and Divorce Act, No. 13 of1951, winch section governs the whole of the Act, declares that “ ThisAct shall apply only to the marriages and divorces, and other mattersconnected therewith, of those inhabitants of Ceylon who are Muslims ”.As the applicant and the defendant are not married it was not open, heargued, to invoke the jurisdiction of the Quazi under section 47 whichmust be limited to matters connected with marriage or divorce betweenthe parties. He pointed out that in Abdul Gaffoor’s case {supra) the main-tenance of the ex-wife and the child was a matter connected withthe divorce and the Quazi’s Court rightly had jurisdiction to adjudicateupon the matter of maintenance.
It is correct, as has been pointed out on behalf of the defendant, thatsection 47 confers on a Quazi power to adjudicate upon a claim for main-tenance by or on behalf of an illegitimate child as well, but this powermust be construed in a way which does not detract from the force of thegoverning section 2 which I have quoted above. It may be mentioned thatby section 1 (2) of the Muslim Marriage and Divorce Regulation Ordin-ance (Cap. 99) which also had made provision for a Kathi to adjudicate.upon claims for maintenance by or on behalf of a child (whether legitimateor illegitimate), and which was repealed by Act No. 13 of 1951, that Ordin-ance was declared applicable “ only to subjects of His Majesty professing
Gooncisekera v. De Joodlh
257
Islam ”, while the corresponding section of the existing Act reads, as Ihave shown already, that the Act ,e shall apply only to the marriages anddivorces, and other matters connected therewith, of those inhabitantsof Ceylon who are Muslims **. The change is not without significance,and whatever might have been the position if section 2 of the Act had beencouched in the same terms as section 1 (2) of the Ordinance, it is impos-sible to deny that the change in phraseology has had the effect of res-tricting the applicability of the Act. A marriage between persons who areMuslims does not have the effect of legitimating children born to thembefore marriage.—(See Ameer Ali on MahommedanLaw, 5th ed., at pages199 and 201 :—“ The Mussulman Law does not recognise the doctrine oflegitimatio per subsequens mcUrimonium ”). The legislature may well havethought of that case in enacting section 47 (1) (c) in the terms it did.Mr. Perera added another case as having possibly been in the con-templation of the legislature, viz., the case of children procreated as aresult of a void marriage. These are but two instances which indicate thatthere are certain classes of illegitimate children whose claims for main-tenance are exclusively within the jurisdiction of the Quazi for they canbe said to be matters connected with marriage within the meaning ofsection 2. Then, again, what is the position in respect of maintenancefor an illegitimate child bom to a non-Muslim woman by a Muslim father ?If section 47 (1) (c) of the Act is to be interpreted literally, without re-ference to section 2, even such a child may have to submit to the ex-clusive jurisdiction of a Quazi’s Court, I do not think that was ever theintention of the legislature.
Applications for maintenance in the case of children like those of thepresent applicant who has at no time been married to their alleged fatherare not, in my opinion, within the special Act (Act No. 13 of 1951), butfall to be prosecuted under the general statute (the MaintenanceOrdinance).
As the Magistrate’s Court has held that it has jurisdiction, I woulddismiss this application and order that the record be returned for theproceedings now to be continued in that Court. The petitioner must paythe costs of this application which I fix at Rs. 52/50.
Application dismissed..