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Preterit: Mr- Justice Wendt-MAMMADU NACHCHI v. MAMMATU KASSIM.
P. C., Jaffna, 45,580.
Maintenance—Muhammadan parties—Keeping concubine in thehouse—
“ Living in adultery ”—Ordinance No. IS of 1889.
Wendt J.—The mere factof a married Muhammadan man
keeping an unmarried Muhammadan woman as his mistress is notgood reason in law for bis wife refusing to live with him and claim-ing separate maintenance. But the husband has no right to ask thewife to come and live in the concubine’s house.
It is improper to address an; communication to the SupremeCourt about a pending case.
PPEAL by the applicant (wife) from a judgment of the PoliceMagistrate of Jaffna refusing to order her husband to make
an allowance to her by way of maintenance. The facts sufficientlyappear in the judgment.
Bawa (with him .4kbar), for the complainant, appellant.
No appearance for the respondent.
Cur. adv. vult.
September 19, 1908. Wendt J.—
This is an appeal by a Muhammadan wife against the refusal ofthe Magistrate to order her husband, who is also a Muhammadan, tomake her an allowance by way of maintenance. The application wason behalf both of the wife and her child, and in respect of the latteran order of maintenance has been made, against which no appeal hasbeen presented. At the hearing of the application the defendantoffered to maintain his wife on condition of her living with him, whichshe refused to do on the ground that- he was “ living in adultery.”The Magistrate based his refusal of maintenance in respect of thewife on his finding that the respondent was not living in adultery;and the question submitted to me upon this appeal is whether thatfinding was right, not that such finding necessarily concludes thematter, for the words of the Ordinance are that the Magistrate“ may ” make an order, not that he “ shall.”
The Magistrate finds that the defendant for the last four years iskeeping in his house an unmarried Muhammadan woman namedNeina Umma, to whom he says he is married. The Magistrate holdsthe marriage not proved; but, inasmuch as section 101 of theMuhammadan ‘‘ Special Laws ” of 1606 entitles .the defendant to
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IMS. keep, besides his lawful wife, “ as many concubines as he is able toSqtUiHborlS.» jj6 holds that the appellant is not justified in refusing
Wehbt J. to live with the defendant, and therefore declines to order hermaintenance.
Appellant’s counsel contended that in order to be a lawful “ con-cubine ” a woman must be the slave of a man (Nell, p. 45 ; Hamil-ton’s Hedaya, 2nd edition, p. 182, definition of “ Zinna ”, Ameer AH,vol. 11., p. 269: Sale’s Koran, chapter IV.), and that as slaverywas no longer lawful in Ceylon, a Muhammadan could not lawfullyhave a concubine in addition to his lawful wife. What .the writersquoted say is no doubt true of a Moslem country, but it is certainlynot true of British India to-day; and in the absence of any vestige-of judicial or other authority for so holding, since slavery wasabolished here in 1844, I am not prepared to decide that it is truein Ceylon. Our Maintenance Ordinance (No. 19 of 1889) on thispoint is substantially a re-enactment of section 488 of the IndianCriminal Procedure Code of 1882. Owing to the circumstance thatthe Indian enactment as to maintenance occurred in that Code, theMadras High Court in 1893 held that the term “ adultery ” must begiven the meaning defined in the Penal Code, and that consequentlyit could only be committed by a man, and then only with a marriedwoman; but in 1896 this view was over-ruled by a bench of fourJudges of the same Court, who held (Gantapalli Appalamma v.Gantapalli Yellayya1) that the term was used in the popular sense ofa breach of the matrimonial tie by either party- “ A difficulty mustalways arise,” said Collin C.J., “ in deciding in what cases the adulteryof the husband is sufficient cause for the wife to claim maintenance.Amongst the Hindu community concubinage is recognized, and it ispossible for concubines to have a certain status. If, therefore, ahusband keeps a concubine in a house apart from his wife, it isdoubtful whether such an act alone would entitle the wife to sepa-rate maintenance; but if he keeps such concubine in the same houseas his wife lived in and against her wishes, or in such a manner as tooffend the self-respect of his wife, in my opinion that would entitlethe wife to separate maintenance under section 488. ” The otherJudges expressed themselves in the same sense, Shepherd J. saying,” conduct of this sort, which according to Western notions wouldbe condemned as a breach of the marital obligation, is not socondemned either by Hindus or by Muhammadans. .. I cannot
conceive that it was intended to apply the term ‘ adultery ’ to conductconsidered by the community to which the parties belong as innocentfrom a matrimonial point of view. ” (The Indian Criminal ProcedureCode has since been amended in 1898 by the substitution of thewords ‘‘if he is satisfied that, there is just ground for so doing ”for the words ‘‘if he is satisfied that such person is living inadultery,” &c.)
11. L. Tt. 20, Madras 410.
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Sir Boland Wilson thus sums up the existing law of India (Anglo -Muhammadan Law, 2nd edition, 158): '* The husband does not (inBritish India) incur any legal penally, criminal or civil, by failing toobserve conjugal fidelity, except that the keeping of an idol-worship-ping concubine in the same house with the wife may (perhaps) beregarded as so serious an outrage on her religious feelings as toconstitute ‘ cruelty ’ iu the legal sense of the term, which wouldjustify the wife in refusing to live with him and give her a claim tomaintenance, notwithstanding such refusal. ” He adds in a note thatthe High Court of Calcutta took this view of the converse case of aHindu husband forcing the company of a Muhammadan concubineon his wife, but that it would clearly not be open to a Muhammadanwife to set up this plea if the concubine were a Christian or a Jewess.Considering the analogy ^of the circumstances of Ceylon to thoseprevailing in British India, I see no objection to applying this lawhere. I hold .that the mere fact of a married Muhammadan mankeeping an unmarried Muhammadan woman as his mistress in thehouse is not good reason in law for his wife refusing to live withhim and claiming separate maintenance.
It stands to reason, however, that the offer by a husband to main-tain his wife if she will come and live with him must be an offer tomaintain her with the dignity and consideration which befits a wife.
1 see no proof of such an offer here. In fact, the respondent’s invita-tion to his wife appears to be to come and live in his mistress NeinaUmma’s house. He has no house of his own, and is living in a housewhich Neina Umma has taken on mortgage with her own money. Ido not think that the appellant is bound to go and live there, and Itherefore consider that respondent’s offer is not such as is contem-plated by section 4 of the Ordinance.
I set aside the order appealed against, and order the respondent topay maintenance for his wife, as well as for his child. The amountin respect of the wife and the time of payment will be fixed by theMagistrate.
A large number of persons, describing themselves as Muhammadaninhabitants of Moor street, Jaffna, have thought fit to address apetition .to this Court, in which they discuss the merits of this ease,and even go so far as to suggest what judgment should be given uponthe appeal. It is impossible to suppose that the signatories to thispetition, some of whom are able to wdte English, were unaware thatthey were doing an improper thing. They have done more than that,and have been guilty of a contempt of this Court, although they havefaffed in their object of influencing our decision. The petitionerswill be informed of the view taken by this Court of their conduct, andwarned that any recurrence of this abuse of petitions will be visitedwith severe punishment.
September 19,Weudt J.
MAMMADU NACHCHI v. MAMMATU KASSIM