MANZIL v. MIHILAR & OTHERS

012-SLLR-SLLR-2002-V-2-MANZIL-v.-MIHILAR-OTHERS.pdf


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Manzil v. Mihilar & Others
69
MANZIL
v.MIHILAR & OTHERS
COURT OF APPEAL
J. A. N. DE SILVA, J. (P/CA),
AMARATUNGE, J.
CA NO. 1258/99
QUAZI COURT KEGALLE NO. 2945BOARD OF QUAZIS NO. 3494MAY 04. 2001
Writ of Certiorari – Muslim Marriage & Divorce Act s. 37, s. 43, s. 44 (1),s. 47 and s. 62 (5) – Divorce – Kaikuli – Alternate remedy – Order a nullity -Does writ lie?
The petitioner seeks to quash by a writ of Certiorari the order delivered by theBoard of Quazi and the order delivered by the Quazi Court, Kegalle.
The petitioner sought a divorce and the respondent sought the recovery ofthe Kaikuli from the Quazi.
The petitioner was ordered to pay back the Kaikuli in instalments. On appealto the Board of Quazi, the petitioner was ordered to pay balance Kaikuliwithin 03 months.
The petitioner thereafter made an application for a writ of Certiorari to set asidethe said order.
The respondent contended that the remedy is misconceived as there is analternative remedy under s. 62 (1) and Rule 4 of the 5th schedule of theMuslim Marriage and Divorce Act or under s. 43 of the same Act.
Held:
The Quazi has failed to conduct a proper inquiry in terms of s. 47 andRules set out in the 4th schedule, and thereby acted in breach of thestatute as well as the rules of natural justice.
The Quazi has also violated s. 37 of the Act. The petitioner has neverparticipated in the Kaikuli case. It is difficult to understand how severalsignatures appear at the bottom of the proceedings recorded on thatday if the petitioner was the only person who was present.
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The order is a nullity. Therefore, a writ lies.
APPLICATION for writ in the nature of Certiorari / Mandamus.
M. S. M. Saheed for petitioner.
Shibly Aziz, PC with Farook Thahir for applicant-petitioner-respondent.
Cur. adv. vult.
June 21, 2001
J. A. N. DE SILVA, J. (P/CA)
The petitioner had come before this Court by an application dated 123. 12. 1999 praying for a mandate in the nature of a writ of certiorarito quash the orders delivered by Board of Quazis on 15. 09. 1990and the order delivered by Quazis of Kegalle on 21. 12. 1997.
The petitioner is a Medical Practitioner by profession and attachedto a Government Hospital. The petitioner and the respondent-respondentare Muslims by faith and governed by the Muslim Law for the purposeof marriage, divorce and other ancillary matters.
The marriage between the petitioner and the respondent-respondentwas registered under the Muslim Marriage and Divorce Act on 1<>10. 08. 1997 and the ceremony took place on 25. 09. 1997 atBandaranaike Memorial International Hall (BMICH). At the time ofregistration a sum of Rs. 750,000 is alleged to have been given tothe petitioner as “Kaikuli” by the father of the respondent Dr. Mihilarin consideration of the said marriage. Parties lived together for a shortperiod and three weeks after the marriage, a dispute arose betweenthe petitioner and the respondent-respondent which eventuallyresulted in the break up of their matrimonial relationship.
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Manzil v. Mihilar & Others (J. A. N. De Silva, J. P/CA)
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There were two cases filed before the Quazi for the Judicial Districtof Kegalle. One was filed by the petitioner bearing No. 547/T for the 20grant of divorce. The other was filed by the respondent bearingNo. 2945 for the recovery of Kaikuli. This application appears to havebeen filed by the respondent on or about 8th of November, 1997,and according to proceedings on that date the Quazi has issuednotice on the petitioner to appear on 20. 11. 1997 for inquiry. TheQuazi states in the proceedings that he held an inquiry on 20. 11.1997 into the claim of Kaikuli and both the petitioner and respondentwere present on that day. The respondent (the petitioner in thisapplication) moved for a date and the Quazi allowed the saidapplication and the inquiry was postponed for 21. 12. 1997.30
On 21. 12. 1997 the petitioner had been represented by hismother and brothers and the respondent by her father. According tothe order of the Quazi the petitioner’s brother had admitted that thepetitioner had taken the Kaikuli in a sum of Rs. 750,000 and hadpaid back a sum of Rs. 150,000 on that day. In terms of the orderof the Quazi the balance sum of Rs. 600,000 was to be paid as follows:
The petitioner to pay a sum of Rs. 250,000 from March,
1998, in istalments of Rs. 10,000 per month andRs. 40,000 to be paid on or before 31st December, 1999,aggregating to Rs. 250,000.40
Rs. 200,000 to be paid before the end of the year 2000but the mode of payment is not mentioned.
The balance sum of Rs. 150,000 need not be paid if theabove payments are duly made but in the event of defaultthe petitioner shall pay the balance sum of Rs. 150,000aggregating to Rs. 750,000.
The respondent-respondent appealed to the Board of Quazisagainst the said order, inter alia, stating that –
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the learned Quazi has ordered instalment payments withoutascertaining the income of the petitioner (then respondent) 50and without reference to the capacity of the respondent topay the full sum of Rs. 750,000.
the order of Quazis reducing a sum of Rs. 150,000 is arbitraryand unreasonable and made without jurisdiction.
The parties filed written submissions before the Board of Quazis.The Board of Quazis made order on 15. 09. 1999 directing thepetitioner to pay the balance sum of Rs. 600,000 within threemonths from the date thereof. As stated earlier the present applicationto this Court is to quash this order as well as the original orderof the Quazis of Kegalle.60
The learned Counsel for the respondent raised objection to thisapplication on the basis that the remedy sought by way of writ ofcertiorari is misconceived as an alternative adequate and effectiveremedy was available to the petitioner. Attention was drawn to section62 (1) and rule No. 4 of the 5th schedule to the Muslim Marriageand Divorce Act which reads thus : “any party aggrieved by anyorder of the Board of Quazis may within 30 days from the date onwhich notice of the order was given as aforesaid apply by petitionto Court of Appeal for leave to appeai against such order and shallgive to the other party to the appeal notice of such application”. ?o
The learned Counsel for the respondent-respondent submittedthat the petitioner has not made use of the remedies available tohim by the governing Act, namely Muslim Marriage and Divorce Actand therefore a discretionary remedy by way of writ is not availableto him.
It was also the position of the learned Counsel for the respondentthat the petitioner could have under sections 43 and 44 of the Musilm
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Manzil v. Mihilar & Others (J. A. N. De Silva, J. P/CA)
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Marriage and Divorce Act made an application to the Board of Quazisfrom the original order of the Quazi of Kegalle but he has not donethat.so
Section 43 reads as follows :
“The Board of Quazis may call for and examine the recordof any proceedings before a Quazi under the Act in respect ofany matter whether such matter being trial or inquiry into or ispending trial for the purpose of satisfying itself as to the legalityor propriety of any order passed there in or as to the regularityof the proceedings.”
Section 44 (1) states :
“The Board of Quazis may in respect of any proceedingsbefore a Quazi the record of which has been called for in its 90discretion exercise any of the power conferred upon it for thepurposes of its appellate jurisdiction.”
It was the submission of the learned Counsel for the respondent-respondent that the petitioner has not utilized any of the provisionsmentioned above and, therefore, is not entitled to invoke thejurisdiction of this Court to obtain a writ.
It is significant to note that the petitioner has raised a morefundamental question which goes to the jurisdiction of the Quazi tomake the original order. Petitioner states that in respect of the secondapplication, viz the “kaikuli” application he did not receive notice in 100terms of the Act and that he was not given a hearing at all. Therefore,the order is a nullity due to failure on the part of the Quazi tofollow the correct procedure and for acting in breach of the rulesof natural justice.
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It appears that the petitioner has filed the application for Talak” /divorce on 08. 11. 1997 and the respondent has been noticedto appear by the Quazi on 20. 11. 1997. On this day that is20. 11. 1997 it appears that the petitioner and the respondent werepresent and both of them have placed their signature on the record.
The petitioner states that the Quazi in the course of the purportedinquiry into his divorce questioned him as to whether he obtained asum of Rs. 750,000 as dowry from the respondent. The petitionerhas specifically denied that he ever received any cash (dowry) fromthe father of the respondent-respondent and he would take an oathto the effect that he had not received any money as dowry (videProceedings marked “X” and the translation marked “Y”).
In paragraph 27 of the petition to this Court the petitioner statesthat in the proceedings marked “M” it appears that the petitioner waspresent on 20. 11. 1997 and moved for a date to discuss about‘'kaikuli” claimed by respondent. The petitioner specifically denies the 120proceedings of the said date and states that he was present beforethe Quazi on that date in respect of his application for Talak” (547/
T) and his signature was obtained at the bottom of the proceedingsof the said date in that case. The petitioner specifically states thathe was neither summoned to appear in the kaikuli case nor the saidcase was taken up for inquiry on 20. 11. 1997. The petitioner pointedout that the proceedings relating to “kaikuli” held on 27. 11. 1997does not bear his signature at the bottom of the proceedings whereas several others have signed the proceedings on that date. Throughthe proceedings the Quazi tries to give the impression that both cases, 130namely 547/T and No. 2945 (kaikuli case) were taken up together.However, the signature of the petitioner does not appear in the kaikulicase No. 2945 whereas the signature of his brother and some othersappear thereof. This fact clearly establishes that the petitioner hasnever participated in the kaikuli case before the Quazi. It is difficultto understand how several other signatures appear at the bottom of
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Manzil v. Mihilar & Others (J. A. N. De Silva, J. P/CA)
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the proceedings recorded on that day if the petitioner was the onlyperson who was present.
According to the 4th schedule to the Marraige and Divorce Actwhere the rules are set out to follow at the inquiries under section 14047 rule 8 is to the following effect, “every order made by a Quaziin any inquiry held under the rules in the Schedule shall be enteredin the record of the proceedings in the case and shall be signed bythe Quazi and claimant, applicant or complainant by the respondentif he is present".
It is significant to observe that the respondent (former wife) filedher objections to this application on 25. 04. 2000. She has not deniedthe averments set out in paragraph 27 of the petition she is silenton this matter. If the inquiry on kaikuli was taken up before themshe could have referred to that and contradicted the petitioner150when he stated that he never asked for a postponement of theinquiry relating to kaikuli.
Petitioner also complained that he never received notice of thekaikuli application. It terms of the rules set out in the 4th scheduleit is the duty of the Quazi to issue notice in writing to the partyagainst whom the application is made. It appears that Quazi hasacted in violation of this rule.
It is clear from the proceedings that Quazi has conducted thepurported inquiry in the presence of Dr. Mihilar and the mother andthe brother of the petitioner. Nowhere in the proceedings the mother 160or the brother has claimed that they represented the petitioner.
The mother of the petitioner in her affidavit has set out thecircumstances under which she went to Quazi’s house at Mawanella.According to her the Quazi telephoned her and inquired about the
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dowry. She had said that she was given Rs. 400,000 by Dr. Mihilarin respect of the marriage and out of that Rs. 250,000 was spenton the marriage itself, for the jewellery for the bride, function forthe home-coming, travelling, etc. She has also said that she is leftwith Rs. 150,000 and is willing to return that. Thereafter, she hadbeen asked to come to the house of the Quazi at Mawanella on 17021. 12. 1997. She had gone there with her second son who hadreturned from Middle East.
I totally believe her in respect of this evidence. A village Muslimwoman from Aluthgama Dharga Town would not travel to Mawanellacarrying Rs. 150,000 with her if she was not asked to come with themoney. If she went to attend an inquiry there was no necessity forher to carry the money with her. She says that when she was atQuazi’s house Quazi telephoned Dr. Mihilar and got him down tothe house. It is also relevant to note that Quazi has called them tohis home and not to his “office”.iso
The Quazi had been made a party to this application. There wereallegations levelled against him that he is related to Dr. Mihilar andhe had been acting unfairly due to that reason. Court has directedto issue notice on him and the notices have been duly served andthey have not been returned to the Registry of this Court. He hadnot bothered to say anything to the allegations levelled against whichincludes maintaning improper proceedings relating to the kaikuliapplication. It appears that he has even violated section 37 of theAct. Section 37 states that : “where it is proved to the satisfaction 190of Quazi that the woman claiming or intended to claim mahar or kaikuli,is through sickness, infirmity or other reasonable cause unable toappear in person, the Quazi may permit any fit proper personauthorized in that behalf by the claimant and approved by the Quazito institute proceedings or to appear on behalf of the claimant.
CAManzil v, Mihilar & Others (J. A. N, De Silva, J. P/CA)77
It appears that without adhering to the provisions of this sectionthe father of the respondent-respondent has played a prominent anda dominant role in the kaikuli proceedings.
In all the circumstances of this case I hold that the Quazi hasfailed to conduct a proper inquiry in terms of section 47 and rules 200set out in the 4th schedule and thereby acted in breach of theStatute as well as the rules of natural justice. Therefore, the orderhe gave is a nullity.
In view of the above findings I set aside the order of the Quazidated 21. 12. 1997. As nothing can flow from nullity I set aside theorder of the Board of Quazis dated 15. 09.1999.1 direct that a differentQuazi should take appropriate steps in terms of the law and inquireinto the application of the respondent. I think justice and fair playdemands this course of action as natural justice is fair play in action.
I make no order with regard to costs.210
AMARATUNGE, J. – I agree.
Application dismissed.