Marikko/r v. Habeeba TJrrwna
1948Present: Dias and Gratiaen JJ.M ARTK FC AR, Appellant, and HABEEBA UMMA, Respondent
S. C. 210—D. G. Puttalam, 5,026
MiaVi/m Marriage Ordinance—Award of mahr by Kathi—Machinery to enforceaward—Regular action not available—Remedy given by Ordinance-—-Chapter 99—Section 21 (2) (a) and 21 (4). ■
An award of mahr by a Kathi undpr section 21 (1) (a) of the MuslimMarriage and Divorce Ordinance can be enforced only as provided bysection 21 (4) of the Ordinance. A regular action cannot be brought torecover the amount of the award.
.A.PPEAL from a judgment of the District Judge, Puttalam.
M. I. M. Haniffa, with Naina Marikar, for defendant appellant. .G. E. Chitty> with N. Nadarasa, for plaintiff respondent.
Cur. adv. wit.
GRATTARN J.—Marikkar v. Habeeba XJmma
December 20, 1948. Gratxabn J.—
The parties to this action, are Muslims, and were married on December24, 1943. The husband, who is the appellant, had admittedly notfulfilled his promise to pay to his wife a sum of !Rs. 1,000 as mahr,and in October, 1944, she claimed the recovery of this sum from theappellant in the Kathi’s Court of Puttalam. In view of the sum involved,the Kathi’s Court undoubtedly had jurisdiction in the matter by virtueof section 21 (1) (a) of the Muslim Marriage and Divorce RegistrationOrdinance (Chapter 99). In due course the appellant was ordered topay Rs. 1,000 to his wife, the respondent, as prayed for by her ; but sofar he has successfully evaded payment without making the slightestattempt to justify his default.
This appeal relates to the machinery available to the respondentfor the purpose of enforcing the award in her favour. Section 21 (4)of the Ordinance provides that any sum awarded by the Kathi in respectof a claim upon which he is empowered to adjudicate “ may be recoveredas though it were a fine imposed under the Ordinance on application madeto the MagistrateIn accordance with the procedure
laid down, the application requires to be supported by a certificateunder the Kathi’s hand specifying the amount recoverable. The sectionalso states, out of an abundance of caution, that the Magistrate’s powersin the matter shall not be restricted to the recovery of amounts whichhe is competent, qua Magistrate, to impose by way of fine. All sumsrecovered by the Magistrate are remitted to the Kathi’s Court forpayment in due course to the person thereto entitled.
The machinery laid down by section 21 (4) of the Ordinance is clearlyexhaustive of the remedies available for the enforcement of awardsmade by a Kathi’s Court in respect of claims for the payment of mahr.In the present action the respondent did in fact attempt to avail her-self of that remedy in the Magistrate’s Court of Puttalam, but sheapparently became discouraged by the completely negative resultsachieved in that Court. She has therefore sought to avail herself of someother machinery (operating either concurrently with or alternatively tothat prescribed by the Ordinance) in her efforts to compel the appellantto honour his obligations. She sued the appellant in a regular action,with which we are now concerned, in the District Court of Puttalam toenforce the award of the Kathi’s Court. I think that the respondent’srights are restricted to the procedure laid down by section 21 (4). Theremedy of enforcing by regular action in one tribunal the awards ordecrees of another tribunal are confined to very special instances suchas arise for example in the case of foreign judgments and the awardsof arbitrators. The District Courts of the Island cannot be regardedas courts of execution in respect of the decisions' of a Kathi’s Courtunless there is some express statutory provision to that effect.Least of all can they be so regarded when, as in the present case, someother tribunal has been specially selected by the Legislature for thepurpose.
The learned District Judge has, in my opinion, wrongly rejected thepreliminary issue of law raised by the appellant with regard to the
GR.ATIAEN" J.—Marikkar v. Habeeba Umma
maintainability of the action. I agree with him that the 'proviso to section21 (4) which empowers a Magistrate to commit a person to prison fornon-compliance with a Kathi’s Order for the payment of maintenancehas not (and advisedly not in my opinion) been extended to cases wherethe order is made in respect of mahr, but I do not see how that circum-stance can affect the present question. The primary purpose of section21 (4) is not to punish a person affected by a Kathi’s order but to providea convenient and speedy means of recovering sums awarded by him,and the provisions of the Criminal Procedure Code which deal with therecovery of fines are by no means limited to the weapon of incarceration.Besides, the appellant’s obligation in the present action merely representsa civil debt which for purposes of convenience has been made “ recover-able as though it were a fineThe theory of punishment does not seem
to intrude upon the problem at all.
In my opinion the respondent’s remedy is misconceived and her presentaction cannot be maintained. On the other hand, the appellant’sconduct disentitles him to the slightest sympathy, and I would makeorder that the respondent’s action should be dismissed, but withoutcosts in either Court.
Dias J.—I agree.
MARIKKAR, Applicant and HABEEBA UMMA, Respondent