Nanaoora v. Jaria.
1946Present: Soertsz A.C.J.NANSOORA, Appellant, and JARIA, Respondent.337—Kathi Court, Kalutara, 298/261.
Muslim law—Divorce—Fasah divorce—Does previous divorce by husband
operate as bar ?—Muslim Marriage and Divorce Registration Ordinance
A Muslim wife against whom Talak had been pronounced by herhusband obtained subsequently a Fasah divorce in respect of the samemarriage. The husband appealed and the Board of Kathis, withoutdealing with the grounds on which the Fasah divorce was granted,dismissed the appeal solely on the ground that the Kathi had no juris-diction to entertain the application for Fasah divorce in view of theprevious divorce by the husband.
Meld, that the Board of Kathis should have dealt with the grounds onwhich the Fasah divorce was granted by the Kathi.
Quaere, whether a Kathi has no jurisdiction to entertain or inquireinto an application for Fasah divorce when the applicant has alreadybeen divorced by her husband. 1 2 3
1Major v. Fernando (1317) 4 C. W. R. 221.
Loku, Menika v. Charles Sinno (1918) 5 C. W. R. 281.
2Fonseka v. Jayaurickrama (1892) 2 C. L. Rep. 134.
3S. A. L. R. (1923) A. D. 317.
SOERTSZ A.C.J.—Nanaoora v. Jaria.
PPEAL against an order of the Board of Kathis.
A. Rajapalcae, K.C. (with him S. A. Marikcvr), for the husband,appellant.
H. V. Perera, K.C. (with him H. W. Jayewardene), for the wife,respondent.
Cur. adv. milt.
August 22, 1946. Soebtsz A.C.J.—
This is an appeal with the leave of this Court granted on February 24,1946. The appellant is the husband of the respondent. The partieswere married in March, 1935, but did not live happily ever after. Accord-ing to the description of the wife herself of their relations, a short timeafter marriage, they lived “ a cat and dog life.” The inevitable resultfollowed. The wife sued for a divorce on three grounds : non-main-tenance, cruelty, and desertion, and on June 24, 1945, she obtainedwhat is known as a Fa sail divorce. That order was preceded by a veryfull inquiry. This order of the Kathi in association -with his Assessorsfound that “ the respondent had treated the applicant cruelly, hadfailed to maintain her, and also deserted her.” But, not content withthat order based on the grounds on which the application for a Fasahdivorce were based, the Kathi went on to hold that the Talak pronouncedon June 13, 1939, by the husband had become irrevocable and “ sothey granted a Fasah divorce so that there may be no room for anyfurther questions or complications regarding the marriage.”
The husband appealed to the Board of Kathis and that learned bodyof men attracted by the questions of law involved in the finding thatthe one Talak pronounced by the husband on June 13, 1939, had becomeirrevocable in the course of events that followed, considered that questionalone and by their order of October 27, 1945, held that “ the learnedKathi had no jurisdiction to entertain or inquire into an application forFasah divorce when on the dates material to these proceedings the appli-cant was not the lawful wife of the appellant. • A divorce valid in MuslimLaw has, however, taken place between the applicant and the appellantand this application for Fasah divorce should therefore bedismissed.”
There is an unmistakable Gilbertian flavour about all this. A wifewho, in reality, was no wife sues a man whom she, although with greatdislike, regarded as her husband, only to be told that, in law, she and hewere complete strangers to each other. But, for all the mental discomfortthat such a situation causes, the law of the Board of Kathis may wellbe above reproach and it would have been necessary to consider it if theparties had been given an opportunity to lead evidence, by callingexperts, for instance, to ascertain the Muslim law on this point prevailingin this country since the passing of the Muslim Marriage and DivorceRegistration Ordinance of 1929. It would be necessary to considerhow far the law as quoted from Indian authorities in the learned orderof the Board of Kathis applies here. I am also of opinion that the Board
KEUNEMAN S.P.J.—The King v. Kirinelia.
should have dealt with the main grounds on which the Fasah divorcewas granted by the Kathi, namely, cruelty, desertion and non-maintenance .
I would, therefore, set aside the order appealed from and remit thecase to the Board for consideration of and decision upon these matters.
Order set aside.