Nizam v. Beebi
COURT OF APPEALISMAIL, J.,
J. A. N. DE SILVA, J.
C. A/LA 25/85 (LG)
BOARD OF QUAZI – BQ/2542
QUAZI COURT, KURUNEGALA – 1622/CM
SEPTEMBER 22, 1997, NOVEMBER 03, 1997.
Muslim Marriage and Divorce (Amendment) Act 1 of 1965 – S. 6, 47 (1) (cc)and 48 – Right of an illegitimate child to claim maintenance – Age of MajorityOrdinance – Maintenance Ordinance S. 2 and 6 – Corroboration.
The respondent claimed maintenance from the appellant for the child bom to herout of weock, alleging that he is the father of the child. The Quazi made orderagainst the appellant. The appeal to the Board of Quazis was dismissed.
In appeal, it was contended that the Quazi had no jurisdiction to entertain theapplication for maintenance in view of S. 6 of the Maintenance Ordinance. It wasfurther contended that as Muslim Law imposes no obligation on a natural fatherto maintain his illegitimate child the only law which provides liability is theMaintenance Ordinance, which creates a statutory liability.
(a) An illegitimate child is conferred the right to claim maintenance from theputative father by S. 47 (1) (cc) of the Muslim Marriage and Divorce Actand the Muslim Law to the extent that it does not impose a liability ona father to maintain his illegitimate child has thereby been abrogated.
The Board of Quazis was justified in holding that the judgment of the Quaziwas not rendered void for the reason that the application for maintenancehas been made to him after the period prescribed in the MaintenanceOrdinance.
APPLICATION for Leave to Appeal. – Leave been granted.
Cases referred to:
Mohideen v. Asiya Mariam – Vol. IV —
Muslim Marriage & Divorce Law Reports at 141.
Pallithamby v. Savariathumma – 64 NLR 572 at 573.
Ummul Marzoona v. A. W. A. Samad – 79 NLR 209.
Sri Lanka Law Reports
(1998) 1 Sri LR.
Faisz Musthapa, PC with Rumy Marzook for appellant.A R. M. Kaleel for respondent.
Cur. adv. vult.
December 01, 1997ISMAIL, J.
The respondent Thajun Beebi filed an application before the Quazi,Kurunegala in case bearing No. 1622/CM claiming a monthly allow-ance as maintenance from the appellant for the child named Nazarborn to her out of wedlock, on 26.9.1978, alleging that he is the fatherof the child. The appellant denied paternity. The learned Quazi madehis order against the appellant on 26.3.1983 and upon finding thathe is the father of the child ordered the payment of a sum ofRs. 100/- as maintenance monthly with effect from 1.9.1981.
The appellant being aggrieved by this order lodged an appeal tothe Board of Quazis in case bearing No. BQ/2542. The Board affirmedthe order of the Quazi and dismissed the appeal on 30.1.1985.
The appellant filed an application to this Court dated 26.2.1985for leave to appeal from the aforesaid order of the Board of Quazisdated 30.1.1985. The matter was supported on 28.2.1985 and an orderwas made that it be listed for hearing with notice to the respondent.The respondent was represented by counsel on 17.6.1985 and onhis application the matter was relisted for hearing on 6.8.1985. Theparties were represented by counsel on that date and an order wasmade that it be listed for hearing again in October 1985. However,the matter was next listed to be mentioned almost 7 years thereafteron 23.7.1992. Since that date it was listed for hearing on six furtherdates and finally when it was taken up on 29.11.1995 the appellantwas granted leave to appeal.
The appeal itself was fixed for hearing on six dates thereafter. Ithad to be postponed on several occasions as the record had not beenreceived from the Board of Quazis. Finally when it came up for hearingon 22.8.1997 both counsel agreed to tender written submissions. Thewritten submissions of the petitioner were tendered on 22.9.1997 andthat of the respondent on 3.11.97. Learned counsel for the respondenthas devoted a paragraph in his written submissions to ‘laws delays’.
Nizam v. Beebi (Ismail, J.)
It is in these circumstances that this judgment is being delivered, 12years and 9 months after the petition was filed in this court, and aboutthree months after the child bom to the respondent would havecompleted his 19th birthday.
Learned counsel for the appellant has conceded that a Quazi hasjurisdiction to inquire into and adjudicate upon claims for maintenancein respect of illegitimate children in view of the provisions of section6 of the Muslim Marriage and Divorce (Amendment) Act, No. 1 of1965. The Muslim Marriage and Divorce Act (cap. 114) vol. VI LE(1980) revised edition (unofficial) now provides that the powers of theQuazi shall include the power to inquire into and adjudicate upon –
“(cc) notwithstanding anything to the contrary in section 2, anyclaim for maintenance by or on behalf of an illegitimate child wherethe mother of such child and the person from whom maintenanceis claimed are Muslims.''
The submission on behalf of the appellant is that the Quazi hadno jurisdiction to entertain the application for maintenance in view ofthe provisions of section 6 of the Maintenance Ordinance and thattherefore the order for the payment of maintenance has been madewithout jurisdiction. Section 6 of the Maintenance Ordinance (cap. 100)vol. V (1980) revised edition (unofficial) provides that an applicationfor a monthly allowance for the maintenance of an illegitimate childshall not be entertained unless made within 12 months from the birthof such child or unless it be proved that the man alleged to be thefather of such child has at any time within 12 months next after thebirth of the child has maintained it or paid money for its maintenance.
It was submitted that the application for the maintenance of thechild bom on 26.9.1978 has been made on 26.9.1981 after the periodprescribed in section 6 of the Maintenance Ordinance and that therewas no evidence that the appellant has maintained the child at anytime. It was contended therefore that the judgment of the Quazi isvoid as he had no jurisdiction to entertain the application.
A similar submission was rejected by the Board of Quazis in thecase of Mohideen v. Asiya MariamfIt was held that: "Section 6of the Maintenance Ordinance would apply only where an action hasbeen instituted under section 2 of that Ordinance. Since the matter
Sri Lanka Law Reports
(1998) 1 Sri L Ft.
in appeal is an action instituted under section 47 (c) of the Act, No.13 of 1951, the Maintenance Ordinance has no relevance and noopertative effect".
It appears that the respondent had originally initiated proceedingson 23.2.1979 in case bearing No. 48309 in the Magistrate's Court,Kurunegala, seeking maintenance for the child from the appellant.
It was further submitted that as Muslim law imposes no obligationon a natural father to maintain his illegitimate child, the only law whichprovides for that liability is the Maintenance Ordinance which createsa statutory liability. The appellant relied on a passage in the judgmentin Pallithamby v. Savariathumma(Z> at 573 in which it was noted thatsection 2 of our Maintenance Ordinance is in exactly the same termsas section 488 of the Indian Criminal Procedure Code which imposeda statutory liability, not confined to Muslims alone, to maintain anillegitimate child. It was there observed as follows: "So that the samestatutory liability as in India is imposed here on a person whetherhe is a Muslim or not". The only ground urged by the counsel in thatcase was that a Muslim in this country is not obliged to maintain hisillegitimate child. His application for leave to appeal was refused afterthe court approved his concession later that a Muslim is liable tomaintain his illegitimate child and that the amendment to section47 (1) (c) empowered a Quazi to inquire into and adjudicate upona claim for maintenance made on behalf of an illegitimate child whenthe mother of the child and the person from whom the maintenanceis claimed are Muslims. This judgment does not support the propositionthat the Quazi is bound to apply the provisions of the MaintenanceOrdinance in an inquiry and adjudication into the claim for maintenanceof an illegitimate child.
It is quite clear therefore that in this country an illegitimate childis conferred the right to claim maintenance from the putative fatherby section 47 (1) (cc) of the Muslim Marriage and Divorce Act andthe Muslim law to the extent that it does not impose a liability ona father to maintain his illegitimate child has thereby been abrogated.
In Ummul Marzoona v. A. W. A. Samad,® a divisional bench ofthe Supreme Court confirmed that section 48 of the Muslim Marriageand Divorce Act vests exclusive jurisdiction in the Quazi in respectof marriage and divorce and matters connected therewith such asmaintenance and that neither the provisions of the Maintenance
Nizam v. Beebi (Ismail, J.)
Ordinance nor those of the Age of Majority Ordinance applies toMuslims. The Board of Quazis was therefore justified in holding thatthe judgment of the Quazi was not rendered void for the reason thatthe application for maintenance has been made to him after the periodprescribed in the Maintenance Ordinance.
Learned Counsel for the appellant submitted further that the require-ment of corroboration has not been considered either by the Quazior the Board of Quazis. On the contrary it appears from the orderof the Board of Quazis that the issue of corroboration has been fullyconsidered. They have found that the evidence of the respondent hasbeen corroborated by the evidence of her sister and have summarisedthe matter as follows:
"In the light of these, when the evidence of the respondent isexamined it is supported by the evidence of her younger sister, FouzulInaya. This witness has seen the appellant enter their house at nighton more than one occasion, seen him blow off the bottle lamp andkeep on chatting with the respondent on the bed until such time thatwitness fell asleep. She had threatened to report this matter to themother. She also knows that the appellant took the respondent toKurunegala to get medicine and she accompanied them. Later hersister, the respondent, informed her about the pregnancy. About thistime the appellant got married to someone else. It was brought tothe notice of the mother. The mother with her husband, the stepfatherof the respondent, lodged a complaint at the Kumballanga Jummamosque on 10.06.1978. The document marked P1 refers to that inquiryheld into this complaint. At this inquiry the appellant refused to takean oath that this child is not his child. The learned Quazi has quotedthe significant question that the appellant had asked the respondentat this inquiry, i.e. Am I the only person who came there ?' Thesefacts leave no doubts on the question of corroboration."
For the reasons set out above the appellant cannot succeed inthis appeal.
The appeal is therefore dismissed with costs fixed at Rs. 1,500.J. A. N. DE SILVA, J. – I agree.