NOORUL NALEEFA, Appellant and MARIKAR HADJIAR, Respondent

166-NLR-NLR-V-48-NOORUL-NALEEFA-Appellant-and-MARIKAR-HADJIAR-Respondent.pdf


Noorul Naleefa v. Marikar Hadjiar.
529
1947Present: Canekeratne and Dias JJ.
NOORUL NALEEFA, Appellant, and MARIKAR HADJIAR,
Respondent.
S. C. 170—D. C. Kalutara, 26,076.
Divorce—Action by Muslim wife—Fasah Divorce—Dissolution on ground ofleprosy—Jurisdiction of District Court—Grounds of divorce—Powers ofKathi Court—Chapter 99, Legislative Enastments.
The provisions of Chapter 99 of the Legislative Enactments do notpreclude a Muslim wife from bringing an action in the District Courtfor a dissolution of marriage on the ground of leprosy of the husband.
The principle of the Muslim law that leprosy is a ground of repudiatingthe contract of marriage is still part of the law of Ceylon.
Per Dias J. : The combined effect of sections 50 and 51 (2) of theMuslim Marriage and Divorce Ordinance (Cap. 99) is to revest in theDistrict Courts the jurisdiction to try actions for divorce which areinstituted by Muslim wives against their husbands and which do notfall within the ambit of the definition of “ Fasah Divorcee ” in section51 (1). In such an action no decree nisi can be pronounced, no orderfor alimony or the custody of the children can be made, and it is doubtfulwhether the wife will be entitled to demand that her costs should beprovided by the husband.
PPEAL from a judgment of the District Judge, Kalutara.
H. V. Perera, K.C. (with him M. 1. M. Haniffa, U. A. Jayasundera,
T. Samarawickreme and M. S. Abdulla), for the plaintiff, appellant.—The question that arises for consideration on this appeal is whether theDistrict Court has in certain circumstances jurisdiction to entertain anaction for dissolution of marriage between Muslims. It is cleat- thatprior to 1929 the District Court had such jurisdiction (see The King v.Miskin Umma’). Then the Muslim Marriage and Divorce Ordinance,No. 27 of 1929, was enacted. Section 15 provides that where a wifewishes to effect a Fasah divorce the procedure laid down in a scheduleto the Ordinance should be followed. The Ordinance defines what ismeant by the term, “ Fasah divorce ” (vide section 51). It was onesought by a wife, “ on the ground of ill-treatment or for an act or omissionon his part amounting to a ‘ fault ’ under the Muslim law ”. It isconceded that where a wife desires to obtain a divorce which falls withinthe class of Fasah divorces as defined in the Ordinance, the procedurelaid down in the Ordinance and that procedure alone must be followed.It is submitted however that the effect of the Ordinance is not to restrictthe wife to the kind of divorce defined there. Under the law existingat the time of the enactment of the Ordinance a wife could have soughtdivorce on other grounds not included in the definition of Fasah divorce.An affirmative statute will not be presumed to repeal the existing law,whether statutory or custom, unless it cannot stand together with it(vide Beale’s Cardinal Rules of Legal Interpretation, p. 527). Again as
1 (1925) 26 N. L. R. at 343.
530Noorul Naleefa v. Marikar Hadjiar.
the District Court had jurisdiction in these matters, that jurisdictionwould not be taken away except by express words or necessary implication(vide 31 Hailsham 508 ; Beale p. 384).
[Dias J.—What is the effect of the introductory words stating thatthe Ordinance is one to amend and consolidate the law ?] That state-ment did not appear in the original Ordinance. It has been put in by theCommissioner entrusted with the task of bringing out the Revised Editionof the Legislative Enactments. He had no power to change or addto the introductory words in order to alter the scope of the Ordinance.
[Canekeratne J.—The Commissioner has merely put together thetwo Ordinances dealing with the subject. When he says to amend andconsolidate the law, he means the statute law.l
That must be so specially in view of section 50 which preserves theMuslim law of marriage and divorce and the rights of Muslims thereunder.
Under the general provisions of Muslim law, especially of Shafei law,a wife was entitled to dissolution of marriage on the ground of theimpotence of the husband at the time of marriage or on the ground of hissuffering from leprosy. Neither leprosy nor impotence could be saidto be “ an act or omission ” on the part of the husband and, therefore,could not fail within the grounds of a Fasah divorce as defined in theOrdinance. It could not have been intended to deprive a wife of herright to divorce on these grounds in the absence of clear and expresswords directed to that end. In this case the appellant alleges that thehusband is suffering from leprosy and that she is on that ground entitledto a divorce. Leprosy whether contracted before or after the marriageis a ground for dissolution (vide the Mohammedan Code of 1806, section92, Minhaj et Talabin p. 299, Fitzgerald p. 80). The appellant also asks fora Khula divorce stating that she is willing to pay any reasonable sum forrelease from the marriage tie. This form of divorce is recognized amongMuslims (vide 26 N. L. R. at 280, 281) and is stated to have been firstgranted by the Prophet himself (vide Tyabji p. 235; Ameer Ali, Vol. II.p. 506).
N. E. Weerasooria, K.C. (with him E. F. N. Gratiaen, K.C., H. W.Jayewardene and M. Rafeek), for the defendant, respondent.—Theintroductory words to the Ordinance, namely, “to amend and consolidatethe law relating to the marriage and divorce of His Majesty's subjectsin Ceylon professing the Muslim faith ”, correctly set forth the effect ofthe enactment. It was passed in order to relieve the lay Courts of thetask of dealing with Muslim divorces and of placing the matter in thehands of Kathis who are conversant with Muslim customs. There werevarious forms of divorce (1) tollok, (2) Khula, (3) Mubarat. Khula isdivorce at the instance of the wife. Mubarat is divorce by mutualconsent. The difference between these various forms lay in the differentconsequences as to property. But in all cases the divorce had to begiven by the husband. For instance, in the case of Khula the husband’sconsent to the divorce may be obtained in consideration of a payment,but he himself gives the divorce and there is no intervention of Court(vide Ameer Ali, Vol. II., p. 474, 5). It is the husband’s consent thatmatters (see Wilson’s Anglo-Muhamadan Law, p. 154). In the- case of
CANKKERATNE J.—Noorul Naleefa v. Marikar Hadjiar.531
Khula there is divorce by the husband to which section 14 applies. Thatsection requires the procedure set out in the second schedule to theOrdinance to be followed. There was also judicial divorce for which awife sought the intervention of Court. All the grounds for such divorceare available under the Ordinance except possibly impotence and leprosy.Impotence had to be such as existed at the time of marriage. A wife can-on such ground obtain a decree for n"Uity under the general law. A wifetherefore still has her remedy. In the case of leprosy there seems to havebeen some controversy as to whether subsequent leprosy would be aground for divorce. Wilson says that Minhaj alone gives it as hispersonal opinion that it would be a ground. It will be seen thereforethat apart from the question of leprosy in regard to which there is somedoubt, a wife has under the Ordinance all the remedies which she hadbefore the enactment.
There can be no doubt that the intention of the Legislature was thatthe Kathi should deal with these matters and the Court should ceaseto be concerned with them. An important consideration appears to bethat the Kathis could explore more fully the possibility of reconciliationon which Muslims set much importance. Again, there is provision forregistration of divorces effected under the Ordinance but none fordivorces granted by Court. It- could not have been intended to have anincomplete system of registration. If it is held that the District Courthas also jurisdiction there will be two forums competent to grant Fasahdivorces but on different grounds ; and the whole scheme and purpose ofthe statute law will be frustrated.
V. Perera, K.C., in reply.—Minhaj states very definitely thatsubsequent leprosy is a ground for divorce. This is supported byFitzgerald (vide Fitzgerald’s Digest, p. 80) and there is no statement any-where that it is not a ground. There is a recent Indian Act No. 8 of 1939,the Muslim Marriage Dissolution Act, which was passed to consolidate thelaw of divorce in India, and in it subsequent leprosy is explictly statedto be a ground for divorce (vide section 6).
One must distinguish between the grounds for divorce and theprocedure laid down for obtaining it. Even if no procedure is laid downbut the substantial right or remedy exists the Court will adapt its owngeneral procedure to suit the particular matter. The Ordinance reallylays down the procedure to be followed in certain kinds of divorces. It doesnot purport to lay down the grounds. The grounds aTe those whichexisted under the general Muslim law. Since the Ordinance deals withprocedure and not with grounds for divorce it cannot be said by implica-tion to affect or restrict the latter.
Cur. adv. vult.
October 2. 1947. Canekeratne J.—
This is an appeal from a decision of the District Judge of Kalutara,dismissing a wife’s action for divorce on the ground of the leprosy of thedefendant. The parties are Muslims of the Shafi sect and were marriedon December 28, 1838, the wife being then about 20 years old ; there hasbeen consummation of the marriage.
532CANEKERATNE J.—Noorul Naleefa v. Mtirikar Hadjiar.
The plaintiff, it appears, discovered that the defendant was sufferingfrom leprosy and about the end of the year 1945 she started livingseparately from him.
On the date of tried 33 issues were framed and on the suggestion of thedefendant’s Counsel, the trial Judge decided to hear issues 12, 13, 19,and 20, as preliminary issues on the ground that they go to the root ofthe case. Issue No. 19 refers to the proceedings and orders in Kathicase No. 375 ; it was decided against the defendant and no attempt wasmade at the argument in appeal to show that, the decision was erroneous.The other three issues deal with the right of the plaintiff to institute thisaction and was decided against her. There was an alternative claim torelief put forward by the plaintiff that she was entitled to a Khuladivorce.
The question for our decision is, whether a Muslim wife can haverecourse to the civil courts for the purpose of obtaining a dissolution of. her marriage. It is contended that the provisions of Chapter 99 C. L. E.preclude her from doing so. Prior to January, 1937, the date whenOrdinance No. 27 of 1929 came into operation, the civil courts of theIsland were as much open to a Muslim married woman as to her sistersubject to what is known as the common law of the Island to obtainrelief in matrimonial disputes ; thus she could sue him for recovery ofdower or maggar for maintenance and for divorce. In the latter casethe application would be made to a District Court; these Courts haveexclusive jurisdiction in matrimonial matters (section 62 of the CourtsOrdinance, Ch. 6 C. L. E.); “ the sitting Magistrate ” or “ CompetentJudge ” of the Mohammedan Code of 1806 corresponds to. the DistrictJudge. The general rules of Civil Procedure, not those in Chapter XLIIof the Code (Ch. 86 C. L. E.) would be applicable in an action institutedby her3.
Marriage is, in Mahommedan law, simply a contract, it is likened to acontract of sale, or exchange. A purchaser of goods had a right torescind the contract on discovery of some hidden fault, or on breach of acondition relating to certain defects, these were called options of defect—-redhibitory defects. Redhibitory defects are those which either destroyor impair the usefulness of the thing sold for the purpose for which thingsof that kind are ordinarily intended to be used. The purchaser can bringan action for the rescission of the contract and recovery of the purchasemoney. The parties to a contract of marriage may agree on the terms of■the contract, and if the terms are of a reasonable nature and are notopposed to- the policy of the law, they will be binding. Thus an agree-ment entered into before marriage by which it is provided that the wifeshould be at liberty to divorce herself from her husband under certainspecified contingencies would be valid if the conditions are reasonable3.
It may be useful to start with' the law that was in force in the adjoiningcountry, Palestine. The right of divorce rested entirely with the man,and the grounds of it in Deuteronomy are very vaguely expressed.
If she find no favour in his eyes because he hath found some unseemly
1 For an instance, see Beebe v. Pitche (1924) 26 N. L. R. 277.
* Ayesha UmmQv) Abdul Carim (1880) 4 S. C. C. 13, p. 14.
The King v*Mishin Umma (1925) 26 N. L. R. 330.
3 Hamidoola v. Feizunnissa (1882) 8 Cal. 327.
533
CANEKERATNE J.—Noorul Nalee fa v. Marikar Hadjiar.
thing in her, he shall write her a bill of divorcement ” This expressiongave grounds for much difference of interpretation. In later timesthere was considerable divergence of opinion among the rabbis them-selves. The school founded by Shammai (first century B.C.) pressingthe words “unseemly thing ” (the most literal rendering of the wordbeing “ nakedness ”) understood it of unchastity; the school of Hillelpressing the word “ thing ” and the clause “ if she found no favour in hiseyes ” supposed the most trivial causes to be included, declaring forinstance, that a wife might be divorced, even if she burnt her husband’sfood. It may be doubted, however, how far the latter opinion wasliterally acted upon. It is most natural to understand the word(“ nakedness ”) of immodest or indecent behaviour. The groundsmentioned in the Misnah as justifying divorce are violation of the law ofMoses, or of the Jewish customs. The Hillelite doctrines were, accordingto Ameer Ali', chiefly in force among the Jewish tribes at the time of theProphet’s appearance and repudiations of wives by husbands were ascommon among the pagan Arabs. Mohammed set himself to amelioratethe position of women. “ Ye men ” he said “ ye have rights over yourwives, and your wives have rights over you ”. Free divorce the Prophetwas compelled to tolerate. “ The thing which is lawful but is dislikedby God is divorce ”. There are certain cases in which divorce appearsto be compulsory but even apart from them the husband may divorcehis wife without assigning any cause. The wife, however, is protectedby the dower, or more strictly, the bride price, of which a portion isdeferred, and which may be claimed by the wife if she is divorced withoutcause.
The husband may divorce his wife at his mere will and pleasure,without assigning any reason. The contract of marriage may be dissolvedby him in three ways : —
By the husband at his will. A divorce proceeding simply from the
husband or from another in pursuance of authority given bythe husband, the person may be the wife or a third party, iscalled talak Divorce by talak may be effected in the follow-ing ways *: —
by a single declaration of talak, followed by abstinence
from sexual intercourse for the period called iddat,
by a declaration of talak repeated three times, during
successive intervals of purity,
by a declaration of talak, repeated at shorter intervals or
even in immediate succession,
by a declaration of talak pronounced once, provided it
shows a clear intention that the divorce shall immediately
become irrevocable.
A divorce by mutual agreement of the parties. When there is
dissension between married persons (“ when married parties1 Deut. 241.
1 2 Amur Ali {4th Ed.), 520.
Hamidoola v, Feizunnisso {1882) 8 C>nl. 327.
Ayatvnnessa Beebe v. Karam Ali {1908) 36 Cal. 23.
4 Wilson—Anglo-Mohammadan law, 4th Ed., 143, 144.
534
CANEKERATNE J.—Noorul Naleefa v. Marikar Hadjiar.
disagree ") the woman can release herself from the marriage tieby giving up some property in consideration of which thehusband is to give her a khula1 * * * * * * 8. She takes the initiative inasking to be repudiated. The divorce is the sole act of thehusband though granted at the instance of the wife and pur-chased by her*. Some valuable consideration passes from thewife as the party seekiii0 the divorce to the husband. The wifeoffering, and the husband accepting, compensation out of herproperty for the release of his marital rights. It is called adivorce by Khula”.
A divorce by mutual consent. No consideration passes fromthe wife to the husband. It is called a Mubarat divorce.
There is no mention in the law (Jewish law) of divorce by the wife.A wife could not legally separate herself from her husband but in latertimes her condition evidently improved. Among the later Jews shecould claim a divorce under certain circumstances, namely, if her husbandwere a leper or afflicted by a polypus or engaged in a repulsive trade *;if he refuses to perform his conjugal duty, if he continues to lead adisorderly life after marriage, if he proves impotence during ten years,if he suffers from an insupportable disease, or if he leaves the country forever
The wife can never divorce herself from her husband without hisconsent ; but she may under certain circumstances, obtairf^. dissolutionor cancellation of the marriage” (1) when the husband is guilty ofconduct which makes the matrimonial life intolerable to her, e.g., asill-treatment, neglect to perform the duties which the law imposes on himas obligations resulting from marriage, (2) on the ground of her husband’simpotence, proved to have existed at the time of the marriage, providedthat she then did not know of it and that it has not since been removed ;but not if she knew of its existence at the time of the marriage, nor if itcommenced only after the marriage had both been contracted andconsummated ’.
The Shafeite law permits dissolution also in the following cases : t(l)Where the husband is unable to afford her maintenance on even thelowest degree of the three recognised scales’. (2) Where the husbandis afflicted with madness or leprosy".
The proceedings for obtaining a divorce on the ground of impotenceof the husband, or of his insanity, or leprosy, or inability to affordmaintenance are not classed with divorce in the law books but are
1 Minhaj (Howard's translation! 322.
Af. Buzul.ul-Raheem v. Bateefutoon Niasa, 8 M.I .A., 378, p. 396.
Wilson op. cit. p. 151.
Driver ; Deuteronomy, 270, 271.
G las son ; Be Marriage Civil, 149, quoting the Talmud.
Ameer Ali op. cit. 581.
Wilson op. cit. 153, 154.
8 Wilson.op. cit. 432.
Wilson op. cit. 432.
CANEKERATNE J.—Noorul Naleefa v. Marikar Hadjiar.' 535
assimilated to the “ option of defect ” (actio redhibitoria) allowed to thepurchaser of goods on the discovery of some hidden defect1. In theMinhaj they are referred to as grounds for repudiating a marriage *.
Anyone who becomes aware that he has married a person afflictedwith madness, elephantiasis or leprosy has a right to renounce themarriage. A wife may renounce her husband on discovering him to beimpotent or castrated. A wife's right to renounce her marriage is notlimited to defects existing at the time of the marriage contract, butextends to such as he may have acquired subsequently; with theexception of impotence, for a husband who becomes impotent aftercohabiting with his wife can no longer be renounced by her *.
The right of dower is affected by the exercise of the option. If therenunciation of marriage on account of redhibitory defects takes placeprevious to all carnal intercourse, the woman loses her right to dower.If renunciation takes place after consummation, proportional dower isdue whether the defects existed at the time of the contract, or whetherthey became manifest between the time of the contract and the firstcoition ; fixed dower is due only where renunciation is based upon defectsascertained after the first coition The sum of money or other propertythat the wife is entitled to claim from the husband by way of considera-tion for the surrender of her person is called dower, or maggar or mahr inCeylon.
The Code of Mahommedan law observed by the Moors in the provinceof Colombo obtained statutory recognition by the decision of the Councilon August 5, 1806. It was later extended to Mahommedans residing inother parts of Ceylon by Ordinance No. 5 of 1852, section 10. Theprovisions contained in the Code were binding on Mahommedans fora long time. Articles 74-79 and 92 deal with the question of a divorceby a wife. Articles 87-90 with the question of a divorce by a husband.Article 79, with the question of a divorce by mutual consent. Dissensionbetween married persons is referred to in Articles 80, 81-85. The wifewas entitled to obtain a divorce on the ground of the leprosy of thehusband whether it was discovered before the consummation of themarriage (Art. 74), or after cohabitation had taken place (Art. 77) ;in the former case the woman had to restore the marriage gift (maggar),if she received no maggar she cannot claim it (Arts. 76, 78) ; in the lattercase the wife was entitled to keep it (Arts. 77, 78).
Ordinance No. 8 of 1886 made provision for the registration of themarriages of persons professing the Mahommedan faith.
When the Code of Mahommedan law was passed leprosy was a ground ofrelief according to Mahommedan law and the legislature must be pre-sumed to have left matters as they were not intending to restrict therights of a wife.
In 1925 it was held that the marriage of a Muslim woman could bedissolved only by a divorce effected by her husband or by a divorcegranted by a District Court. (The King v. Miskin Umma‘.) Some time
1 Wilson op. eit. 432.
Minhaj 299.
Wilson op. cit. 432.
3 Minhaj 299.
Minhaj 300 (right of option).
3 The King v. Miskin TJmma (1925) 26 N. L. B. 330.
536CANEKERATNE J.—Noorul if a leefa v. Marikar Hadjiar.
after the decision in this case, the legislature after consideration of thequestion, passed in December, 1929, Ordinance No. 27 of 1929. TheOrdinance did not come into operation till long after an amendingOrdinance had been passed. It is an Ordinance to provide for theregistration of Muslim marriages and divorces contracted and effectedin the Island. It made provision for the appointment of Kathis. Itrepealed sections 64 to 102 (first paragraph) of the Mahommedan Codeof 1806 and the whole of the Mahommedan Marriage RegistrationOrdinance (section 48). Section 14 (with the rules in the SecondSchedule) deals with a divorce by a husband and section 15 (with therules in the Third Schedule) with a divorce by a wife. A Kathi wasgiven power to adjudicate upon—(a) claims for payment of mahr, notover Rs. 1,000, for maintenance, (b) actions for I. restitution of conjugalrights, II. for jactitation of marriage, a declaration that a person is notmarried to a certain man or woman. The provisions contained in “ b ”were repealed by Ordinance No. 9 of 1934. The Ordinance containedprocedure for registration of Fasah divorces effected before a Muslimpriest prior to April 1, 1925. It contained no definition of the wordsFasah divorce, this defect was remedied by Ordinance No. 9 of 1934entitled “ An Ordinance to amend the Muslim Marriage and DivorceRegistration Ordinance, 1929 ” which was passed in July, 1934.
The Statute lav/ is now contained in Chapter 99 of the C. L. E. It isentitled An Ordinance to amend and consolidate the law relating to themarriage and divorce of His Majesty’s subjects in Ceylon professing theMuslim faith—the words—Ordinances Nos. 27 of 1929, and 9 of 1934—appear in the margin. Mr. Weerasooria contended that the principleenunciated by Lord Hershell (in Bank of England v. Vagliano ’) appliedto this statute. Consolidation is the reduction into a systematic form ofthe whole of the statute law relating to a given statute, as illustratedand explained by judicial decisions. The consolidation merely placestogether in a later volume of the statute book enactments previouslyscattered together over many volumes : Chitty J. said, “ I am here todeal not with an Act of Parliament codifying the law, but with an Actto amend and consolidate the law and therefore it is, I say, theseobservations ” (i.e., the observations of Lord Herschell in Vagliano case)“ do not apply; and I think it is legitimate in the interpretation of thesections in this amending and consolidating Act to refer to the previousstate of the law for the purpose of ascertaining the intention of thelegislature ”'. The Courts will lean against any presumption that suchan act was intended to alter what would be the common or general law.Section 14 refers to a divorce by a husband and section 15 to a Fasahdivorce by a wife. Mr. Weerasooria’s contention at the start was thatthe whole law affecting Mahommedan spouses was to be found in Chapter99 and that one could not resort to the general principles of the Mahom-medan law in elucidating the rights of parties. Mahommedans, he said,attach such great importance to attempts at reconciliation of disputesbetween spouses that a special Court composed of members of their faithwho were conversant with the customs of the community was appointed *
* (,1891) A.C. 107, p. 144.
1 Re Budget! (1894) 2 Ch. 557.
CANEKERATNE J.—Noorul Naleefa v. Marikar Hadjiar537
lo which all matrimonial disputes were relegated. The civil courts,he argued, had power of inquiry only where the jurisdiction of the Courtwas specially left unaffected and as no such power was reserved by theOrdinance no application for relief could be made.
The husband may divorce his wife at his mere will and pleasure,without assigning any reason: this rule of the Mahommedan law isrecognised by the Ordinance and section 14 prescribes the procedureto be followed by the husband. What has to be done is laid down by therules in the Second Schedule—declaration of talak must be made onthree occasions. If he obtains a permit from the Kathi he must registerit. There is a material difference in the language used in the next section,which is the one dealing with a wife’s application. The section provideswhat the wife is to do if she desires to effect a Fasah divorce from herhusband. She has to appear before the Kathi. It is the duty of theKathi, to try to settle the matter by all lawful means (r. 3 of the thirdschedule). She has a limited right of relief—she can obtain a Fasahdivorce. This is defined in section 57 (1), a divorce originating in anapplication made by a wife without the consent of her husband fordivorce on the ground of ill-treatment or on account of an act or omissionon his part amounting to a “ fault ” under the Mahommedan law. Ifthe ground for a divorce is ill-treatment by the husband or an act orommission on his part amounting to a fault under the Muslim law, thenshe must make an application to the Kathi; in these cases this is theonly relief available to a complaining wife. It is not possible to applythe provisions of the section (section 15) to cases, if any, in. which aMuslim woman had a right to obtain a divorce or dissolution of hermarriage from her husband on other grounds. Limited jurisdiction isconferred on the Kathi. It was contended that the Ordinance impliedlytook away the right, if any, to apply for a divoTce or dissolution on anyother ground ; sections 20, 43, were referred to in this connection : alsothat the object of the Ordinance was to have a complete register andthat this object will become impossible of attainment if divorces could beobtained otherwise. Section 43 has hardly any application to thisquestion ; the latter part of section 20 contains wide language; its effectis to.penalise a Muslim who aids or abets another Muslim to do certainacts. It was contended further that section 49 expressly provides foran action being brought in a civil court in certain cases and that resortcannot be had to civil courts in other cases. Much stronger languagethan that contained in section 20 or section 49 would be required todeprive a person of a fight, if any, which she had before the promulgationof the Ordinance.
Section 50 has to be considered—the language of the section is asfollows : —The repeal of sections 64 to 102…. shall not affect
the Muslim law of marriage and divorce, and the rights of Muslimsthereunder. Mr. Weerasooria would restrict the applicability of thegeneral principles of the Mahommedan law to an action for nullity ofmarriage only. Leprosy was, he argued, a redhibitory defect and amarried woman’s right to get relief on this ground was analogous to theright of a purchaser of goods complaining of a hidden defect. The defect
538DIAS J.—Noorul Naleefa v. Marikar Badjiar.
should be in existence at the time when the contract was made. Refer-ence was made in this connection to the passage in Wilson p. 432 (4thEdition).
A woman who had entered into a contract of marriage could seekrelief in certain 'cases : an option of defect, or an option of repudiationwas available to her, she could take steps to rescind the contract. It ispossible to arrange the grounds under the following heads : —
Circumstances negativing reality of consent, such as coercion,
fraud, option of puberty—the fact that a minor has not attainedpuberty,
Certain defects of the body, even though these only became
manifest after the marriage. The importance of the husbandmay be classed under this. These are really redhibitorydefects and the general rules attaching to redhibitory defectsin the contract of sale would probably apply^—the defectsshould have been in existence at the time when the contract wasmade or the defect though originating after taking possessionshould be the consequence of some previous defect.
Madness or leprosy of the husband. The cases where relief can be
obtained on the ground of leprosy have already been discussed.It is only as a convenient form of expression that the term“ redhibitory defects ” seems to be applied to the grounds onwhich the option of defect could be exercised.
The principle of the Mahommedan law relating to leprosy as a groundfor repudiating the contract of marriage is still part of the law ofCeylon.
Cogent reasons were adduced by Mr. Weerasooria to show that theproceeding known as a divorce of Khula amounts to nothing more thanan offer by the wife to the husband to divorce her ; the offer does notresult in legal rights unless and until it is accepted by the husband andno steps can be taken by her in a Court of law if the husband refuses toaccept the offer. A Khula divorce though it is in form a divorce of thehusband by the wife operates in law as a divorce of the wife by thehusband.
The question whether the plaintiff is entitled to relief is a question offact to be determined on the evidence. The order on issues 12, 13, 19,and 20 is set aside and the case is sent back for trial. The appellant isentitled to the costs of appeal and of the contest in the lower Court.
Dias j.—
I agree with my brother Canekeratne that the judgment of the DistrictCourt which has been appealed against should be set aside and the casesent back for trial and that the respondent should pay to the appellant thecosts of appeal and of the contest in the lower Court.
In view, however, of the importance of the questions raised I wouldlike to make a few observations of my own.
DIAS J.—tioonil Nalee} a v. Marikar Hadjiar.539
Under the Mohammedan law there are four forms of divorce whichare recognized :
By the husband pronouncing “Tollok” without assigning any
cause. In such a case it is the husband who divorces the wife—See Beebee v. Pitchie *.
The “ Mubarat ” divorce where the spouses agree and consent to
being divorced. In this case also it is the husband who givesthe divorce by pronouncing Tollok ”—See Beebee v. Pitchies.
The “ Kulah ” divorce which is a dissolution of the marriage at the
instance of the wife who on compensating her husband hepronounces the “ Tollok ”—See Beebee_ v. Pitchie1 and R. v.Mishin Umma3.
There was a fourth form of divorce granted at the suit of the wife
by the Kazi or Judge for which there is no special name butwinch is called by the commentators “ a judicial divorce ”—See R. v. Mishin Umma3.
It is to be noted that the first three forms of divorce, i.e., by thehusband, do not come before any judicial tribunal. It is also to benoted that if the husband refused to give his wife either a “ Mubarat ”or “ Kulah ” divorce, the only right the wife had of obtaining a divorcewas by the fourth method.
Then came the unsatisfactory and incomplete Mohammedan Code of1806. Sections 64 to 102 of that Code dealt in an incomplete mannerwith Mohammedan marriage and_divorce. There was no special tribunalappointed which could grant to a Mohammedan wife the fourth form ofdivorce. This was pointed out in the case of Rex v. Mishin Umma3by Bertram C.J.—“ When on the assumption of British rule inIndia and Ceylon the Mohammedan community retained their own systemof law, that law was to be administered by the regular tribunals. InCeylon the District Judge, therefore, as the competent authority for adivorce under section 64 of the Courts Ordinance, is the competentjudge for Mohammedan divorces in so far as these require a judicialdecree
In the year 1871 in D. C. Colombo, 54,3763 and in the Full Courtdecision of Ageska Umma v. Abdul Careem * Muslim wives sued fordivorces from their Mohammedan husbands in the District Court.Referring to these cases A. St. V. Jayawardene J. said in R. v. MishinUmma3: “ The matrimonial jurisdiction conferred on the sittingMagistrate by the Mohammedan Code is now vested in the DistrictCourts of Ceylon (Ageska Umma v. Abdul Careem) which haveexclusive jurisdiction in matrimonial matters. The fact that the appli-cation of Ch. XLII of the Civil Procedure Code dealing with matrimonialcases is expressly excluded in the case of Mohammedan marriages is of
1 (1924) 26 N. Tj. R. at p. 280.
(1925) 26 N. I*. R. at pp. 338—339 and see generally Rabiya Umma v. Saibo (1914) 17 N. L. R.
ntpp. 339 and 341 and R. v. Mishin Umma (1925) 26 A L. R. atpp. 335, 340 and 343.
(1871) Vanderstraaien p. 196.
(1880) 4 S.C.C. page 13.
540
DIAS J.—Noorul Naleeja v. Marikar Hadjiar.
no consequence. The provisions of that Chapter are such that theycannot be applied to cases between Muslim spouses. But in view of thedefinition of the term ‘ action ’ in section 6 of the Code, an action by aMuslim wife to obtain a divorce can be prosecuted under the generalrules of Civil Procedure
In the year 1886 was enacted the Mohammedan Marriages RegistrationOrdinance, No. 8 of 1886, but this enactment was not concerned with thelaw of divorce.
In the year 1914 in the case of Rabiya Umma v. Saibu1 the SupremeCourt held that the Shafei law, which is applicable to the Mohammedansof Ceylon, recognized the right of the wife in certain cases to divorceher husband on the ground of desertion, and the case was sent back toascertain how far, if at all, and subject to what conditions, that righthas been admitted as a matter of custom in Ceylon. Obviously, thisrefers to the' fourth form of divorce and the law at that date in regardto this form of action was uncertain.
This uncertainty came to a head in 1925 when the matter was fullyconsidered in Rex v. Miskin Umma (supra). A “ practice ” had beenintruding itself into the life of the Mohammedan community in Ceylonunder which certain persons purported to grant or certify divorces betweenhusband and wife at the instance of the wife. A Muslim wife having beendivorced by such a person remarried. She was then charged with bigamyand convicted. In appeal, therefore, the whole legal question came up fordecision. It was held that in regard to the fourth form of divorce itcould only be granted by the decree of a Court, and that that Court wasthe District Court acting under its general matrimonial jurisdiction.It was also held that the Code of 1806 was incomplete and had to be readin the light of the general principles of Mohammedan jurisprudence.Pausing at that point, it is quite clear that up to the year 1925 it wasthe District Court and the District Court only which had the requisitejurisdiction to grant the fourth form of Mohammedan divorce, i.e.,an action by the wife against her husband without his consent.
This led ,to the enactment of Ordinance No. 27 of 1929 as amendedby Ordinance No. 9 of 1934 and which now appears as Ch. 99 in therevised edition of the Legislative Enactments.
It is to be noted, however, that the editor of the revised edition hascalled Ch. 99 : “ An Ordinance to amend and consolidate the law relatingto the marriage and divorce of His Majesty’s subjects in Ceylon professingthe Muslim faith ”. There is no warrant for this description either inOrdinance No. 27 of 1929, or Ordinance No. 9 of 1934 both of whichbecame law on January 1, 1937—vide Government Gazette No. 8,256 ofNovember 13, 1936. On the contrary, the provisions of section 50 ofCh. 99 clearly show that the Ordinance is not exhaustive because thatsection definitely says that the Muslim Law of Marriage and Divorce andthe rights of Muslims thereunder are not affected by the repeal ofsections 64 to 102 of the old code of 1806. i
i{1914) 17^N. L. JR. 338.
DIAS J.—Noorul Naleeja v. Marikar Hadjiar.541
So far as the law of Mohammedan Divorces was concerned, this statutemade two important changes : —
In regard to divorce by the husband, i.e., the first three forms of
divorce, section 14 of Ch. 99 made it obligatory that theprocedure in Schedule II. of the Ordinance was to be adopted.No decree of a judicial tribunal was necessary.
In regard to the fourth class of divorce, i.e., by the wife against
her husband without his consent, these were to be dealt withby the newly created Kathi Court following the procedurelaid down in Schedule III. of the Ordinance. An appeal liesfrom the decision of the Kathi to the Board of Kathis andtherefrom to the Supreme Court.
It is to be specially noted that the draftsman of Ordinance No. 27 of1929 did not attempt to define the expression “ Fasah Divorce ” used insection 15 which gave a Muslim wife the right to institute divorce proceed-ings in the Kathi Court. It was wrongly assumed at the argumentthat the definition of “ Fasah Divorce ” now appearing in section 51 ofCh. 99 was introduced by Ordinance No. 27 of 1929. That is not correct.This definition was brought in to the Ordinance by Ordinance No. 9 of1934 which added to the interpretation clause the definition of what thedraftsman of that Ordinance thought was a Fasah divorce. I havecalled for and perused the statement of objects and reasons of OrdinanceNo. 9 of 1934. This, states: “The definition of Fasah Divorce is new,and is inserted on the recommendation of the Committee and in accord-ance with their views regarding the implications of the term1 ”. It seemsthat if this definition had not been inserted in the main Ordinance thedifficulties which arise in the present case would never have occurred.
Two sections of Ch. 99 create the difficulty. Section 51 (1) definesa Fasah Divorce to mean:—“ A divorce of spouses subject to Muslim laweffected in accordance with the procedure prescribed in the 3rd Schedulein a case where proceedings originate in an application made by a wifewithout the consent of her husband for a divorce on the ground of ill-treatment or on account of an act or omission on his part amounting toa ‘ fault ’ under the Muslim law What such a “ fault ” is under theMohammedan law the legislature did not attempt to define. Further-more, the “ fault ” to afford a cause of action in favour of the wife mustbe due to an act or omission on the part of the husband. Obviously, ahusband who contracts leprosy or insanity cannot very well be said to beguilty of a fault due to an act or omission on his part. The draftsmanalso forgot to notice the provisions of section 50 (which originally was theproviso to section 48 of the original Ordinance). Section 50 says : —“ The repeal of sections 64 to 102 (1st paragraph) inclusive of theMohammedan Code of 1806 which is effected by this Ordinance shall notaffect the Muslim Law of Marriage and Divorce and the rights of Muslims
1 I have examined the reason given by the Committee in its irterim report of December 21,1933. It is “ that it is desirable that the meaning of the expression should be made clear by aspecial definition ”—see Sessional Paper IV. of March, 1934. This Committee consisted ofMessrs. P. E. Pieris, Chairman, M. C. Abdul Cador, S. M. Aboobucker, Mohammed Macan Markar,A. H. M. Ismail, M. I. M. Ham'ffn, T. B. Jcyah and P. D. Batnatunge.
542
The King v. Bello Sinffho.
thereunder The effect of section 50 appears to be that notwithstand-ing the repeal of sections 64 to 102 of the old Mohammedan Code, thecommon law of the Muslims in Ceylon and their rights thereunder inregard to the Mohammedan law of marriage and divorce are preservedintact. The effect of Ch. 99 is to oust the jurisdiction of the DistrictCourts (which was recognized in all judicial decisions up to R. v. MiskinUmma (supra) to entertain actions for divorce by Muslim women in regardto the fourth class of divorce and to vest exclusive jurisdiction in the KathiCourt to try Fasah Divorces brought by a wife against her husband(section 15). But when Ordinance No. 27 of 1929 defined what was meantby a Fasah Divorce the combined effect of that definition read withsection 50 of Ch. 99 was to revest in the District Courts the matrimonialjurisdiction to try actions for divorce by wives against their husbands incases which do not fall within the ambit of the definition of Fasah Divorce.For example, if it is a valid cause of action for a woman to sue herhusband for leprosy contracted after the consummation of the marriage,and such leprosy was not due to an act or omission on his partamounting to a fault under the Muslim law, obviously, the Kathi Courthas no jurisdiction and the case must be tried by the District Courtunder its ordinary matrimonial jurisdiction and not under Ch. 99. Nodecree nisi can be pronounced, no order for alimony can be made, noorder regarding the custody of the children can be made and it is doubtfulwhether the wife will be entitled to ask that the husband should provideher costs of action.
The resulting position is unsatisfactory and was, I think, neverintended by the Legislature. Today a Muslim wife who wants to obtaina divorce from her husband without his consent has to decide whethershe has to go before the Kathi Court or whether she could file her actionin the District Court. These are matters for the Legislature.
I am, therefore, of opinion that the order appealed against cannotstand.
Appeal allowed.