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Present: Dalton J.
PATHUMMA v. 1DEOOS.214—C. R. Colombo, 49,993.
Muslim law—Divorce of wife by husband—Recovery of “ maggar ” and" kaihuli "—Maintenance during “ iddat. ”
Under the Muslim law a wife who is divorced by her husbandis entitled .to recover “ maggar " and “ kaikuli. ”
“ Maggar " is dowry money which is paid by the husband tothe wife and which remains in the husband's hands.
" Kaikuli ” is money paid by the parents of the bride to thehusband and held in trust by the latter for the benefit of the wife.
After' the divorce the husband is bound to provide maintenancefor the. wife for three months while she observes seclusion.
PPEAL from a judgment of the Commissioner of Requests,Colombo.
Marikar, for appellant.
M. F. S. Pulle, for respondent.
December 6, 1929. Dalton J.—-
The parties to this action are Muhammedans and were husbandand wife, who .have been divorced.
The plaintiff, the wife, is now claiming the sum of Rs. 300 fromher former hiisband, this sum being made up of three items: —
(1) a sum of Rs. 97.50 by way of “ maggar,”
(2) a sum of Rs. 211 by way of “ kaikuli,” and
a sum of Rs. 100, being cost of maintenance for three monthsafter the divorce whilst she observed the “ iddat.”
These sums amounted to Rs. 408.50, but plaintiff restricted herclaim to Rs. 300 to bring the case within the jurisdiction o.f theCourt. She was successful, and obtained judgment in the sum ofRs. 293 and costs, from which judgment defendant appeals.
The facts, shortly, are that the parties did not live happily to-gether ; plaintiff left her husband and claimed maintenance from him.It was found that he was guilty of ill-treating his wife, and he wasordered on September 7, 1928, to pay her maintenance.. OnSeptember 19 following he divorced her by uttering “ tollok.”The learned Commissioner is inclined to the opinion that the divorceis a ” khula ” one, uttered by the husband at the instance andconsent of the wife. He states that there was a question to be deter-mined as to whether defendant was entitled to double “ maggar.
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There is however .no such claim put forward by defendant in his.answer, although the question, is raised in the issues,:* I am notsatisfied on .the facts that it can be said the divorce was “ at theinstance of ” even if it was “ with the consent of 11 the wife. Thewife had good ground for leaving appellant, and he. was orderedto pay maintenance. He nevertheless sought to get her to returnto him, and he informed the Lebbe at the mosque, who celebratedthe marriage, and who was a witness in this case, that, as sherefused to come, he would utter “ tollok- ” It is true that thewitness states the wife consented to this being done, but-1 can see-nothing on the record to suggest .that the wife was- not satisfied*to continue as she was with her order for maintenance. . It was-rather the appellant who wished .to change the position in whichthey were and divorce her if she did not come back. These circum-stances in my opinion do not justify a finding that the divorce wasat the instance of the wife. A “ khula ” divorce is defined inTyahjif8 Muhammedan Law, p. 155, section 162, as one where thewife alone is desirous of having the marriage dissolved,. Here 'bothparties were on the evidence so desirous, the husband clearlyplaying .the principal part and the wife offering no objection. 1have come .to the conclusion, therefore, that it was not a khuladivorce, and no case for any claim by* defendant for' double' maggar ” can arise.
With regard to the-claim for “maggar,” a term admitted to be thesame as “ maskawien ” in section 86 of the Code of MuhammadanLaw, Vol. 1. of the Ordinances, p. 42, and which was examinedand defied by Jayawardene J. in Beebee v. Pitche, 1 the argumentfor appellant has been on the basis tLat the divorce is a V khula.”divorce. Even in the trial Judge’s finding, with which, as statedabove, I do not agree, the learned Judge has given authority tosupport his conclusion that on the facts found here the wife wasentitled- to the payment she claims. On the footing that it wasnot 'a “ khula ” divorce her position is of course much stronger,and it has not been contended for the- appellant .that in such a caseplaintiff is not entitled to the “ maggar ” she claims.
With reference to the claim for “ kaikuli, ” it is conceded for theappellant that the authorities are against him, but it is urged £hatthe same authorities have erred in regarding 4‘ kaikuli ” as thesame as “ maggar- ” “ Kaikuli ” is stated to be a present receivedby the bridegroom from the bride’s father in consideration ofmarriage. In the course of his judgment in Pathumma v* Cassini ?de Sampayo J. does appear on more than one occasion to use the-two terms as almost synonymous, but when referring to counsel’sargument he clearly distinguishes between the .two, whilst if the factsin that case, which he sets out, be read, it is clear the ” maggar "i 26 N. L. R. 277.* 21 N. L. R. 221.
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he refers to is a payment by the husband to the wife on the marriage,which he calls “ dowry money M and which remains in the husband’shands, whilst the “ kaikuli, ” which he calls “dower,” is a paymentby the parents of the bride to the husband. This he says is held intrust by the husband for the wife, both “ maggar ” and “ kaikulibeing recoverable by the wife in the eventualities set out. Counselhas stated that *' kaikuli ” is unknown to the Muhammedan lawand is not mentioned in the text books. However that may be,it is not suggested it is not recognized by custom in Ceylon, whilstthere is no doubt that it has been the subject of judicial decision.Counsel has cited nothing against those decisions to show that" kaikuli " is not recoverable by the wife in case of such a divorceas we have here.
With regard to the third item, maintenance during seclusion,it is provided by section 89 of the Code of Muhammedan Law abovereferred to, that the husband after .the divorce must furnish thewife with a dwelling place for a space of three months. It has beenurged for appellant that during .that period plaintiff did not observeseclusion and that therefore he is not liable for the sum. I aminformed that there is no reported case dealing with this question of“ iddat, ” but I have been referred to the Manual of MuhammedanLaw, Minhaj et Talibin, where at p. 372 it is set out how thisseclusion must be observed. I can find no evidence here to showthat the seclusion has not been observed so far as lay in plaintiff'spower. It is true she had to move from one house to anotherduring the period, but that was for the very good reason that thehouse where she was living was demolished and she had to go to heruncle’s house. I see no reason to differ from the Commissionerwith regard to his finding on this point.
For these reasons the appeal must be dismissed with costs.