078-NLR-NLR-V-23-PATHUMMA-v.-SEENI-MOHAMMADU.pdf
Present: Shaw J.
PATHUMMA v. SEENI MOHAMMADU,
411—P. C. Batiicaloa, 8,699.
Maintenance Ordinance, 1889, s. 4—Application for maintenance byMuhammadan wife—Offer by husband to take her back—Refusalof wife to live with husband as he was living with another wife.
A Muhammadan wife, who refuses to live with her husband onthe ground that he is living with another wife, is not‘entitled toclaim maintenance, as he is not guilty of adultery by so doing.
rpfiii facts appear from the judgment.
J.Joseph, for the appellant.
Arulanandan, for the respondent.
May 12,1921. Shaw J.—
This is an appeal from an order of the Magistrate directing thehusband to pay maintenance for his wife and child under section 3of the Maintenance Ordinance, 1889. The parties are Muham-madans, and were married about five years ago. About four yearsago the respondent married a second wife, as he was entitled to dounder the provisions of the Muhammadan law. Disputes wouldthen appear to have arisen between the parties, which ended in thehusband deserting the applicant: Some time after her husbandreturned and lived with her for seme period, the length of which isnot very clear from the evidence in the case. After some timedifferences again arose, which caused the respondent to leave theapplicant, and the applicant took these proceedings for maintenanceunder section 3 of the Ordinance. At the hearing of the applicationthe respondent appeared and said that he was willing to take backand support the applicant if she would come and live with him.To this the applicant replied alleging habitual cruelty, and sayingthat the husband. Was living with his second wife, and that sherefused to share her husband with another woman. The Magistrateafter hearing the evidence found, as a fact, that the applicant hadfailed to show the necessary cruelty on the part of her husband, buthe held that she was entitled to refuse to return to him, as he had' asecond wife. He, therefore, made the order for, maintenance, not-withstanding the respondent’s willingness to take back the applicantand the child. The Maintenance Ordinance provides that in thecase of proceedings of this character, if the respondent offers tomaintain his wife and children on condition of her living with him,
( 278 )
1921.
Shaw J.
Pathvmmav, SeeniMohammadu
the Magistrate may consider any ground of refusal stated by her,and may make an order under section 3, that is to say, an orderfor maintenance, notwithstanding such offer if the Magistrate, issatisfied that the respondent is living in adultery, or that he ishabitually treating his wife with cruelty. There are, therefore, twogrounds only from which the Magistrate may make an order, not-withstanding the offer of the respondent to take back his wife:one is adultery, and the other is habitual cruelty. I do not thinkthat I can interfere with the finding of the Magistrate with regardto habitual cruelty. The only other ground, therefore, which canjustify the order is that the respondent is living in adultery. Theapplicant has failed to show that in this case. A Muhammadan isentitled under the provisions of the Muhammadan law, which hasbeen incorporated with the law of this Colony, in reference topersons of that community to have more than one wife, and he isnot guilty of adultery if he marries more wives than one. Itappears to me, therefore, that neither of the two essentials, whichwould justify an order under section 3 of the Ordinance, are shownto exist in the present case. I am asked on behalf of the wife toextend the law as set out in the Maintenance Ordinance and asprovided for under the Muhammadan Code. I am asked to saythat, at the present time, these matters should be looked at in asomewhat different manner from that in olden days, and thatCourts ought to give effect to the laudable desires of a woman,Who is married to a Muhammadan man, to refuse to live with himif he takes a second wife. I am afraid it is beyond my duty to doanything of the sort.
If an alteration of the law of maintenance is necessary withregard to Muhammadans under modem, conditions, the law mustbe altered by the Legislature, and not stretched by myself. Asomewhat similar case came before Wendt J. in the case ofMammadu Nachchi v. Mammatu Kassim.1 In that case it was heldthat the mere fact of a married Muhammadan man keeping anunmarried woman as his mistress was not good reason in law for hiswife refusing to live with him and claiming separate maintenance.It was held, further, that the husband had no right to ask the wifeto come and live in the concubine’s house. That, of course, is adifferent state of things to that which is shown in the present case.It is true that under the Muhammadan law it is not adultery on thepart of a Muhammadan to keep a concubine. But the position ofa concubine is quite different under the Muhammadan law fromthat of the wife. She is of a lower class, and to ask a wife to goand live, as the husband did in that case, in a house belonging to hisconcubine, and to associate with her on equal or even inferior terms,is not offering to take her back and support her in the Way that iscontemplated by the Maintenance. Ordinance. The position is,
'(2922) 25N.L.R.297.
however, different in the case of a man keeping two lawful wives,and one knows that in certain oases where a wealthy man has anumber of Muhammadan wives, they do live together in the sameharem. To hold that a wife is entitled to leave her husband’shouse and to recover by law maintenance for living elsewherewould be, I think, to make a very great change in the Muhammadanlaw and custom, and that would be the effect of the decision in thiscase if I should maintain the Magistrate’s judgment. In myopinion the order cannot be supported, and the appeal must beallowed.
1921.
Shaw J.
Pathummav. SeeniMohammadu
♦
Appeal Mowed.