110-NLR-NLR-V-73-R.-PALLITHAMBY-Petitioner-and-M.M.-SAVIRIATHUMMA-Respondent.pdf
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Pallithamby v. Saviriaihumtna
Present: Sirimane, J.f and Wijayatilake, J.
R. PALLITHAMBY, Petitioner, andM. M. SAVIRIATHUMMA,. Respondent
S. 0. 483/68—Application for leave to appeal in Quazi TribunalKaravaku and Nintavur No. 1936, Board of Quazis. .
. Appeal No. 602/R
Muslim ■ Marriage and Divorce Act '{Cap. 115), as amended by Act No.' 1. of 1965—Sections 2, 47 {!) (c), 48—Liability of a Muslim to maintain his illegitimatechild—Jurisdiction of a Quazi—Maintenance Ordinance (Cap.~91), al 2.
■ A Muslim in Ceylon is liable to maintain his illegitimate child.
Section 47 (1) (c) of the Muslim Marriage and Divorce Act, as amended bysection 6 of the amending Act Mo. 1 of 1965, empowers a Quazi to adjudicate. upon a claim for maintenance made on behalf of an illegitimate child, when -.-.the mother of the child and the person from whom thov maintenance is claimed; are Muslims.' In such a case, section 4 of the Act'provides that the jurisdictionexercised by a Quazi is exclusive.
S1RIMAXE, J.—Pallithamby v. Saciriathupima
Application for leave to appeal from a decision of a Board ofQuazis.
A. A. 21 Murleen, for the respondent-petitioner.<r,
21. S. 21 .Nazitm, with 21. Avieen Ismail, for the applicant- respondent.
Our. udv. vult.October 2S, 19G9. Sirimaxe, J.—
It is conceded that the amendments to section 47 (1) (c) of the MuslimMarriage and Divorce Act introduced by section G of the Amending Act,No. 1 of 1965, empower a Quazi to inquire and adjudicate upon a claimfor maintenance made on behalf of an illegitimate child when the motherof the child and the person from whom maintenance is claimed areMuslims—“notwithstanding anything in section 2” of the main Act.Under section 2 the Act was applicable only to Muslim marriages anddivorces and other matters connected therewith. Perhaps it may havebeen better to provide for maintenance for Muslim children born out ofwedlock in a separate Act, but the amendment does have the effect ofproviding for such children despite any limitations in section 2.
In support of the application for leave to appeal, the only groundurged was that a Muslim in Ceylon was not liable to maintainhis illegitimate child.
Reliance was placed on statements in Tyabji on Muhammadan Law,3rd .Edition, page 312, where it is said—
" Muhammadan Law appears to impose no burden upon the naturalfather of an illegitimate child ”
and in Outlines of Muhammadan Law by Fy'zec who saj-s at page 185,
“ Under Muhammadan Law a father is under no obligation tosupport or maintain an illegitimate child ; ”but the learned author adds immediately afterwards,
"The Code of Criminal Procedure, section 4SS provides that theputative father of an illegitimate child can be ordered to pay a sumnot exceeding Rs. 100 per month by way of maintenance.”
In fact, Tyabji, loo. refers to this liability of a Muslim to maintainillegitimate children under the Criminal Procedure Code of India.
Section 2 of our Maintenance Ordinance of 1SS0 Chapter 91 is in exactlytlie same terms as section -JSS referred to above. So that the samestatutory liability as in India is imposed here on a person whether he isa Muslim or not.
574ALLES, j.—The Group Superintendent, Dolma Group, Italgranoya t>.
Ceylon Estates Staffs’ Union
Ameer Ali on Mohammedan Law (Cth Edition) says at- page 3S5,
“ In case the father wilfully neglects and deserts his children,legitimate or illegitimate,.and refuses to maintain them when hehas the means, he is liable to punishment at the discretion of theKazi. Under the Code of Criminal Procedure in force in India, theMagistrate has the jurisdiction to order maintenance in the case ofboth legitimate and illegitimate children."
Counsel for the proposed Appellant (the father) conceded that theappellant would be liable in proceedings under the Maintenance Ordinance.Section 4S of Chapter 115 provides that the jurisdiction exercised by aQuazi under section 47 is exclusive, and the applicant (the mother)has sought her remedy in the correct forum.
The application for leave to ajjpeal is refused with costs.
Wijayatilake, J.—I agree. '
Application ref used.
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