RABIA UMMA v. SAIBU

109-NLR-NLR-V-17-RABIA-UMMA-v.-SAIBU.pdf


( HHA )
1M4.
Pretent: Wood Benton A.C.J. and De Sampsyo A.J.
RABIA UMMA v. SAIBU.
71—D. O. Kdndy, 3,019.
Muhammadan law—Right of wife to divorce husband on the ground ofdesertion—Expert evidence.
The Sbafei law, which is applicable to Moormen in this Colony,recognises the right of a wife in certain . circumstances to divorceher husband on the ground of desertion.
The case was sent back to ascertain how far, if at all, and subjectto what conditions, that right has been admitted as a matter ofcustom in Ceylon.
A
PPEAL from a judgment of the District Judge of Kandy(P. E. Pieris, Esq.). The facts appear from the judgment of
Wood Benton A.C.J.
Hayley, for the intervenient, appellant.—The appellant, priorto her marriage with Ossen Saibu Mohamadu, had dissolved hermarriage with Ahamadu Lebbe, and is therefore the legal wife ofOssen Saibu. Husband's inability to maintain or desertion is agood ground for divorce under the Muhammadan law. The wifemay divorce the husband for desertion without the intervention ofCourt. Counsel cited Amir Ali'x Muhammadan Law, vol. II.,p. 25 ; Tyabji’s. Principles of Muhammadan Law 168; Muham-madan Code of 1806, sections 92 and 98; Agesha Umma v. AbdulCarim1; Bandirala v. Mairuma Natchia 2.
If the evidence of the nature of the ceremony required for adivorce is insufficient, the case may be sent back for further evidenceon that point.
Bawa, K.C. (with him J. W. Silva), for the petitioner, respondent.—It is not open to a Muhammadan wife to get a divorce from ahusband without an order of a Judge. There is no reason shownfor not having led all available evidence at the trial, and for obtainingan indulgence from this Court to lead further evidence.
Counsel cited Nell's Muhammadan Law 44 a,nd 45; Tyabji,p. 170 (a. 211); Muhammadan Code of 1806, sections 74 and 75.
Hayley, in reply.
Cur. adv. xwit*
July 24, 1914. Wood Renton A.C.J.—
The question involved in this case is whether the intervenient,the appellant, Rabia Umma, was one of the legal wives of Ossen
1 (2880) 4 S. C. C. 13.* {1912) 26 N. L. R. 23$.
( 839 )
Saibu Mohamadu, who has died intestate, and** whose estate isbeing administered by the petitioner, the respondent, his son-in-law.
The learned District Judge has held that Ossen Saibu Mohamaduwas legally married to the appellant, and that they lived together
as husband and wife for some years, until his death, but that the Bahia Ummaappellant, before her marriage to Ossen Saibu Mohamadu, was the Sa^lawful wife of Ahamadu Lebbe. The respondent does not disputethe former of these findings for the purpose of this appeal, and theappellant accepts the latter. She contends, however, that, prior toher marriage with Ossen Saibu Mohamadu, her former marriagewith Ahamadu Lebbe had been dissolved by her own act on theground of his desertion. The learned District Judge held, on thematerials before him, in the first place, that it was not competentfor the appellant under Muhammadan law .to dissolve her marriage,with Ahamadu Lebbe in the manner which she indicated, and, inthe next place, that even if such a dissolution could have beenlegally effected, the evidence was insufficient to show that it hadtaken place.
In regard to both of these points, the findings of the DistrictJudge are, on the evidence with which he had to deal, in my opinion,quite right. The appellant did not call the Hadjiar, who, accordingto her, administered to her the oath of renunciation. Her witnesses,
Mohamadu Tamby and Ana Mohamadu Lebbe, had the vaguestpossible recollection of the character of the ceremony which theysaid they had witnessed. The evidence of Habibu Lebbe wasobviously interested, and although the Lebbe by whom the appellantwas married to Ossen Saibo was called, not a single question wasput to him on her behalf with a view to showing that, according tothe Muhammadan Code of 1806, a wife could divorce her husbandon the ground of desertion without his consent.
After careful consideration, however, I have come to the con-clusion that the case is one in which the appellant might fairly beallowed, on strict terms as to costs, the benefit of a further inquiryin the District Court. The Moormen of Ceylon belong to the Shafeisect (see Amir Ali’s Muhammadan Law, vol. IIp. IS, and MangandiUmma v. Lebbe Marikar 1). According to Shafei doctrine, it wouldappear that a deserted wife has a right to a divorce on the ground ofher husband’s desertion, and it is stated that the Kazi may cancelthe marriage in such a case, although the husband is absent (c/.
Amir AU, vol. II., pp. 364-365 ; Hamilton's Hedaya, vol. II., p. 397 ;and Tyabji's Principles of Muhammadan Law 16S.) Sections 92and 93 of our own Muhammadan Code would seem to recognize asimilar right under circumstances which are not very clearly defined,and although the question whether a divorce of the character thatwe are here concerned with is competent in Ceylon was raised inAgeska Umma v. Abdul Carim,2 it still remains undecided. So much
1914.
Wood
Rehton
A.C.J.
(1906) 10 N. L. B. 3.
* (JSS0) 4 Sf C. C. 13.
( 340 )
1914.for the law. On the foots, we have in the appellant's favour the
'•*Wqpdcircumstances that Ossen Saibu, to whom the learned District Judge
iiBNTONgives a high character, is proved to have married her and to have
lived with her as his wife until his death, and that according toHabia Drama Noohu Lebbe, who celebrated the marriage between them, andv. Saibux agked the bridegroom if his intended bride had another husband,the bridegroom replied that she had had another husband but haddivorced him. In the case of Pitche Umma v. Modely Atchy,l theSupreme Court* attached some weight to an admission of this kindwhen made by a defendant in proceedings raising a similar issue.Perhaps the admission above referred to should not be excludedaltogether from consideration when it was made by an intestatethrough whom the respondent claims, and when the only questionis Whether or not there should be a further inquiry.
On the ground that I have stated I would set aside the orderunder appeal, and send the case back for further inquiry andadjudication in the District Court on the sole question whether ornot the appellant was divorced from Ahamadu Lebbe. NoohuLebbe should certainly be examined as a witness, and I wouldleave it open to either side to call whatever additional evidence asto either the custom of Ceylon Moormen in this matter or the factof a divorce having been effected may be considered desirable.The appellant must pay all costs of this appeal, and the costs of theoriginal proceedings in the District Court, except in so far as thosemay be attributable to the proof of her marriage with AhamaduLebbe and her subsequent marriage with Ossen Saibu. As to anycosts so attributable, the order of the District Judge should stand.
I have not lost sight of the question whether, and, if so, how far,expert evidence as to .the interpretation of the Muhammadan Codeof .1806 should be admitted. There is no doubt but .that it has longbeen the practice of the supreme Court to allow evidence to be takenas to what the customary law in force in this Colony is where un-certainty on the point exists. This practice (to go no further back)i.s recognized in In re Segu Meera Lebbe Ahamadu Lebbe Marikar2and Cas'sim v. Pena, Tamby.3. The recent decision of Sir AlfredLascelles C.J. and Ennis J,. in the case of Lebbe v. Tham&en-4 mightat first sight appear to be in conflict with it. It was there heldthat, on a question of pure law as distinguished from questions ofusage or practice, where our Code of Muhammadan law is silent,the proper course is to refer to the standard text books on thesubject, and not to resort to the opinions of experts. It seems tome, however, that the present case really comes within the categoryof questions of custom or usage. I have endeavoured to show abovethat the Shafei law, which is applicable to Moormen in this Colony,does recognize the right of a wife in certain circumstances to divorce
> (1850) 3 Lorz, 261.
* (1890) 9 S. C. C. 42.
3 (im) 2 N. L. R. 200.M1912) 16 N. L.R. 71.
( 841 )
her husband on the ground of desertion. That right is partiallyrecognized in sections 92 and 93 of the Muhammadan Code itself.What has to be ascertained is how far, if at all, and subject to whatconditions, it has been admitted as a matter of custom in Ceylon.
Da Sampayo A.J.—
This appeal raises several important questions under the Muham-madan law as prevailing in Ceylon. Shortly stated, they are (1)whether and for what causes a married woman can obtain a divorce■ without the consent of her husband; (2) whether a decree of Courtis necessary for that purpose; and (3) if not, what are the formalitiesthat should be observed.
Section 75 of the Muhammadan Code of 1806 states: “ The bridewishing to be divorced is obliged to inform the priest thereof, who,after having deliberated with the commandants on both sides in thepresence of the native commissioners, accedes to the divorce, whichthey are obliged to record; should the parties, however, not wish toabide by the decision, they shall be at liberty, according to custom,to lay their case before the competent Judge.M The “ commandant "and the “ native commissioners ” are no doubt those referred to insOotions 70 and 71, whose intervention was required for the purposeof the marriage itself. The matrimonial affairs of the Muham-madans in those days would appear to have been strictly regulated,but these restrictive regulations have long since fallen into disuse,and the machinery provided no longer exists. Section 75, however,refers not to ordinary cases of divorce, but rather to proceedingsin the nature of nullity of marriage for causes mentioned in . section74. In the present case a divorce is said to have been obtained fordesertion and for failure to maintain the wife, and the sections moreapplicable to the case are 92 and 93, which, broadly read, seem tome to recognize the right of the wife to obtain a divorce for thecauses just mentioned. This is in accordance with the generalMuhammadan law as gathered from the recognized text books.See Hamitton*8 Hedaya, vol. ILt p. 397; Amir Alt 8 MuhammadanLaw, vol. II., p. 25; Tyabji’s Principles of Muhammadan Law168. The question as to the necessity for the intervention of a'Judge is somewhat more difficult. The Hedaya puts it as if it isfor the husband primarily to divorce his wife if he cannot maintainher properly, and if he does not do so, then the Kazee (i.e., theJudge) is to effect the separation as his substitute. Amir Ali,however, distinguishes between the Mutazalas and the principalschools (i.e., the Shafees and Shiahs), and says that the essentialpoint of difference consists in the fact that, according to theMutazalas, the order of a Judge is in every case necessary to consti-tute a legal divorce, and that therefore “ a divorce is held to beinvalid until confirmed by or effected in the presence of the Hakim -ush-sharaa.” The last sentence here cited appears to show that
1914.
Wood
Renton
A.C.J.
Rabia Untmav. Saibu
*914.
Db Sampayo
AJ.
Rc&ia Umma*. Saibu
( 842 )
all that is absolutely required, even according to the Mutazalas, isthat the divorce should take place in the presence oi a Judge.Moreover, the Hakizn-ush^sharaa or Kazee in this connection is notthe Judge of a Court in the ordinary sense, but one having quasi-judicial authority among Muhammadans in matrimonial matters.However that may be, the point is that, according to the Shafees,to which the Ceylon Muhammadans belong, an order of a Judge ishot required. Tyabji, ubi supra, is explicit on this point, for helays down that 44 under Shiah and Shafee law a marriage may beannulled by the wife .without the intervention of the Court on anyof tjhe following grounds,” and then he proceeds to state the ground,among others, 41 according to Shafee, but not under 1 Shiah law/the husband's inability to provide maintenance for his wife.” AmirAH (page 451) shows that the inability may be wilful or otherwise.
In Agssha Umma v. Abdul Carim/ the question' as to whethera Muhammadan wife could maintain an action for divorce on theground of malicious desertion was discussed. But the main pointconsidered was as to the applicability of the Ordinance No, 6 pf1847 to Muhammadans, and no decision was given on the generalquestion under the Muhammadan law. The Court there ratherdepreeated reference being had to text books on Muhammadanlaw, but this practice has been recognized and sanctioned byLebbe v. Thameen 2 when the subject is one of pure law or wherethe Muhammadan Code is silent or obscure, and I think that in thepresent case the somewhat imperfect provisions of the MuhammadanCode may rightly be elucidated and completed by the references 1have above made. As to the necessity of the order of a Judge, itmay be noted that the Code, while section 75 in the case of nullityof marriage refers a wife in the last resort to ” a competent Judge,”nowhere requires it for the purpose of a divorce under sections 92and 93, and in illustration of how even the express provisions of theCode must of necessity be sometimes modified I may mentionPitche Umma v. Modely Atchy,3 where it was held that in the absence,since the time of the British Government, of an official corre-sponding to the “ commandant,” the recording of tollocks undersection 90 was no longer required, and that the fact of divorce maybe proved by oral evidence.
I think that these authorities and considerations indicate thatthe wife, as much as the husband, may obtain a divorce before thepriest by going through the proper formalities, but as the case isgoing back for further proceedings the matter may well be leftopen, so that the law as understood and applied among the Muham-madans in Ceylon may be more definitely ascertained. What theformalities are, so far as the evidence in this case goes, is a matterof some uncertainty. The witnesses appear to speak of some form
1 (1S80) 4 8. C. G+U.* (1912) 16 N. L. R. 7l.
* (1850) 3 Lon. 261.
( 343 )
of declaration by the wife, repeated three times before the priest, 1914,which they refer to as passe or paffor. The District Judge is right pE Sampayoin considering the evidence as unsatisfactory, both as. to what the A.J.
formality is and as to whether it was observed in this case. But in D.1.-i rr[r
view of the fact that on the basis of a legal divorce the deceased vr SaibuOssen Saibo Muhamadu, whose estate is administered in this case,bona fide married the appellant and lived with her until his- death,and in view also of the fact that the issue to which the parties'attention was principally directed in the Court below was only as tca real marriage between the deceased and the appellant, I think that-the appellant should have a further opportunity of- satisfying theCourt on the above . points. The District Judge at such furtherinquiry should examine the Lebbe or priest who took part in theceremony, and any witnesses whom either party may wish to call.
I would set aside the judgment appealed against and send thecase back for further proceedings. I agree to the order proposedby the Chief Justice as to costs.
Semi back.