075-NLR-NLR-V-54-SEYED-MOHAMED-Appellant-and-MOHAMED-ALI-LEBBE-Respondent.pdf
Seyed Mohamed v. Mohamed AH Lebbe
307
1953Present: Gunasekara J.
SEYED MOHAMED, Appellant, and MOHAMED ALI LEBBE,
Respondent
S. G. 565—Board of Kaihis Appeal 488
Muslim Marriage and Divorce Registration Ordinance (Cap. 99)—Section 21—Maintenance—Claim on behalf of wife—Quantum, of proof necessary—Orderof maintenance—Date from which it is operative.
A wife who leaves her husband’s house without valid and sufficient reasonis not entitled to claim maintenance from her husband under section 21 of theMuslim Marriage and Divorce Registration Ordinance.
An order for payment of maintenance made under section 21 of the MuslimMarriage and Divorce Registration Ordinance is effective only from the datewhen it is made and not from the date of the application. It contemplatesonly maintenance after the time of the order and cannot include reimbursementof any expenditure incurred previously..
.^^.PPEAL from an order of the Board of KLathis.
M. Rafeelc, for the appellant.
S. A. Marikar, with D. AbayawicTcreme, for the respondent.
Cur. adv. wit.
308
GUNASEKABA J.—Seyed Mohamad v. Mohamed JLli Lebbe
February 5, 1953. Gitnasbkaua J.—
This is an appeal under section 21 (3) of the Muslim Marriage andDivorce Registration Ordinance (Cap. 99), taken with the leave of thiscourt, against an order made by the Board of Kathis affirming an orderof maintenance made by the ELathi Court of Harispattu. The orderdirects the appellant to pay a sum of Rs. 30 a month in respect of his wifeand Rs. 20 in respect of his child, and purports to be effective from thedate of the application.
The appellant and his wife were married about October, 1949, and thechild, a daughter, was bom about August in the following year. Fromthe time of their marriage they had been living in the house of her parents,in the village of Akurana, and in September, 1950, they went to the houseof his parents, in the neighbouring village of Bulukohotenne, taking thechild with them. About 24 days later (on the 19th October, 1950,according to her father) she left him and returned to Akurana with thechild. From that day she has lived in separation from him and he hasnot maintained her or the child. The present action for maintenancewas instituted by her father on her behalf on the 21st October, 1950.
The appellant and his wife are both agreed that they had lived happilytogether until they went to his parents’ house in September, 1950. Therehe discovered that she had left behind some of her jewellery, consistingof several rings that he had given her and a pair of gold bangles thathad been given by her father. He went back to fetch them, but herfather said that he did not know where they were. It is common groundthat the appellant was displeased about the loss of this jewellery, whichaccording to his wife she had left in an almirah in her parents’ house.The parties are disagreed, however, as to the circumstances in which theyceased to live together. According to the appellant, bis wife’s parentsvisited them frequently and pressed them to come back, but he insistedon the missing jewellery being returned first, and eventually she wentback with her father. Her case is that she left because she was beingill-treated by the appellant.
Counsel for both parties are agreed that the appellant’s wife would notbe entitled to maintenance if she failed to prove that she had a validreason for leaving the conjugal domicile.
“ When the woman abandons the conjugal domicile without anyvalid reason she is not entitled to maintenance. Simple refractoriness,as has been popularly supposed, does not lead to a forfeiture of her
rightBut if she were to leave the house against his will without
any valid reason, she would lose her right, but would recover it on herreturn to the conjugal domicile. What is a valid and sufficient reasonfor the wife to leave the husband’s home is a matter for the discretionof the Judge. As a general principle … .a wife who leaves her hus-band’s house on account of his or his relations’ continued ill-treatmentof her. .. .continues entitled to her maintenance ”.—-
Ameei All : Mahommedan Law (fifth edition) Vol. II, p. 419.
It was therefore necessary for the Kathi Court to decide whether theappellant’s wife had a valid and sufficient reason to leave the appellant.
GTXNASEKARA J—Seyed Mohamad v. Mohamad AM Lehba
309
It appears from the order made by the Kathi, however, that the courtfailed to appreciate the relevancy of this question to the issue regardingher right to maintenance. He holds that while the loss of the jewelleryled to “ several disputes between the parties ” and “ there is no lack ofevidence to show that the applicant’s daughter was abused and ill-treatedby the respondent ”, yet “ all these things have not much bearing on thiscase, which is only a claim for maintenance from the respondent dor hiswife and child He proceeds to holddhat the appellant has failed tomaintain his wife and child, and jo consider what he should be orderedto pay for their maintenance. There is no finding on the question as towhether the appellant’s wife had a valid reason to leave him, or a dis-cussion of the evidence regarding the alleged ill-treatment. The orderof maintenance in respect of the wife therefore cannot stand.
The evidence of ill-treatment consists solely of that of the appellant’swife, who stated that “ the whole period of 24 days was a continuity ofpunishments and abuse ”. The specific acts which she imputed to theappellant, however, were merely that on the third day after they wentto Bulukohotenne, he complained that she was wasteful because shecould not make a pound of dry fish go as far as his mother could ; thathe blamed her for their child being a girl; and that on one occasion heassaulted her. According to her, after the appellant returned fromAkurana without the bangles and rings he insisted on her handing tohim all her valuables, and on the following night he and his mother andsister assaulted her in an unsuccessful attempt to remove her thali fromher neck. She says that she cried and a number of people collected there,and that but for them she and her child might have been killed. Honeof these persons however, who could have given valuable evidence ifher story was true, were called as witnesses. She also says that on thenext morning, which was three days after she had gone to Bulukohotenne,her father came there to see her, but the appellant prevented her fromspeaking to him and he went away to complain to the headman. Herfather contradicts her however, for according to him it was in the appel-lant’s absence that he visited his daughter, and she did have a conversationwith him. He found her weeping, he says, and when he asked her thereason she said that all the jewellery worn by her had been taken awayby the appellant with the help of his mother and sister. He questionedthe neighbours and they “ corroborated ” her and he then complainedto the headman. Had the KLathi Court given its mind to the questionwhether the appellant’s wife had any valid reason to leave the conjugaldomicile I do not think that upon the evidence they could have reasonablyheld that she had such reason. In my opinion there is no sufficientground for a fresh inquiry.
The only point for consideration as regards the. order respecting thechild is whether the KLathi had the power to direct that it should beeffective from the date of the application. A provision to the effectthat a Quathi should have such power is contained in section 36 of theMuslim Marriage and Divorce Act, No. 13 of 1951, which has not yetbeen brought into operation. There is no similar provision in the presentordinance, and in the absence of such a provision it seems to me that the
310
SWAN" J. —Sivm Pillai v. Commissioner for the Registration of
Indian and Pakistani Residents
power to make an order of maintenance must be taken to contemplateonly maintenance after the time of the order and not also reimbursementof any expenditure incurred previously.
I set aside the order of maintenance in respect of the appellant’s wife,and I affirm the order for payment of maintenance at the rate of Us. 20a month in respect of his child, subject to the variation that it shall beeffective only from the date of the order, namely, the 14th July, 1951.I make no order as to costs.
Appeal allowed.