020-NLR-NLR-V-57-SOWDOONA-Appellant-and-ABDUL-MUEES-Respondent.pdf
1955Present : Gratiaen, J., and Sansoni, J.SOWJDOONA, Appellant, and ABDUL MUEES, Respondent-S'. C. 35 of JO-53—D. C. Matara, 21,473
Jurisdiction-—Muslim hue—Kaikuli—Action- for repayment of it.—Court uherc theaction may be instituted—Civil Procedure Code, s. 0.'
A Muslim husband's obligation to return tho kaikuli- to his wife oil demandis first undertaken by him at tho place whoro ho marries her.
A Muslim liusband who had deserted his wife was sued by tho; wife for thorecovery of Its. 1 ,f)00 that had been paid to him as kaikuli at Gidto a fow daysbefore they were married. The marriage was celebrated at- Matara. Theplaintiff resided at Matara, anil tho defendant at Oalle, when flic actioncommenced.•
Meld, that tho District Court of Matara had jurisdiction to hear tho cose.■Scope of the rule that tho creditor must seek out tho debtor ” examined.
-A.PPEAL from a judgment of the District Court, Matara.
//. If. Jatjeicardene, Q.C., with 31. I. 31. Hnnifftt, 31. I. 31. Cassimand A. C. 31. Uvais, for tho plaintiff appellant..
A. 31. Amcen, for tiie defendant respondent.
Cur. ndv. vidt.
March 4, 1955. Geatiaen, J.—'
The plaintiff, who is a Muslim lady, sued the defendant (her husband)in this case for the payment of Rs. 1,500 paid to him as kaikuli a few daysbefore they were married. . The marriage was celebrated at Matara andstill subsists although the parties have separated. She resided at Matara,and he at Gallo, when this action commenced. The money had beenreceived by him from her parents at Galle.
The only ground on which the plaintiff’s claim was dismissed was that,in the learned Judge’s opinion, tho cause of action arose at Gallo (wheretho defendant resided) because, under the Rom an-Dutch law, it is “ theduty of iho creditor to seek out the debtor With great respoct, therule is not quite so rigid. Performance of a contract vial obligation mustprima facie be made where tho obligation was contracted, unless anotherplace of performance has been expressly or impliedly agreed. Lee'sRoman-Dutch Late (5th odd p. 25S ; Haniffa v. Ocean Accident andGuarantee Corporation Ltd. 1 I should bo very surprised indeed if theprinciples' of a civilised system of jurisprudence would automaticallyentitle a Muslim husband who had descried his wife to insist that shemust seek him out in order to obtain satisfaction of her just demands.
But apart from these considerations, I am satisfied that the DistrictCourt of Galle did not have exclusive jurisdiction to try this case. Kaikuliis a sum of money given by the parents of a Muslim bride to her intendedhusband. Once the marriage lias taken place, he owns it but is neverthe-less liable to pay it over to the wife if she demands it, even during thesubsistence of the marriage. Vandcrslraaten's Reports 1G2. This isan incident of a Muslim marriage according to a well-recognised customin Ceylon. S.ampayo, J., took the view that the money is held in trustby the husband for the wife—Pathummu r. Cassini and this opinionwas adopted by the judges who decided Pathumma v. Idroos 3, andZainabu Natchia v. Usoof Mohamadu 4. Perhaps an equally acceptabletheory is that the husband undertakes, upon his marriage, an impliedcontractual obligation to pay (he money to his wife whenever she demandsit or, if she dies, to her heirs. But in either view, it seems clear to methat the obligation to pay the money to the tcife is not finally imposeduntil the marriage has actually taken place ; until then, the intendedhusband holds it in trust for her parents to whom ho must return it if themarriage, for whatsoever reason, should not take place.
I therefore conclude that the defendant’s obligation to pay the kaikulito tho plaintiff on doxnand was first -undertaken at Matara whero hemarried her. If the obligation be equated to an obligation in the natureof a trust, tho English law applies, and the trustee debtor must- seek ou«tho beneficiary in order to discharge the trust. Alternatively, there wasa breach of a contractual obligation undertaken at Matara. In thatevent, the action was properly instituted in tho Court within whosejurisdiction “ tho contract sought to bo enforced was mado ”. Section9 of the Civil Procedure Code. For either reason, the learned District
1 (1933) 36 A'. L. B. 216.3 (1929) 31 Ar. L. Ji. 230.
1 (1919) 21 K. L. B. 221.* (1936) 3S K. L. B. 37 at 46.
Judge should, in accordance with his findings oil tho merits of tho dispute,havo entered a decree for the plaintiff. I would theroforo allow thoappeal and enter judgment in her favour as prayed for with .costs inboth Courts.—
Appeal allowed.
San Sun r, J.—I agree.