021-NLR-NLR-V-10-SULE-AMMA-v.-MOHAMMADO-LEBBE-PADILY.pdf
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Present: Mr. Justice Wendt and Mr. Justice MiddletonSULE AMMA u. MOHAMMADO LEBBE PADILY.
P. C., Kandy, 7,128.
Mohammedanhaw—Divorce—“ Tollok **—“ Lettersof Divorce ”—
Mohammedan Coda of 1806, 83. 87, 88, 80.
Held, that the expressions “ tollok " and “ letter© of divorce ”used in section 87 of the Mohammedan Code of 1806 are notsynonymous, but that the latter is merely explanatory of theformer,
• Hetd, also, that “ the tollok " may be given orally.
Kadijah Umma v. Mohamado Mawlana (1) approved.
Where a Mohammedan wishing to divorce his wife pronouncedthe tollok three times in his wile's absence and afterwards informedthe priest-by writing that he had divorced his wife, and the priestcommunicated that fact to the wife,—
Held, that there was a valid divorce.
T
HIS was an application under section 3 of Ordinance No. 19 of1889 for maintenance by a Mohammedan woman for herself
and her child against the defendant, who, she alleged, was her lawfulhusband. The defendant pleaded that he had divorced the applicantaccording to the Mohammedan Law. The defendant in his evidencestated that he pronounced the tollok three times one aft.er the otherin the presence of certain witnesses, but not in the presence of. hiswife, and that on that very day he wrote the following letter to thepriest:—s
“ 22—12—1903.“ I seek protection from the almighty God, to save me from alldisturbance and evil acts of Satan, who. was sent away from Para-dise.*
“I commence „to write this document in the name of the mostmerciful, helping, almighty, and living God, and I expect the helpand salvation from the Saviour and our Prophet and our LordMohammed.
“ All the- praises are due to the only one, living God.
“ Now I, the poor Seyado Mohamado, son of Ismail Lebbe, writethis instrument of divorcement for the information, giving my bestsalam (compliment) and greetings to the officiating priests of Akku-rana Mosque, and to the high priests and headmen and the.oilierMuselmen, and state-that my wife Zuliha Umma, the daughter ofWappoo Marikar Basie. Lebbe Marikar, is not submissive to me, dis-obey me, and act contrary to my order and words, and her temper and
a) (190©) 3 Browne 9.
1907.
February 11,
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1907. character are not agreeable to me. I therefore repeated the threeFebruary 11. * thalaks * (the first, second, and third divorcements), and the
• ' magar ' money payable by me to her I do hereby give over unto
her all the articles which are now in her possession and the goodsand chattels which are lying in the house, and I do now separatefrom my wife and my marriage contract according to our religiousbooks.
“ Given on the 2nd day of the month of Sawwal in the yearHijjara 1321.
“ Seyado Mohamado" (son of Ismail Lebbe of Ceylon).
“ Witre8868:—
Mohamado Lebbe Alim Saibo.
Moona Habeebo Lebbe.
Seyyado Lebbe.**
“ This true copy of the divorcement has been issued, by me, NoorMohamado Lebbe Alim Saibo, the officiating priest of AkkuranaMosque to Seyado Mohamado Lefcbe Alim Saibo, affixing a stampto the value of 50 cents and. set my hand thereon and granted onthe 25th day of September, 1906.**
[Signature illegible.]
The Police Magistrate (T. B. Russell, Esq.) held that there was avalid divorce ,according to Mohammedan Law.
The complainant appealed.
Allan Drieberg, for complainant, appellant.
Bawa (H. Jayewardene with him), for defendant, respondent.
Cixr. adv. vult.
11th February, 1907. Wendt J.—
The question reserved for our consideration by my brotherGrenier is whether the defendant had validly divorced his wife,the complainant, who now seeks maintenance, and that question isnarrowed down to this: Does the law require, as an essential to aMohammedan divorce, that the husband shall give to his wifewritten letters of divorce? It is not contested that if no writingwas necessary there had been a valid divorce.
The original Mohammedan Law did not require any writing, butit is contended that in the case of Ceylon Mohammedans the Codeof Special Laws of 1806 renders a writing, essential. The sectionsbearing upon the matter are the 87th ‘ and the following sections.The 87th section says the husband “ shall be obliged to give herthe tollok or letters of divorce ** at intervals which are specified.Section 88 and the opening words of section 89 speak of “ the thirdtollok ** without the addition of the words “ or letters of divorce,**but the latter part of section 89 empowers the husband to issue
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three tolloks or letters of divorce at once/’ subject to his obligation 1007.to furnish his wife with a dwelling-place for the space of three months. -February 11Nell (Mohammedan Laws of Ceylonf p. 44) suggests that ** letters Wendt J.of divorce ” was inserted as the equivalent of ” tollok/’ and thatit is a mistranslation. “ Tollok ” is obviously a local corruption bythe Ceylon Moormen (whose language is Tamil) of the Arabic term“ tolok/* which (says Hamilton’s translation of the Hedaya) " in itsprimitive sense means dismission; in law it signifies the dissolution of amarriage, or the annulment of its legality, by certain words.” The“ tollok ” in fact means the words of divorce, and I incline to theview that the alternative expression ” letters of divorce ” was addedmerely as an explanation or equivalent. Compare “ Maskawienor magger ” in sections 72, 77, &o. The use of the term ” tollok ”by itself in two out of the four passages supports that view. If itwas intended to enact that the necessary words of repudiationshould be embodied in a written instrument, why require three suchinstruments to be issued simultaneously when the thrice-repeatedformula might have been embodied in one ?
The cases which are relied upon as having decided that a writingis necessary are not satisfactory. In Pitche Umma v. Modely Atchy
it is not clear whether there had or had not been a writing. Itis said the District Court held there was no sufficient proof of divorce,the letters of divorce required by the 87th clause and the recordor registry required by the 90th clause not having been produced ortheir absence accounted for. The Supreme Court was of opinionthat there were only private memoranda made by the parties andnot secured in any repository for the same established by law, thelaw nowhere providing “ that these tolloks or records shall be soleevidence of the fact* of divorce,” and this Court in fact held that theywere merely evidence of the fact of divorce, and put them on thesame footing as registers of births, marriages, and baptisms.
Looking to a certain admission of the defendant, the evidence of thewitnesses, and to the fact of the parties having lived separate fromthe time of the alleged divorce, the Supreme Court held the divorceestablished. In C: R.. Batticaloa, 9,352 (2), the Court of Bequestsheld that ” letters of divorce must be given, and that the mereutterance of certain words will not dissolve the marriage.” It wasalso of opinion, on the authority of MacNaghten, that the repetitionof the words of divorce, when divorce can be verbal, must be madeon several occasions. The Court therefore held the divorce notestablished, and the Supreme Court merely affirmed the dismissal ofthe action without giving any reasons.
What the facts proved were does not appear. In re Rama Kandu
Clarence J., in reversing the decision of the District ’Judge of 1
(1) (1859) 3 Lor. 261.• (2) (1870) Vandcrstraaten 51.
(3) (1876) Rom. 316.
II-
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Kandy, hold that the 89th clause “ requires three written letters ofdivorce or tolloks to be given, and the evidence is that there was nowriting whatever…… We are not satisfied by the evidence
adduced in this case that the writing of divorcement described inclause 89 of the Code has been dispensed with by a custom having,the force of law."
The last two of these reported cases are decisions of a single Judge,and they proceed on a bare construction of the clauses of the Code,which are by no means unequivocal. In Kadijah Umma v. Moha-mado Mawlana (1) Moncreiff J. reviewed the earlier decisions andheld that the tofiok need not be in writing.
I agree with my brother Middleton in upholding that view.
I am further of opinion that if a written record was necessary thedocument A dated 22nd December, 1903. which has been producedin this case, satisfies that requirement. It calls itself " this instru-ment of divorcement,” is addressed to the officiating priests of theA'kkurana Mosque, and states that the defendant’s wife having beendisobedient to hitn he repeated the three tolloks and gave over to herher magar, and that, he now separated from his wife and the mar-riage contract,^ Recording to their religious books. The Magistrateheld that the priest received this instrument, and that he informedthe complainant of its contents, and I think that is sufficient.
The appeal should be dismissed.
Middleton J.—
This was an appeal referred by my' brother Grenier before twoJudges of this Court and involved the validity of Moslem divorce.
The facts were that the appellant, alleging she was hte wife, in-stituted proceedings for maintenance against the respondent, whopleaded that bie|had divorced her.
The evidence ' showed, and the Magistrate found, that three“ talaks ” were pronounced by the respondent at the same time, andthat a writing was drawn up embodying the fact and sent to the priest,who communicated it to the appellant. It was firgued that the so-
. called Mohammedan Code in force in Ceylon rendered it obligatorythat the “,talaksshould be in writing and should be communicated
directly to the wife.
The cases quoted in order of date were first Pitche Umma v. ModdyAtchy (2) decided in 1859. In that case the Supreme Court foundon the evidence:! of an admission made by the defendant and other
, evidence which did not appear to include formal acts as laid down inthe Mohammedan Code that the fact of’divorce had beeR established.
In the case C.R., Batticaloa, 9,852 (3), Lawson J., sitting alone,in 1870* held that the mere utterance of certain words would notdissolve a Moslem marriage.
(1) (1902) 3 Browne 9.(2) (1859) 3 Lor. 261.
(3) (1870) Vanderstroaten 61.'
1907.
February 11.Wbndt J.
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In the matter of the goods and chattels of Bamen Kandu, deceased 1907.{1), Clarence J., in 1876, delivered the judgment of the Supreme Court February 11holding that the Court was not satisfied by the evidence adduced inthe case that the writing of divorcement described in clause 89 of j,the Mohammedan Code had been dispensed with by a custom havingthe force of law to divorce orally. It seems to me that the learnedJudge did not sufficiently appreciate the meaning of the Arabicword “ talak,” improperly spelt “ tollok ” in the Ceylon Code, asthe report makes him say that clause 89 requires three writtenletters of divorce or " tollocks 0 (again spelt differently) to be given.
I take leave to think that' the word “ talak ” means, in its literalsense, dismissal or repudiation (Hamilton’s Hedaya, p. 72; Van DenBerg's Manual ie Jurisprudence Musulmane Selon he Bite, de Gh&fi’ti., Not. n., p. 425), and that when it is used as disjunctively with-the words letters of divorce ” the proper signification to be attach-ed to it is an oral repudiation as distinguished from a written one.
The word is not defined in the Ceylon Code, and its meaning maywell be sought for from its use and application under the generalMussulman Law in force in India.
The chapter on “ Talak ” in Ameer Ali (voL 77., pp. 408-485)makes it clear to my mind that the sense of “ talak ” is an oral repu-diation, and shows that the Shiah sect (p. 420) did not allow “ a talak ”to be given in writing unless the person giving it was dumb.
I think flie view taken by Moncreiff J. in Kadijak Umma v. Moha-mado Mawlana (2) is the correct one, and that the husband maypronounce the “ talak ” or give it in writing under the Ceylon Code.
In the case reported in volume 6 of the .Madras High Court Reports,p. 432, the Court would appear to have held a divorce valid, noticeof which, though, three times pronounced before the Kazi andembodied in a letter to the wife, never was proved to have reached•the wife. I presume it was held to have taken effect only from thedate when pleaded as a defence to the plaintiff’s claim formaintenance.
Neither the Ceylon Code nor apparently general MussalmanLaw requires the " talak ” to be pronounced in the presence of thewife, but it would seem the Hanafi sect (Ameer Ali, vol. 77., p. 421)iold it is necessary it should come to her knowledge.
My view then is that the facts found by the Magistrate are suffi-cient to establish that the respondent lawfully divorced his wife,inasmuch as it is proved that? he pronounced the “talak” three timesorally, at the same time, which is what Ameer Ali calls the bidaatform of ‘’talak ” recognized as valid by the Shafeis, though in itscommission the man incurs a sin (vol. II., p. 412). The husbandwould, however,, be bound to find her a dwelling-place "for threemonths according to section 89 of the Code.
«
(1) (1876) Ram. 316.(2) (1902) 3 Browne 9.
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1007.
February 11.
Mlftr>1,KT02t
J.
The effect o1 bringing it to the wife’s notice in my opinion ismerely to As the date from which it is to take effect.
The petitioner here had notice of the divorce before the applicationtor maintenance was made, but even if she had not, its effect would,I think, date from the receipt of notice during the maintenanceproceedings, and she would still be barred from its recovery.
In my opinion the judgment of the Magistrate should be affirmedand the appeal dismissed.
Appeal dismissed.'
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