THE KING v. MISKIN UMMA et al

057-NLR-NLR-V-26-THE-KING-v.-MISKIN-UMMA-et-al.pdf


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1025.
Present; Bertram C.J. and Jayewardene A.J.
THE KING v. MISKIN UMMA et al4—D. C. (Crim.) Kcgalla, 2,354.
Muslim- law—Divorce by wife—Judicial decree—Civil Procedure Code,
Chapter KLIL
Under the Muslim law a wife is only entitled to a divorce if herhusband effects the divorce himself, or the divorce is granted by adecree of Court. InCeylon a DistrictCourtis the competent
authority for granting such a divorce.
As Chapter XLII. of the Civil Procedure Code does not applyto Muslims, such an action for divorce must be governed by thegeneral rules of civil procedure.
Per Bertram C.J.—The Code of 1806 is not exhaustive of theMuslim law applicable to Ceylon. It has to be read in the light tothe general principles of that jurisprudence.
T
HIS case was reserved by the District Judge of Kegalle for theconsideration of theSupreme Courtundersection 353 of
' the Criminal Procedure Code upon a question of law arising from acharge under 3^2 (6) of the Penal Code. The accused were Muslims,andtlie first accused, whois the (laughterof thesecond accused,
wascharged with marrying a second timeduringthe lifetime of
her husband, and the second accused was charged with abetment; of
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the offence. They were convicted, and sentenced to undergosimple imprisonment till the rising of the Court. The facts of thecase and his finding were stated *>y the District Judge as follows: —
“ At the hearing of the said charges it was proved that the firstaccused did contract a second marriage during the lifetimeof the first husband, and that the second accused, herfather, solemnized the marriage on each occasion accordingto Muhammadan customs. But it was contended on thepart of the accused that the first marriage was validlydissolved by means of a document called the Passauhukadutham, executed by a Mowlana before the secondmarriage was contracted, and that therefore, the secondmarriage was not void, and that the accused could not beheld to be guilty of the offence under section 362 (b) ofthe Ceylon Penal Code.
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The King «,MishinUnwm
“ But I being of opinion that the document pleaded was of noforce or avail in law, and that the practice in question wasnot one recognized either by the general Muhammadanlaw or our local Code on Muhammadan law for the reasonsstated in my judgment, held the first marriage was notvalidly and legally dissolved, and that- the only way inwhich a Muhammadan wife could obtain a valid divorcewithout the consent of her husband was through themachinery of the District Court, and found the accusedguilty of the charges laid against them.”
Akbar, S.G. (with him J. E. M. Obeysekerc, C.C.). for theCrown.—The law laid down in the Code may be supplemented bytext-books recognized as authorities. Under the Muslim law, thehusband has the right of divorce, without going before a tribunal,subject to certain safeguards. As, for example, he has to pay thewife the maggar as soon as he divorces .her. He has to explainliis. action to friends who may attempt a reconciliation. He hasto issue three letters of talak, and before the third talak a reconsilia-tion is possible. Now that elders are no longer recognized, thehusband has the right of divorce straight away. The secondmethod of divorce is by klmla, where the wife wants the divorcewith the consent of the husband, the consideration being thewaiver of the maggar. The third kind is rnubaTtit, divorce by mutualconsent. The fourth method recognized is by a judicial decree.
The Shafei law extends to the whole of the Colony. In the matterof judicial divorce Wilson on Muhammadan Law, ch. 3, -page 143,shows the difference between the Shafei and t-hq Hanafi laws. Awife cannot divorce herself without her husband's consent exceptthrough means of a judicial decree.
When the husband is unable to maintain lie must* divorce her,if he does not, the Kdzi does it on his behalf.
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1926*
The King iMiskinUmma
Id Habia Umma v. Saibit 1 Sir Alexander Wood Benton says thatu on a question of law the proper course to adopt is to refer to -text-books. The passage cited by De Satnpayo J. from Tyabji is notborne out by the original authority. Hedaya 1,4.2. Now Wilsondeals in a separate chapter with judicial divorce, paragraph 72.page 153. "When we turn to Shafei law at end of page 431, he saysthat the wife may obtain judicial divorce on the ground of non-maintenance. He cites the .same authority from Hedaya.
In Agesha Umma v. Abdul Carhn – it was held that the Judgewho corresponds to the sitting Magistrate is the District- Judge.
A Muhammadan husband is entitled to bring an action fordivorce on the ground of adultery, Gassim v. Bibir
Samarawichreme (with M. B. A; Gadcr). for the accused.—TheMuhammadan Code is a summary of the law. as it was appliedin Ceylon at the time of its introduction. It provides for a divorceat the instance of the wife in the case of continued dissensions. .
Bertram C.J.—There is nothing in the Code-which contemplatesa wife obtaining a divorce without the intervention of the Court.
Samarawichreme.—The jurisdiction of the Magistrate contem-plated by section 85 is only confied to the payment of maggaraud its computation. But the grpunds of divorce need not be sodecided. What comes before the Magistrate is the fixing of theamount. Where there are continued dissensions, divorce may bemutual, or if that is not possible, at the instance of the wife.
Under section 02 a wife may 'obtain a divorce when the husbandis decaying into poverty. It need not be presumed that a judicialCourt corresponds to a Kdzi. The exclusion of Muhammadans fromthe sections of the Civil Procedure Code dealing with matrimonialcauses is significant, and shows that our Courts cannot takecognizance of them. No Muhammadan husband is obliged to comeinto Court.. Section 64 of the Courts Ordinance does not create anew jurisdiction. Even if it does, that does not affect the rightsgiven to the Muhammadans under the Code.
Akbar, S.-G. in reply, cited Amir Ali, vol. II.. p. 470; Wilson’sAnglo-Muhammadan L(tiv} p. 150.
February 17, 1925. Bertram C.J.—
This reference raises very important questions with .regard to theMuhammadan law of divorce, the principles of which have beenvery clearly expounded to us by the Solicitor-tieneral. It appears■ that for some time past a “ practice ” has been intruding itselfinto the life of the Muhammadan community in Ceylon, under which
1 {1914)17 y. t. R. 338.2 {1880) 4 S. C. C. J3.
a (1900) 4 X. L. R. 310.
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certain persons have purported to grant or certify divorces betweenhusband and wife at the instance of the wife, or of the wife’s fatherwithout the intervention of any judicial tribunal. I am not awareto what extent this “ practice " may have proceeded. What hasbeen done clearly cannot constitute a custom, and in the absence ofany evidence as to the extent to which such proceedings have takenplace, I desire to use even the word “ practice ” in a most restrictedsense. There can be no doubt whatever that these proceedingshave no foundation either in the general principles of Muhammadanlaw or in any special developments of that law, which might besuggested to have taken place by virtue of local customs.
The “ practice *’ (is practice it be) Is of itself unjustifiable, andin this particular instance particularly scandalous. The wife in thepresent case was a child, daughter of a Muhammadan Registrar ofMarriages, who was married by her father at the age of ten,and divorced and remarried at the age of thirteen in the absence of herhusband. The instrument chosen ftr this purpose was a strol-ling mendicant calling himself a Mowlana, and purporting to be adescendant of the Prophet, who at the instance of the father issueda certificate, which was said to constitute a valid divorce. Thismendicant is an ignorant person, who speaks of the Kdzi (or Kadi)as the “ Kali,*1 and under cross-examination disclaimed the honourof being a '* Kali,” or of having any power to grant divorces. Thefather of the girl, so he explained, is a Kali, being Registrar of^Marriages. He kindly assisted the father in effecting the divorce inthis capacity by writing the certificate for him, the father s handbeing paralyzed. With all that has been said by the learned DistrictJudge about this person, I entirely associate myselfV
The learned District Judge, who has initiated this reference, hasdealt with all the questions concerned in so thorough and careful amanner, that it is hardly necessary for us to do anything mere thanendorse the principles he has laid down in his judgment. As,however, the questions involved are of great importance, I will addcertain further observations.
The brief Code of Muhammadan law promulgated in this Colonyin 1806 is no doubt a very rough condification of certain portions of avery great system of jurisprudence. It is not exhaustive, and hasto be read in the light of the general principles of that jurisprudence.But I am unable to see that enactments so promulgated, in so faras they relate to the matters under consideration, make anysubstantial departure from those principles. It is a recognizedprinciple of Muhammadan law that a husband is free to divorcehis wife without assigning a cause. In the original purity of thelaw, this right was carefully safeguarded and subjected to repeatedopportunities for reconciliatipn. With the development of civiliza-tion these safeguards have been discarded, and the only check uponthe husband's rights is the necessity of restoring his wife's maggar,
1383.
Bertram
C. J.
The King v.MishinJJmma
( 334 )
1925.
iittATRAH
C. J.
Tit* King v,MiakinUmma
if he thinks fit to divorce her. The wife's positiou is very different,ns explained by Sir Roland Wilson in his Digest of Anglo-Muham-madan Law, 4th ed.t p. 143:—
*■ The wife can never divorce herself from her husband withouthis consent, but she may under some circumstances obtaina divorce by judicial decree.'*
Under the Hanafi law those circumstances are extremelyrestricted. Under the Shafei law (the parties in this case belong. to the Shafei community) they are slightly more extensive. One ofthe grounds there recognized for separation is the incapacity of thehusband to provide his wife with proper maintenance. See theHedaya, bit. IV., ch. 15. It is the alleged failure of the husbandto provide maintenance, which is the ground for- the supposeddivorce in the present case.
The wife is at all times entitled to secure a divorce by agreementwith her husband, and there are two forms in which this may bedone. But it should be observed that in both cases it is the husband,who himself grants the divorce at the instance of his wife, and thatin those rare cases in which a wife is entitled to obtain a divorceby judicial decree, the Kazi is considered as acting as the substitutefor the husband. See the Hedaya in the passage just cited “ Shafeisays that they must be separated, because whenever the husbandbecomes incapable of providing his wife's maintenance, he cannotretain her within humanity, as is required in the sacred writings;such being the case, it behoves him to divorce her; and if he declinesto do so, the Kazi is then to effect separation as his substitute, inthe same manner as in cases of emasculation or impotence.”
Our own rough Code is entirely in accordance with these principles.The right of a wife to obtain a divorce for insufficiency ofmaintenance is prescribed by section 92. ** She may obtain udivorce, should, she wish it, under the same provisions as stated inthe 76th Article.” The 76th Article must be read in connectionwith the final words of Article 75, where it is said that if the partiesare unwilling to abide by the decision of the priest, 4 4, they shall beat liberty according to custom to lay their case before the competentJudge.” Article 76 proceeds:44 'The bride is in such a case obliged
to restore to the bridegroom the ma&lcawien or maggat.” It is clear,therefore, that where a woman seeks a divorce on the ground ofincapacity of maintenance, she can only do so through a judicialdecree, in which the Judge acts as substitute for, and in the absenceof consent by, her husband.
The question arises, who is the competent Judge ? Under ourown legal system there can be no doubt whatever that he is theDistrict Judge. The idea that the Kdzi (or Kadi) under Muham-madan law is a sort of special religious functionary with spiritualqualifications only distinct from the ordinary judiciary, and that
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his place in non-Muslim countries may be taken by some appropriateperson of ecclesiastical rank or piety is a pure figment of theimagination. In Islam all law was sacred, and the only person whojudicially administered it (apart from the Head of the Stateitself) was the Kdzi (or Kadi) who was a Judge in the fullest senseof the term, and the only Judge whom the law recognized. In theCourt of the Kdzi the law of sale was as sacred as the law of divorce,and he adjudicated upon both in the same capacity. Westernjurisprudence developed a distinction between what we sometimesdescribe as “ personal law M and other law. And in various regions,where the original Muhammadan rulers have been displaced, it hasbeen found convenient by the new Government to assign thisspecial law, the Statut jwrsonel, to special religious Judges. No suchcourse was adopted in India or Ceylon. A similar developmenttook place in Turkey in modern times. The Sultan by virtue of hisImperial prerogatives established special statutory tribunals knownits the Nizam Courts, presided over by judicial officers of a differentcharacter from the old-fashioned Kadi. But the s,Kadi's Courtcontinued to function with regard to a group of questions (notnecessarily identical with the group comprised in the Staint peraonei),which came to be considered to have a special religious flavour.
These arrangements are purely political and administrativearrangements. When on the assumption of British rule in Indiaand Ceylon, the Muhammadan community retained their own systemof law, that law was to be administered by the regular tribunals.
In Ceylon the District Judge, therefore, as the competent-authority for a divorce under section 64 of the Courts Ordinanceis the competent judge for Muhammadan divorces in so far as theserequire a judicial decree. This has been long ago determined bythe judgment of the Full Court in Ageaka Vmma v. Abdul Garim(supra). The fact that there are no special rules of procedure underour Civil Procedure Code, which are appropriate for thepurpose of Muhammadan divorces, does not affect the situation.Chapter XLII. no doubt does not apply m such cases, but- in thecircumstances they must be governed by the rules of procedure appli-cable to ordinary actions.
The law is so clear that. Mr. Samarawiekreme, who appeared forthe convicted persons, necessarily had the greatest difficulty insustaining the task which he had been called upon to perform.He was, however, able to make one ingenious verbal suggestion,namely, that where section 92 says that the wife who cannot bemaintained by her husband “ may obtain a divorce/* all that thesection means is that she may herself put through a divorce bymeans of any appropriate certificate or formal document. Hecontends that the reference to the 76th Article must be strictlyconstrued, arid that the only condition of such a divorce is thatunder Article 76 the wife must restore the maggar to the husband,
1925.
BertramC. J.
The Kinu <*.Miekht
UtHHHt
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1985.
Beatbam0. J.
The King 1MiskinUmina
if she has already obtained it. There being no reference to the41 competent judge ” in Article 76 itself, the words immediately-preceding in Article 75 are, according to Mr. Samarawickreme,
, to be disregarded. It is hardly necessary to discuss this verbalsubtlety. Is seems to me a sufficient answer to point Cut that thewords 44 obtain a divorce " imply a divorce that cannot issue fromthe wife herself, but must be secured .from some authority competentto bestow it. And the only authority competent to bestow itrecognized in the context is the 44 competent Court.*' It is a furthersufficient answer to the contention that if this were our local law,it would involve a complete departure from the accepted principles-of Muhammadan jurisprudence-—a revolutionary proceeding whichthere is occasion to impute to the authors of our Code.
The only difficulty, which arises in the case is to be found in aseries, of passages in the work of an Indian lawyer, himself a Judgeof the Madras High Court, Mr. Justice Tyabji’s Principles ofMuhammadan Law, 8. 205, p. 168. He there states that 44 underShiah and Shafei law a marriage may be annulled by the wifewithout the intervention of the Court on any of the followinggrounds," and among the grounds referred ,to, he states: 44 Thehusband's inability to provide maintenance for his wife." Thisopinion has been accepted in a considered obieter dictum ox DeSampayo T. in llabia Umvia v. Saibu (supra). Weight is no doubtto be attached to that dictum, but it is purely incidental, and for thespurpose of the decision De -Sampayo J. had no occasion to comparethis utterance of Mr. Justice Tyabji’s with the recognized authoritieson Muhammadan Law. If he had had occasion to do so, he woukkhave found that this utterance stands alone, and is in .direct- conflictwith the accepted authorities. The only . authority which Mr.Justice Tyabji gives for his statement is a reference to Bailie'#Digest of Muhammadan haw. This after all is only another text-book, and it is hardly sufficient for one text-book writer to cite thework of another. The passage in Neil Bailie referred to in Tyabjiis Booh 111.44 Of Divorce " on p. 203 of the Edition «»/ 1865.
There is nothing in the section of the work cited, either in the wordsof the text or in the notes at the foot thereof, which in any wayjustifies the statement. Neil Bailie says: 44 There are thirteendifferent kinds of Firhut (or separation of married parties), of whichseven require judicial decree and six do not." The six formswhich do not require a judicial decree do not include a divorce forincapacity oft maintenance. It is difficult to understand the statement of . the learned author that in this form of divorce a judicialdecree may be dispensed with, particularly as it is in effect twice'repeated. But it must be taken to be due to an oversight.
In the-course of the argument there was a certain discussion ofthe principles applicable to the two forms of divorce by consent,khula and mubarat, and as to the functions of the Court in the
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former. It is not necessary to give any decision on the points 1OT5,discussed, because it is not suggested that this was a divorce by Bertramconsent. I may, however, observe that it appears to me that the C. J,function of the “sitting Magistrate ” under section 85 in the case The King v-o£ the khula divorce must be confined to the assessment of compensa-tion, where a khula divorce has already been agreed upon by theparties. See section 80. The point will be found fully discussed bySir Roland Wilson in his Digest of Anglo-Muhammadan haw, 5th ed..p. 433.
The second accused, who is responsible for this scandalousproceeding, may think himself fortunate that the learned Judge hasattributed so much weight to the “ practice M which is said to haveprevailed, and that he has under the circumstances awarded him onlya nominal punishment. The question of enhancing this punishmentwas not considered by tlfe Court, and there is no occasion for usto vary the decision of the learned District Judge. Any person,however, who in future acts similarly should not rely uponbeing similarly dealt with. On the matter referred to us, Iwould confirm the verdict and sentence of the learned DistrictJudge.
Jayewardene A.J.—
This is a case reserved by the learned District Judge of Kegallafor the consideration of this Court under section 353 of the CriminalProcedure Code. The question of law stated for our opinion arisesin this way:—The accused are Muslims. The first accused, who isthe daughter of the second accused, was charged under section 362 (b)of the Penal Code with marrying a second time during the lifetimeof her husband, and the second accused was charged with abetmentof the offence. They were both convicted, and sentenced toundergo simple imprisonment fill the rising of the Court. Thesalient facts of the case and his opinion are stated by the DistrictJudge in the reference as follows: —
“ At the hearing of the said charges it was proved that the firstaccused did contract a second marriage during the lifetimeof her first husband, and that the second accused, herfather, solemnized the marriage on each occasion accordingto Muhammadan customs. But it was contended on thepart of the accused that the first marriage was validlydissolved by means of a document called the Passauhukadutham, executed by a Mowlana .before the secondmarriage was contracted, and that, therefore, the secondmarriage was not void, and that the accused, could not beheld to be guilty of the offence under section 362 (b) of theCeylon Penal Code.
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m
Jaybwab-1>EME A.J.
The King v.
Mitten,
Vmmc*
“JBut I being of opinion that the document pleaded was of noforce or avail in law, and that the practice in question wasnot one recognized either by the general Muhammadanlaw or our local Code on Muhammadan law for the reasons- stated in my judgment, held that the first marriage was hotvalidly and legally dissolved, and that the only way inwhich a Muhammadan wife could obtain a valid divorcewithout the consent of her husband was through themachinery of the District Court, and found the accusedpersons guilty of the charges laid against them/*
He invites this Court to consider whether his determination iscorrect in law. It may be mentioned here that according to theMowlana the ground on which he granted the divorce was thefailure of the husband to maintain his wife, the first accused. Thereis also a suggestion in the evidence that the first accused had beendeserted by her husband.
The reference raises the question of a wife’s rights with regardto divorce under the Muhammadan law, that is, whether shecan divorce her husband without the intervention of a Court ofLaw. It is contended for the accused that according to the lawsand customs prevailing amongst the Muslims in Ce3*lon a wife candivorce her husband before a priest, and that such a divorceis permitted when, as in this case, "the husband is unable tomaintain his wife. Whatever the general Muhammadan lawmay be, it is argued that such a divorce is permitted by section 92of the- Muhammadan Code of 1806. To answer the questionpropounded by the District Judge, it is necessary, in the first place,to ascertain the general Muhammadan law on the point. In myopinion the general principle is that stated by Sir RolandWilson in his work entitled Digest o.f Anglo-Muhammadaii Lawin the following passage: —
" The husband may divorce his wife at his mere will and pleasure,without assigning any reason; but the transaction is calledby a different name, and requires different formalities,according as it takes place against her wQl or by mutualconsent. The wife can never divorce herself from herhusband without his consent; but.she may, under somecircumstances, obtain a divorce by judicial decree”—(p. 148)..♦
The general rule of law as stated by Syed Amir Ali in his workon Muhammadan Law {vol. 2. pp. 532, 582, 4th ed.) appears to bethe same.
In Muhammadan law there are three forms of divorce whichhave specific technical names’. They are taldh or tollokt where thedissolution of the marriage proceeds from the husfiand. Sections87 to 90 of our Muhammadan Code provide for such divorces.
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Mubarat, where the dissolution is by mutual consent, see section79 of the Muhammadan Code, and khula, in which although theproceedings for. the dissolution are commenced at the instance ofthe wife, the final separation is founded on the consent of thehusband who releases his wife on being compensated. Thisform of divorce is, in my opinion, provided for by sections 80-86 ofthe Code of 1806. See Bee Bee v. Assen Pitche.1 There is a fourthform of divorce—that granted by the Kdsri or Judge, for whichthere is no special name, but is called by the commentators “ judicialdivorce/'
A “ judicial divorce ” or a dissolution of the marriage tie by aJudge can be granted by the Court on the application of eitherhusband or wife. According to the law of the Shafei sect to whichthe Muslims of Ceylon belong, a wife can obtain a divorce from theKazi or Judge on the ground of her husband’s inability to maintainher. See Wilson's Digest of Anglo-Muhamtnadan Law, pp. 152 and432, and Amir Ali’s Muhammadan Law, vol 2. p. 582.
Mr. Justice Tyabji in his book on Th*e Principles of MuhammadanLaw gives four grounds on which under the Shafri law marriagemay be annulled by the wife without the intervention* of a Court,and among them are impotency and inability of the husbandto provide maintenance for the wife. Section 205, p. 168 (1sted.). In section 206 he refers to the grounds on which a husbandcan obtain a divorce without the intervention of the Court, and insection 207 the learned author says: 44 According to Shiah andShafei law either party may annul the marriage on any of thegrounds stated in sections 205 or 206, and the marriage is thendissolved without any order of the Court/* and lays down theconditions necessary to make such a divorce valid. Then insection 208, he adds: 44 In Shiah and Shafei law the annulment ofa marriage under sections 205, 206, and 207 does not amount to adivorce for purposes of establishing prohibition bv divorce betweenthe parties remarrying each other.
But Wilson mentions impotency as one of the three main groundsfor whicli a marriage may be dissolved by judicial decree (page 153,section 72 and with regard to the Shafei law on the point hesays:" The wife may obtain a judicial divorce not merely on the
ground of the impotence of the husband, but also if he is afflictedwith madness or leprosy/’ Page 432. section 401 (1).
Amir Ali says that the wife is entitled to claim a divorce on theground of her husband’s impotency if she was unaware of theinfirmity prior to his marriage, and states the general rule thus: —
“ A claim for the dissolution of the marriage mi the ground ofimpotency is to be preferred always before the Kazi orJudge having jurisdiction-in the matter (Kdsi of the city orplace)/’ Page 597.
1 (2924) 26 X. L. R. 277..
1925.
Jaybwab-DENE A.J.
Th* King v.MiakinUmmn
1985.
-Jaybwap-DENE A.J.
"Thu King vMiakinXJmma
. ( 340 )
Then at page 600 he points out that under the Shafei law, if thehusband is Buffering from leprosy or other dire disease, the wife canobtain a cancellation of the marriage from the Kdzi. With regardto a divorce on' the ground of the husband’s inability to maintain’his wife, Wilson (page 482) says that “ a judicial divorce can beobtained" by th£ wife on the ground that the husband is unable toafford her maintenance on even the lowest of the three recognizedscales/* and Amir Ali says that “ under the Shafei and Hanafi.system inability on the part of the husband to maintain t-he wife,absence without any provision for her maintenance, desertion,cruelty, and like causes, entitle a woman to apply for and obtain aseparation from the Kdzi',r (page 469), and at page 470 he cites theFatawai Kdzi Khan, which states the law thus: “ Inability (viz.:to provide for maintenance) does not create a right of separation;but Shafei, on whom l?e peace, says that the woman is entitledin such a case to demand from the Kdzi that he should effect aseparation between them, and the separation (so) effected by theKdzi shall be a cancellation (faskli) of.the marriage. …
There is, therefore, between Tyabji on the one side and Wilon andAmir Ali on the other, a direct conflict as to the proceeding by whicha dissolution of a marriage can be effected on the grounds ofimpotence, affliction with a dire disease such as insanity or leprosy,and inability to maintain a wife. Tyabji, however, gives noauthority for the statement that on these grounds a marriage canbe dissolved without the intervention of a Court.
According to the Hedaya (bk. IV.t ch. XI., p. 354), the Kdzi can,on the application of the wife, decree an annulment of the marriageon the ground of importance, the Kdzi acting in such cases as thesubstitute of the husband. As regards the wife’s light to a dissolu-tion of the marriage owing to the husband's inability to maintainher, the Hedaya (bk. JV., oh. 15, p. 397) thus states the Shafeilaw on the point: "Shafei says that they must be separated,because whenever the husband becomes incapable of providing hiswife's maintenance, he cannot retain her with humanity (as isrequired in the sacred writings); and such being the case, jt-behoves_ him to divorce her; and if he decline so to do, the Kdzi is thento effect the separation as his substitute in the same manner as incases of emasculation or importence. …"
Thus the law as laid down by Wilson and Amir Ali is supportedby the Hedaya, and the latter lends no support whatever to Tyabji’sview that for importance and inability to provide maintenance thewife can dissolve the marriage,without the intervention of the Court.In my judgment the law as laid down by Wilson and Amir Ali,supported as it is by the Hedaya, ought to be followed in preferenceto that laid down by Tyabji. As regards the case of Bahia Vmmar. Saibu {supra) in which the law as stated by Tyabii was referred towith approval, it cannot be* regarded as a binding authority for the
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reasons given by my Lord the Chief Justice. Further, the qualifies- 192k-fcion which Tyabji has added in section 208 (supra) shows that the jayj:wab-<lissolution of marriage referred to by him in sections 205 and 207A.J.
does not involve the prohibition of marriage with each other, and The King v.points to such dissolutions as being not of the same character as•ordinary divorces under the Muhammadan law which preventsremarriage except under certain drastic conditions. It may be thatTyabji is not referring to the complete divorces with prohibition ofremarriage referred to by Wilson and Amir Ali.
Under the Shafei law, therefore, a wife cannot obtain a dissolution■of the marriage without the intervention of a Court of law. Thatbeing the Shafei doctrine on the point, we have to consider whetherthat law has been altered by our Muhammadan Code. As I havestated above, the Code provides for divorce by talalc, mubarat, andkliula. It also provides for the nullification or dissolution ofmarriage on the wife discovering that the husband is suffering fromsuch disorders as leprosy or insanity, &c. (sections 74-78), and owingto the husband's inability to maintain his wife through poverty(section 92).
In the former case, the matter is, on the complaint of the wife,inquired into by the priest with the assistance of the commandantson both sides and the native commissioners, and a divorce is44 conceded. ” If the parties are not satisfied with the result,they can claim a decision by a competent Judge according to custom.
It is of course open to the husband to consent to such a divorceor to refuse to do so. If the husband consents, the divorce wouldin law be one at the instance of the husband who can divorce hiswife without stating any grounds at his free will and pleasure.. It isonly where the husband withholds his consent that the matterwould have to come before the Judge. The section dealing with theright to a divorce on the husband's failure or inability to maintainhis wife runs thus: —
'* A married man decaying into poverty, so as to be unable tomaintain his wife, such wife, if she should be possessed ofany wealth which she is unwilling to share with herhusband, may obtain a divorce, should she wish it, understhe same provision as stated in the 76th Article
(section 92).
Mr. Samarawickreme contends that under this section it is notrequired that the divorce, which the wife seeks, should be granted bya competent Court or a sitting Magistrate, and that the referenceto Article 76 does not incorporate the provisions of Article 75, hutmerely requires that the wife should in such a case restore to thehusband the qiaggar. I think the second part of liis contention issound. But although section 92 does not expressly require theintervention of a Judge or the consent of the husband, the use of
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1926.the wordobtain implies that she cannot-cancel the marriage
Jaybwak* according to her own will and pleasure, but that it should be grantedpax*) A.J. to her by another who is legally competent to grant it. She mightThe King v. induce her husband to divorce her and thus obtain a divorce 'Mishinfrom him,or if he declines to do so, then shemust obtain a divorce
mmafvom the only other authority empowered togrant it, and who can
act as asubsitute for the husband, theKdzi, or the officer
corresponding to him under our law—a competent Judge. She is,in my opinion, nowhere permitted to annul or dissolve her marriagewithout the consent of her husband or without a judicial decree.To give to the wife the rights she claims in this case is to make afundamental alteration in her. rights with regard to the marriagecontract. In the absence of clear and explicit; language, it cannot bepresumed that the framers of the Code of 1806 made such a radicaldeparture from a well-recognized principle of the Muhammadanlaw and of the rules of the Sh&fei sect.
Then it is contended that the dissolution of a marriage at therequest of a wife without any notice to the husband by Mowlanasor men claiming to be descendants of the Prophet and learnedin the law has the sanction of custom in Ceylon. Such a customhas not been provec} to be generally prevalent in the Island, andit is, in my opinion, repugnant to the principle of law existingamong the Shafeis. It cannot be recognized by a Court of law.Speaking of the right of divorce for importance which the Kdzi alonecan grant, Amir Ali says:“ A divorce granted by the fatwa
(decision) of the tmdlaJis (doctors of law or learned priests) isabsolutely illegal and invalid. The Jarn'c-uAh-shittat says that noproceeding for divorce on the ground of physical incapacity is validwithout recourse tou the mvraf 'a (Court) of the Hakim-iiith-shar o.(Judge). ” (Page 597.)
The same rule, in my opinion, applies to divorces which Mowlanaspurport to grant on the ground of the husband’s failure to maintainhis wife, for, according to the Hedaya (bk. IV., ch. XV.. p. 397)for non-maintenance, the Kdzi can effect a divorce " in the samemanner as in cases of emasculation and impotence. ”
Mowlanas are not referred to in the text-books on Muhammadanlaw to which I have referred in the course of this judgment, butI have no doubt they occupy a position analogous to that of the.mullaha of India. It is, however, suggested that at the present daythese Mowlanas have the same status and exercise the same powersin matrimonial matters as the Kdzi. I do not think so. The Kdziwas an official appointed by the State and was the Judge whodecided all civil and matrimonial disputes between Mussulmenparties. If such an official: existed in Ceylon, when the Code of1806 was formulated, he has been superseded by the Judges of theCourts—the sitting Magistrates. There are references in the Codeto the “ competent Court ” and “ the sitting Magistrate, M and they
( 348 )
appear to be entrusted with the duties which the K&zi ordinarilyperformed under the Muhammadan law. Kdzis existed and doexist in India, but according to 4lmir Ali their duties are nowmerged in the Civil Courts (page 600), and their acts possesses nolegal authority or official sanction. The matrimonial jurisdictionconferred on the sitting Magistrate by the Muhammadan Codeis now vested in the District Courts of the Island (Ageska Umma v.Abdul Carim (supra)) which have exclusive jurisdiction in matri-monial matters. The fact that the application of Chapter XLII. of theCivil Procedure Code dealing with matrimonial causes is expresslyexcluded in the case of Muhammadan marriages is'of no consequence.The provisions of that chapter are such that they cannot be appliedto cases between Muslim spouses. But in view of the definition ofthe term ** action ” in section 6 of the Code, an action by a Muslimwife to obtain a divorce can be prosecuted render the general rules ofcivil procedure.
For these reasons I hold that the conclusion arrived at by thelearned District Judge in his clear and well reasoned judgment isright, and I agree that the verdict and sentence should be confirmed.
1923.
Javewats-dexk A. .T.
The King r.Minkin
Ihmtnt
Conviction affirmed.