139-NLR-NLR-V-61-U.-RASHEEDA-Appellant-and-USOOF-DHEEN-Respondent.pdf
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Rasheeda v. Useof Dheen
1958Present: Gunasekara, J., and Pulle, J.TJ. RASHEEDA. Appellant, and TTSOOI? DHEEH, RespondentS. C. 1)1957 Qttazi Appeal
Muslim law—Fasah divorce—False allegations of adultery—Inference of cruelty.
Under Muslim law a lrusband. who habitually makes false allegations ofadultery agsaost bis wife is guilty of cruelty. Sucb cruelty is a valid groundfor a i’asalx divorce.
FULLE, J.—Raaheeda v. Usoof Dheen
571*.
from an order of the Board of Quazis.
D. S. Jayawickreme, Q.C., with A. M. Ameen, for the applicant-appellant.
Respondent in person.
Gwr. adv. vult.
September 29, 1958. PoiiE, J.—
The appellant in this case, TTmirm Rasheeda, instituted an action inthe Quazi Court of Kurunegala praying for a dissolution of her marriagewith one 0. V. Mohamed Usoof Dheen, who is the respondent to theappeal. On 7th January, 1956, the Special Quazi appointed to hearthe action granted her a Fasah divorce on the ground that, by habitually•making false allegations of adultery against the appellant, the respondentwas guilty of cruelty. The respondent appealed to the Board of Quazisunder section 60 (1) of the Muslim Marriage and Divorce Act, No. 13 of .1951, who by their judgment of 22-nd December, 1956, set aside theSpecial Quazi’s order. The appeal by the wife seeking to have the orderof the Special Quazi restored comes before us after the leave of thiscourt had been obtained. The facts relating to the ground of cruelty onwhich the wife succeeded before the Quazi are within a comparativelynarrow compass and we are, fortunately, not called upon to wade througha mass of evidence placed before the Quazi by the husband to meet twoother charges made against him, namely, that he maliciously deserted herand that he failed to maintain her. The concurrent findings on thesetwo charges by the Quazi and the Board of Quazis in favour of thehusband are not challenged. The main question we have to determine is .whether the Board in the exercise of their appellate' jurisdiction werejustified in setting aside a finding of .fact in favour of the wife.
The charge of malicious desertion was withdrawn by the wife duringthe course of her evidence. The charge that the husband had failed tomaintain the wife was held by the Quazi to be not proved. On thisissue be said,
“ The evidence would show that the respondent had done his bestto maintain his family and the evidence on respondent’s behalf on thequestion of maintenance is so overwhelming and convincing that theallegation of non-maintenance, I hold, is not proved ”.
The husband could on this finding claim that the wife’s evidence onanother material issue was unworthy of credit and that, therefore, thetrial Judge had, on the charge of cruelty, to direct himself on the basisthat her evidence should not be acted upon unless corroborated in material
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PTJLLiE, J.—Jtasheeda v. TJsoof Dheen
particulars. Even, otherwise, this would have been a wise precaution.We have, therefore, to see whether the learned Quazi appreciated theneed for corroborative evidence and whether he had misdirected himaal-Fby treating
It is implicit in the judgment of the Quazi that he well appreciated theneed for corroborative evidence. The wife called three witnesses insupport of her case that the husband had made unfounded allegations ofadultery against her. They were C. M. S. Shahabdeen, her elder brother,and G. M. S. Saheeda Bee, her sister, and one A. A. Majeed, a relation.The Quazi said in effect that if the wife’s case rested on her own evidenceand that of her witnesses he would <e gladly ” have dismissed the suit.He went on to say that the topics on which the husband questioned thewife and her witnesses and the manner in which he did so supplied theneeded corroboration. He says,
“ Respondent has argued that the onus of proving applicant’s caseis on her. I agree with him on this point but I cannot help mentioninghere that he should have taken care not to himself discharge the onuscast on the applicant. Despite my warning him several times heinsisted on putting questions which necessarily impaired his defencethat he did not make allegations of adultery against the applicant.”
Before dealing with some of the matters which called forth the remarksquoted above it is only fair by the Quazi to say that throughout the trialhe appears to have been anxious not to come to a finding in favour of thewife, impelled no doubt by a desire to save the marriage, unless theevidence forced him to do so. He also gave the husband—who was inmany ways more competent to conduct his ease than the wife her own—the greatest possible latitude in presenting his defence. This has pro-voked criticism from the Board of Quazis but certainly it does not lie inthe mouth of her husband to say that he suffered any prejudice. Further,an incident which is said to have occurred on the day of the weddingitself or the day after was spoken to with circumstantial detail bySaheeda Bee and Majeed. It appears that the husband insisted on thewife swearing on the Quran that a child of her sister Rasheeda was nother own. This incident which was said to have occurred thirteen yearspreviously was not accepted by the Quazi as proved because there werecontradictions in the versions. This again shows that he insisted on ahigh standard of proof before coming to any conclusion favourable to thewife.
How what was the sort of questions which her husband put to thewife which influenced the Quazi to hold against him 1 He put to herthat her own brother Shahabdeen had warned him that she was a
tough ” girl, that her brother-in-law, Razak, the husband of SaheedaBee used to enter her room ” freely without a warning ”, that- her ownbrother had alleged that she was friendly with Sameen, a cousin of
PULLJE, J.—Basheeda v. Ustmf Dheen
573
Kazak, and that she was in the habit during her stay in Negombo of“ entertaining ” a “ discarded ” brother of the husband named Sally andthat she “ roamed ” about as she pleased.
With all respect to the Board of Quazis we cannot agree with theirview that the Quazi had misdirected himself in reaching a finding in thewife’s favour on the issue of false accusations of adultery. The Qnazi, ashe was perfectly entitled to do, decided not to act on the wife’s evidenceunless corroborated. He thought that the witnesses palled by her wereher own relations and not disinterested and he thought it unsafe to lookfor corroboration in their evidence. Bnt having regard to the form andsubstance of some of the questions put by the husband to the wife hecame to the conclusion that they tended to shew that she was speakingthe truth on the fact in issue in this appeal, whether or not the husbandhad made unfounded accusations of adultery. If accusations of adulteryhad been made, then without a doubt those accusations were false. TheBoard says in its order,
“ There is no acceptable evidence which enables us to say that theappellant accused the applicant with the charge of adultery with anyof these persons
The acceptability of the wife’s evidence by the Quazi depended on anumber of factors of which he was in a better position to judge than theBoard of Quazis. He adopted a mode of approach which erred, if at all,on the side of caution and with advantage to the husband but, neverthe-less, invulnerable from the legal standpoint. Unless the Board could saythat the wife’s evidence on the face of it was incredible or that thecircumstance which the Quazi relied on as affording corroboration couldnot in law be regarded as such, there was no justification for- their dis-turbing his finding. In our opinion the Quazi had not misdirectedhimself on the evidence.
Tbs Board has accepted the position that according to the principlesof Muslim law it is cruelty for a husband to so conduct himself as to makethe life of the wife miserable, even though such conduct does not amountto physical illtreatment. By this test the Quazi had ample evidence tofind that the repeater! allegations and insinuations of misconduct hadmade the life of the wife miserable. Her forbearance during a marriedlife of ten years did not require her to treat lightly any further allegationsagainst her. A breaking point was bound to be reached and she partedfor good on the 18th May, 1953.
In our view this appeal should be allowed, the result of which is thatthe order of the Quazi will he restored. The wife will be entitled to thecosts of appeal.
GtrsASBKABA, -T.—I agree.
Appeal allowed.