024-NLR-NLR-V-79-1-UMMUL-MARZOONA-Appellant-and-A.-W.-A-SAMAD-Respondent.pdf
Ummul Marzoona v. Samad
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Present:Pathirana, J., Malcolm Pei'era, J. and
Vythialmgam, J.
UMMUL MARZOONA, Appellantand
A. W. A. SAMAD, Respondent
S. C. Application No. 159/77—Board of Quazis No. 1821
Maintenance—Muslim father’s duty to maintain his son-—When does suchduty cease—Exclusive jurisdiction of the Quazi—Muslim Marriageand Divorce Act (Cap. 115), section 48—Maintenance Ordinanceas amended (Cap. 91)—Age of Majority Ordinance (Cap. 66),section 3.
Held : (1) That under the principles of Muslim Law as laid downfor the Shaffi Sect to which the majority of the Muslims of thiscountry belong, a Muslim father is obliged to maintain his son untilhe reaches puberty or the age of 15 years. However, thereafter hisliability ceases unless the son is disabled by disease or infirmity.The fact that the son is engaged in studies is such a disability asis envisaged by this rule and therefore the father’s duty tomaintain continues during this period until his son completes hisstudies, as during that period the son is unable to work andtherefore unable to maintain himself.
(2) That the Muslim . Marriage and Divorce Act (Cap. 115)section 48, vests exclusive jurisdiction in the Quazi in respect ofmarriage and divorce and matters connected thereto such as main-tenance. In regard to persons who are or were legally married andprofess the Muslim faith such matters will have to be decided bythe Quazi in accordance with the Muslim Law of the sect to whichthe parties belong. Neither the provisions of the Maintenance Ordi-nance nor those of the Age of Majority Ordinance consequentlyapply to a case such as this.
Cases referred to :
Abdul Coder vs. Razick, 52 N. L. R. 156.
Assanar vs. Hamid, 50 N. L. R. 102.
Ismail vs. Muthu Maraliya, 65 N. 'L. R. 431.
Jiffry vs. Nona Bintham, 62 N. L. R. 255.
Abdul Coder vs. Razik, 54 N. L. R. 201.
A. L. M. Haniffa vs. A. A. Razack, 60 N. L. R. 287.
Wappu Marikkar vs. Ummaniumma, 14 N. L. R. 225.
Asharafalli Cassamalli vs. Mahammadu Rajaballi, (1945) 48 Bom.
R. 462.
Appeal from an order made by the Board of Quazis.M. S. M. Nazeem, with J. Mohideen, for the appellant.M. F. Miskin, for the respondent.
Cur. adv. vult.
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VYTHXAXJNGAM ,J.—Ummul Marzeona v. Samad
October 24, 1977. Vythialingam, J.
The appellant in this case sued the respondent in the QuaziCourt of Colombo for maintenance in respect of her son. Partieswere married but the respondent divorced the appellant bypronouncing Talak in 1961 and is now married again. TheQuazi ordered the respondent to pay maintenance for the son,the quantum being enhanced from time to time until June, 1976when the respondent agreed to pay Rs. 160 per mensem as main-tenance. On 6.7.1976 the appellant moved for an enforcementof the order, but the respondent resisted on the ground that theboy had reached the age of 15 years and that under the Muslimlaw he was not obliged to pay maintenance after that age.
Admittedly the boy, having been born on 1st August, 1959 isover the age of 15 years but is still a student in the AdvancedLevel Class at Zahira College, Colombo. After inquiry the Quaziheld that the respondent was liable to pay maintenance till theboy completes his studies. The respondent appealed to theBoard of Quazis on the ground that under the Muslim Lawapplicable the liability of the father to maintain his son ceasedafter he attains puberty or the age of 15 years and the Boardallowed the appeal and quashed the order made by the Quazi.This appeal is against that finding.
Under the general Maintenance Ordinance (Cap. 91) the orderfor maintenance in respect of a child legitimate or illegitimatewould cease to be operative on the child reaching the age of 16years unless the Magistrate directs that it should continue untilthe child reaches the age of 18 years (section 7). This limithas now been raised to 21 years by Act No. 19 of 1972. The Ageof Majority Ordinance (Cap. 66) also fixes the age of attainingmajority at 21 years. However it is provided in section 3 ofthe Ordinance that nothing contained in the Ordinance shouldextend to or be construed to prevent any person under the ageof 21 years from attaining his majority at an earlier period byoperation of law. I
I do not think that both these Ordinances apply to the questionas to the age at which the liability of a Muslim father to main-tain his son ceases. The latter because the Ordinance has regardto the attainment of legal majority for general purposes and has
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no application to the attainment of majority by operationof law to questions such as capacity to contract or to marry, forpurposes of custody or maintenance—Abdul Cader vs. Razick,52 N.L.R. 156 ; also Assanar vs. Hamid, 50 N.L.R. 102. The formerbecause in respect of marriage and divorce and matters con-nected thereto such as maintenance in regard to persons whoprofess the Muslim faith, the Muslim Marriage and Divorce Actby section 48 rests exclusive jurisdiction in the Quazi who hasto decide those matters in accordance with the Muslim Law ofthe sect to which the parties belong—section 98 (2) and theMaintenance Ordinance does not apply to Muslims who are orwere legally married—Ismail vs. Muthu Maraliya, 65 N.L.R. 431,nnd Jiffry vs. Nona Binthan, 62 N.L.R. 255.
The question before us has therefore to be resolved in accord-ance with the principles of the Muslim Law which are applicable.The followers of Islam are divided in the main into two divi-sions, the Sunnis and the Shias. Each of them is again dividedinto a number of schools having its own books of authority.The vast majority of the Muslims in India and Sri Lanka belongto the Sunni School of which there are four main sub-divisions,taking their rise from the four great doctors (1) Abu Hanifa,
Malik Ibn Anas, (3) Shaft, and (4) Ahamed Ibn Hanbal.
Although there are Muslims in Ceylon who belong to theHanafi sect—see Adbul Cader vs. Razick, 54 N.L.R. 201, andA. L. M. Haniffa vs. A. A. Razack, 60 N.L.R. 287, yet “ It appearsthat the Moors in Ceylon belong to the Shaffi sect of Sunnis ”per Wood Renton, J. in Wappu Marikkar vs. Ummaniumma, 14N.L.R. 225 at 226. In the absence of any evidence to the con-trary. in the instant case it may be presumed that the partiesbelong to the Shaffi sect and accordingly the principles appli-cable under that school of law would apply. This is the basisalso on which the Board of Quazis proceeded in making theirdetermination.
It is not disputed that under the Shaffi school of law a fatheris obliged to maintain his son until he reaches puberty or theage of 15 years. But after that his liability ceases unless theson is disabled by disease or infirmity. It is argued that beuigengaged in studies is not such a disability as is contemplated inthe rule. But this ignores completely the very basis on which
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the rule is founded, namely that maintenance is payable during'that period because the son is unable to work and therebymaintain himself.
So much so that Wilson states the rule thus “ A man mustmaintain his minor son if and so far as the latter has no suffi-cient property of his own and is unable to maintain himself byhis own labour ; but he may set the boy to work under his ownsupervision or hire him out to strangers and may recoup him-self out of the produce of his labour or out of his wages, as thecase may be, for whatever has been expended on his main-tenance ; provided that the work be not beyond his strength norsuitable by reason of his rank or destined profession ”■—AngloMohamedan Law, p. 204, para. 142. That is, he may be putto work even before he has reached puberty or the age of 15years, if he is able to do so. But of course he goes on to statethat “A man is not obliged to maintain his adult son unlessdisabled by infirmity or disease. ” Ibid, p. 205, para. 143.
In regard to work of a degrading character Amir Ali says thatif the work is “ unsuitable or improper for their rank in life,they would be placed on the same footing as children labouringunder some infirmity.” Mohamedan Law, 5th Ed., Vol. 11, p.428. The word “ infirmity ” is therefore not used in the senseof some physical or mental infirmity. Indeed he states that“The obligation of maintaining male children lasts until theyarrive at puberty. After this, a father is not bound to main-tain his male children unless they are incapacitated from workthrough some disease or physical infirmity or are engaged in-study ”. The emphasis is mine. So that infirmity in this sensewould include incapacity to work because the son is engaged inlegitimate studies.
The Quazi based his decision on the authority of this passagebut the Board of Quazis were of the view that the proposition,suggested by Amir Ali did not appear to be consistent with theposition set out by the Shafi law. They stated that they hadoccasion to hold earlier that on reaching the age of puberty or15 years of age the father’s liability to maintain a son ceases(vide B.Q. case No. 1761) following the decision reported inVolumn IV of the Muslim Marriage and Divorce .Law Reports,p. 117. I have examined the decision in both cases and find that
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apart from laying down the general principle set out abovethey do not consider the question as to whether the father’sliability ceases on the son reaching 15 years of age even thoughhe is incapacitated from working and thereby providing forhimself because he is engaged in studies. No direct authorityhas been cited either way on this question.
But I do not think that in the passage quoted above Amir Aliwas merely stating what the position was under the Hanafi law.Indeed in that very page 428 Amir Ali sets out earlier in regardto another matter what the Hanafi rule was and also the Shiahdoctrine, and then goes on to state the position under the margi-nal note “ General Doctrines ”. There are followers of theShaffie School of law in the coast line in India, among theKoknis of Bombay and the Mopilahs or Mapillahs of Malabar:Fyzee—page 34. Surely if there was such a vital differencebetween what was stated and the rule under the Shafifi schoolhe would have made pointed reference to it.
Indeed on this point there does not seem to be much differencein principle between the four Sunni Schools of law. Tyabjistates of the great founders of the four schools “ Each of thempromulgated his own exposition of the law. At the same timenot only was there no antagonism between them but eachrespected the ability and knowledge of his predecessors or con-temporaries. There is therefore a kind of comity amongst the4th Ed. page 2. In fact in regard to certain matters the Boardfollowers of the four Sunnite Schools ”—Tyabji on Muslim Law,of Quazis stated in an earlier case, Muslim Marriage and DivorceLaw Reports Vol. IV at 52, “The general accepted treatises onMuslim law such as Amir Ali, Tyabji, Mulla, Wilson do notstate that there is a difference in principle between the HanafiSchool and tine Shafi School ”. And again in another case (ibidat page 97) they said “ Under Muslim law—there seems to beno difference in principle between the Hanafi and Shafi School—a father is under a duty to maintain his daughter until she ismarried—A. Fyzee, 2nd Ed. 183, Mulla 13th Ed. Section 370,Tyabji 3rd Ed. Section 318, Amir Ali Vol. II, 5th Ed. page 429 ”.It is significant that in both cases they have referred to theauthority of Amir Ali.
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There is. nothing startling or repugnant to the Muslim law inthe proposition that a Muslim father should be obliged to con-tinue to maintain his adult son if the son is incapacitated fromworking because he is engaged in studies. Thus Amir Ali pointsout (ibid at page 427) “ In consequence of these precepts, theMusulman Civil law imposes on parents the duty of maintainingtheir children and of educating them properly. This obligationrests naturally upon the father ; the Hedaya declares in explicitterms that the maintenance of minor children, rests on theirfather, and no person can be his associate or partner in furnish-ing it (that is, share the responsibility with him)
In regard to adults, that is those who have attained pubertyTyabji states that “ Necessitous sons are entitled to maintenancethough they are adult Tyabji’s Mohamedan law, 4th Ed.Article 322 at 276. He defines “ necessitous ” as meaning “ aperson who is both indigent and unable to earn his livelihood ” :ibid—Ariticle 287 (5) at page 253. Quite obviously a personengaged in studies would be unable to earn his livelihood andwould be a necessitous person. This is a statement of the generalrule as applicable to all the sects, for throughout the world wherethere is a difference between the various schools of law he setsout the different rules. See for example, Article 299 which dealswith the rate of maintenance payable to a wife.
Baillie who deals with the Hanifa code of jurisprudence states–Digest of Mohamedan Law at page 462 (3rd Impression) : —“ Hulwaae has said that the sons of better orders whom it isnot the practice of men to set to hire are to be treated as weak ;and so also students of learning when unable to earn anything ;and their right to maintenance from their father does not abatewhile engaged in legal studies.” This is nothing more than aninterpretation of what is meant by the words “ disabled bydisease or infirmity ” or the words “ necessitous adults ” in theadmitted Shaffi rule and “ disability or infirmity ” in this sensehas a wider meaning than mere physical or mental disability orinfirmity.
Originally Muslim Law consisted of a few simple rules suitedfor the simple society of that time. No educational qualifica-tions were required to perform the simple and uncomplicatedtasks of that age. But as Muslims spread to about 20 coun-
WTHIAliINGAM, J.—Ummul Marzoona v. So,mad21.'
tries of Asia, Africa and Europe in which nearly 425 millionpeople are governed by Muslim law the medieval texts of thetraditional Muslim law were no longer adequate as authoritiesfor the varying demands of political, economic and social forcesand had to be supplemented and even superseded by statuteand customary law. It became necessary to apply to the everchanging conditions, the never changing principles of the law.
The great Prophet of Islam himself approved of this for it issaid that when he sent one of his companions as Governor of aprovince and also appointed him as distributor of justice heasked him :
“ According to what shall thou judge and he replied
“According to the scriptures of God.
And if thou findest nought therein ?
According to the tradition of the Messenger of God.
And if thou findest nought therein ?
Then I shall interpret with my reason ”,
Whereupon the Prophet said “ Praise be to God who hasfavoured the Messenger of this Messenger with what hisMessenger is willing to approve
Thus Chagla, J. as he then was, pointed out in AshrafalliCassanalli vs. Mohamedalli Rajaballi, (1945) 48 Bom. L. R. 642at 652 : “ Now there is no doubt that those ancient Muslim textsmust be considered with the utmost respect. But it must alsobe remembered at the same time that Muslim jurisprudence isnot a static jurisprudence. It is a jurisprudence which has grownand developed with the times and the quotaions from Muslimtexts should be so applied as to suit modern circumstances andconditions ”.
Under the modern conditions even the simplest job requiressome form of educational qualification. The requirement that aMuslim father should continue to support his adult son who isengaged in studies in order to qualify for employment is there-fore in keeping and not in conflict, with the Shaffi School ofMuslim law which requires that a Muslim father maintain
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his adult son who is necessitous or is incapacitated or disabledby infirmity or disease. For an adult son who is engaged instudies is also necessitous or is incapacitated from earning hislivelihood because of his studies.
I would therefore hold that the respondent in this case isliable to continue to maintain his son till he completes his studies.There is no question about his capacity to pay the amount as hehimself has consented to pay the sum ordered. He is only dis-puting the liability to pay because of his understanding of thelaw on account of his researches into it. I would accordinglyset aside the order made by the Board of Quazis and upholdthe order made by the Quazi. The respondent will pay thecosts of the appeal.
Pathirana, J.—I agree.
Malcolm Perera, J.—I agree.
Appeal allowed.