Ambrose J:

This was a civil appeal against a maintenance order made by a Magistrate for payment by the appellant of a monthly allowance of $15 in respect of each of his three children by the respondent.

The parties were married according to Muslim rites at Pontian Johore, in 1945. The appellant divorced the respondent at the Kathi's office at Pontian on 14 August 1955.

The question of fact which the Magistrate had to decide was this: did the respondent voluntarily agree to maintain the children herself at the time of the divorce? He held that she did not. The first point raised by the appeal was whether his decision was wrong.

The appellant deposed that the respondent asked him to divorce her: this was admitted by the respondent. The appellant added that, when she asked him to divorce her, she said that she was prepared to maintain the children in the presence of the Kathi and two witnesses: this she denied.

The judgment of the Magistrate was in no way based upon his opinion of the demeanour of witnesses. I was, therefore, in as good a position as the Magistrate to weigh the evidence.

Evidence corroborating the appellant's testimony was given by the Kathi concerned and the appellant's brother-in-law, who was one of the two witnesses. The evidence of the latter was rejected by the Magistrate on the ground that he was closely related to the appellant and, therefore, neither independent nor disinterested.

The Magistrate also rejected the evidence of the Kathi, taking the view that the Kathi was neither independent or disinterested, because he was the person who granted the divorce to the appellant on his application. The Magistrate clearly misdirected himself as to the true function of the Kathi. Under the Muhammadan Marriage and Divorce Registration Enactment in force in Johore, the Kathi does not grant a divorce but merely registers it. The divorce in this case was effected by the appellant pronouncing one talak. The reason given by the Magistrate for rejecting the evidence of the Kathi was, therefore, devoid of substance.

Another reason given by the Magistrate for rejecting the evidence of the Kathi was that he did not believe the Kathi, when he said that it was unnecessary to incorporate in the divorce certificate the important condition agreed to by the respondent that she would maintain the children. Here attention must be drawn to s. 17 of the Johore Enactment which has been referred to above and which provides as follows:

Nothing in this Enactment shall be construed to render valid or invalid, merely by reason of its having been or not having been registered, any Muhammadan marriage, divorce or revocation of divorce which would otherwise be invalid or valid.

It follows from this section that, if a Muslim divorce is otherwise valid in Johore, failure to register it does not invalidate it. It was not disputed that the divorce effected by the husband pronouncing one talak was valid. According to the Law of Islam, any Muslim of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause. A divorce by the husband at his will, without the intervention of a Court, is called talak: see Mulla's Mahomedan Law, 14th Edn., p. 264. In my opinion, the Johore Enactment does not require the Kathi, when he registers a divorce effected at the will of the husband by the pronouncement of one talak, to register any agreement between the husband and wife as to future maintenance of their children. That being so, the second reason given by the Magistrate for rejecting the evidence of the Kathi was unsatisfactory. In the circumstances, there was no reason why the Kathi's evidence should not have been accepted by the Magistrate.

The evidence of the appellant was not accepted by the Magistrate as there was no written proof of the alleged agreement. In my opinion, oral evidence of the agreement was admissible, there being no statutory requirement that it should be reduced to writing.