IRSHATH

Vs.

ASMIYA

COURT OF APPEAL
SAMAYAWARDHENA,J.
CAJLA/03/2018
BQ/A/60/15/KAL QC/ADDALAICHENAl/8543/FASAH

Muslim Marriage and Divorce Act, section 28(1), Rule 7 and 11 of the Third Schedule-Fasah divorce-Compliance with the Rules salutary but not mandatory-Impossibility of reconciliation-Irretrievable breakdown of marriage

The parties married under the Muslim Marriage and Divorce Act. The respondent wife made an application against the appellant husband before the Quazi seeking a Fasah divorce under section 28(1) of the said Act inter alia on the grounds of failure to fulfil conjugal obligations, harassment, ill-treatment etc. as "faults". The Fasah divorce granted by the Quazi in favour of the respondent was affirmed by the Board of Quazis. The appellant appealed to the Court of Appeal on two grounds: (a) according to Rule 7 of the Third Schedule to the Muslim Marriage and Divorce Act although three Muslim assessors shall be empanelled by the Quazi to assist him in the hearing of the application, the Quazi empanelled only two; and (b) notwithstanding that according to Rule 11 the evidence of at least two witnesses shall be led by the wife, no evidence of any witness was led before the divorce was granted.

Held:

1. In terms of section 28(1) of the Muslim Marriage and Divorce Act where a wife desires to effect a divorce from her husband, without his consent, on the ground of ill-treatment or on account of any act or omission on his part which amounts to a "fault" under the Muslim law governing the sect to which the parties belong, the procedure laid down in the Third Schedule shall be followed.

2. Two assessors have assisted the Quazi in hearing the application. The insistence on leading evidence of two witnesses is salutary. Strict adherence to the Rules in the Third Schedule to the Act is not mandatory. Deen v. Rauff [1997] 2 Sri LR 253 followed.

3. What matters is not the number of witnesses called, but whose version-husband or wife-is more probable or acceptable than the other. Evidence shall be weighted not counted.

4. The attempts made by the Quazi and assessors for reconciliation of the marriage were unsuccessful. The marriage is irretrievably broken down and there is no flint of hope for a reunion. With due regard to the sanctity of marriage, there is hardly any reason why the marriage tie, in the said circumstances, should continue.

Cases referred to:

1. Deen v. Rauff [1997) 2 Sri LR 253 at 257-258

APPEAL from an order of Board of Quazis.

Safana Gui Begum for the Appellant.

Yoosuff Nasar for the Respondent.

cur. adv. vult.

July 11, 2019

SAMAYAWARDHENA, J.

The husband (appellant) filed this appeal with leave obtained from the Judgment of the Board of Quazis dated 17.03.2018 whereby the Fasah divorce granted by the Quazi Court in favour of the wife (respondent) was affirmed.

The parties married under the Muslim Marriage and Divorce Act on 21.06.2012. The appellant went to Qatar on 24.10.2012 and returned on 17.05.2014. The respondent on or about 26.05.2015 made the application in the Quazi Court seeking a Fasah divorce under section 28(1) of the said Act inter alia on the grounds of failure to fulfil conjugal obligations, harassment, ill-treatment etc. as "faults". There are no children from this wedlock.

The position taken up by the appellant before the learned Quazi was that the respondent had applied for Fasah divorce due to compulsion on the part of her parents and not of her own volition. He says he committed no fault. Nor does he say that the respondent committed any fault. He wanted a reconciliation to be brought about between them and to continue with matrimonial life.

It is apparent from the proceedings before the Quazi Court and the Judgment of the Board of Quazis that the learned Quazi has taken every possible step to bring about a settlement but all his attempts have ended in vain.

The respondent has consistently and