ADIYAR VS. AMEEN

COURT OF APPEAL
UPALY ABEYRATNE, L
CA 3/2011
BOARD OF QUAZIS 4242
QUAZI COURT OF KEGALLE CM/68
NOVEMBER 11, 2013

Maintenance for illegitimate child - Quazi Court ordering Maintenance - Board of Quazis by majority holding that an illegitimate child is not entitled to maintenance - Section 4 Muslim Marriage and Divorce Act - Section 471 (c) - Section 48 - Could maintenance be claimed in respect of an illegitimate child from its putative father in terms of the Muslim Marriage and Divorce Act No. 1 of 1965 as amended.

Held:

(1) The law is crystal clear that maintenance could be claimed in respect of an illegitimate child from its putative father in terms of Section 47 (1) cc.

(2) The Muslim Marriage and Divorce Act Section 48 vests exclusive jurisdiction in the Quazi in respect of marriage and divorce and matters connected there to such as maintenance.

APPEAL from the Order of the Board of Quazis

Cases referred to:

(1) Pallitambi Vs. M.M. Savariathumma 73 NLR 572
(2) Nizam Vs Beedi 1998(1) SLR 47
(3) Ummul Marzoona Vs. A.W.A. Samad 79 NLR 209

A.R Surendra PC with Sufan Gul Begam for Applicant Respondent petitioner.

M.F. Miskiri with W.A.H. de Silva for the Respond Appellant Respondent.

Cur.adv.vult.

February 7th, 2014
UPALY ABEYRATNE, J

The Applicant Respondent-Petitioner (hereinafter referred to as the Appellant) in this Application has sought leave to Appeal from an order of the Board of Quazis dated 25.06.2011 and leave was granted.

The Appellant has stated that she made an Application bearing No CM/68 against the Respondent Appellant Respondent (hereinafter referred to as the Respondent.) in the Quazi court of Kegalle seeking inter aba maintenance for the child named Mohamed Abdul Rahaman. When the matter came up before the Quazi Court on 27.01.2007 the Respondent admitted that according to the DNA report he is the father of the said child. Thereafter the Quazi Court has made order to pay a sum of Rs. 5500/- per month for the maintenance of the said child.

Thereafter the Respondent preferred an appeal to the Board of Quazis The Board of Quazis by a majority decision dated 25.06.2011 allowed the Respondent's appeal. It appears that the majority of the Board of Quazis was of the opinion that Quazi has no power under the Muslim Marriages and Divorce Act to order maintenance in respect of an illegitimate child and a putative father was not liable to pay maintenance under the Shariah Law.

The learned counsel for the Appellant submitted that the question whether maintenance could be claimed in respect of an illegitimate child from its putative father in terms of Section 47(1) (cc) of the Muslims Marriages and Divorce Act was not raised either by the Board of Quazis or the Respondent at any stage of hearing. He further submitted that according to the minority

judgment this question had arisen when there was a discussion among the board members regarding the decision to be arrived at in the appeal. Some members of the board had expressed that a putative father is not liable to pay maintenance under the Shariah Law.

I now deal with the said question of law. The question whether a Quazi can order maintenance in respect of an illegitimate child where both the mother and putative father are muslims is governed by the express provisions of Section 47(1) (cc) of the Muslim Marriages and Divorce Act Section 47(1) (cc) of the said Act stipulates that the powers of the Quazi under this Act shall include the power to inquire into and adjudicate upon notwithstanding anything to the contrary in section 2, any claim for maintenance by or on behalf of an illegitimate child, where the mother of such child and the person from whom maintenance is claimed are Muslims.

It is apparent from the majority judgment of the Board of Quazis at page 137 and 138 of the brief that they have misled themselves in understanding the meaning of Section 47(1) (cc) and Section 2 of the M