Mammadu Nachchi V. Mammatu Kassim

Present: Mr. Justice Wendt.

 

MAMMADU NACHCHI v. MAMMATU KASSIM.

 

P. C., Jaffna, 45,580.
 

     Maintenance-Muhammadan parties-Keeping concubine in the house- " Living in adultery "-Ordinance No. 19 of 1889.
 
    woman as his mistress is not good reason in law for his wife refusing to live with him and claiming separate maintenance. But the husband has no right to ask the wife to come and live in the concubine's house.

    It is improper to address any communication to the Supreme Court about a pending case.
 
    APPEAL by the applicant (wife) from a judgment of the Police Magistrate of Jaffna refusing to order her husband to make an allowance to her by way of maintenance. The facts sufficiently appear in the judgment.
 
    Bawa (with him Akbar), for the complainant, appellant.
 
    NO appearance for the respondent.

Cur. adv. vult.

 

September 19,  1908.WENDT J.-
 

This is an appeal by a Muhammadan wife against the refusal of the Magistrate to order her husband, who is also a Muhammadan, to make her an allowance by way of maintenance. The application was on behalf both of the wife and her child, and in respect of the latter an order of maintenance has been made, against which no appeal has been presented. At the hearing of the application the defendant offered to maintain his wife on condition of her living with him, which she refused to do on the ground that he was " living in adultery." The Magistrate based his refusal of maintenance in respect of the wife on his finding that the respondent was not living in adultery; and the question submitted to me upon this appeal is whether that finding was right, not that such finding necessarily concludes the matter, for the words of the Ordinance are that the Magistrate

 

" may " make an order, not that he " shall."

 

The Magistrate finds that the defendant for the last four years is keeping in his house an unmarried Muhammadan woman named Neina Umma, to whom he says he is married. The Magistrate holds the marriage not proved; but, inasmuch as section 101 of the Muhammadan

" Special Laws "   of  1806  entitles  the  defendant to 

 

keep, besides his lawful wife, " as many concubines as he is able to   maintain, " he holds that the appellant is not justified in refusing  to  live  with  the   defendant,   and  therefore   declines   to   order  her maintenance.

 

Appellant's counsel contended that in order to be a lawful " concubine " a woman must be the slave of a man (Nell, p. 45 ; Hamilton's Hedaya, 2nd edition, p. 182, definition of " Zinna ", Ameer Ali, vol. II., p. 269; Sale's Koran, chapter IV.), and that as slavery was no longer lawful in Ceylon, a Muhammadan could not lawfully have a concubine in addition to his lawful wife. What the writers quoted say is no doubt true of a Moslem country, but it is certainly not true of British India to-day; and in the absence of any vestige  of judicial or other authority for so holding, since slavery was abolished here in 1844, I am not prepared to decide that it is true in Ceylon. Our Maintenance Ordinance (No. 19 of 1889) on this point is substantially a re-enactment of section 488 of the Indian Criminal Procedure Code of 1882. Owing to the circumstance that the Indian enactment as to maintenance occurred in that Code, the Madras High Court in 1893 held that the term " adultery " must be given the meaning defined in the Penal Code, and that consequently it could only be committed by a man, and then only with a married woman; but in 1896 this view was over-ruled by a bench of four Judges of the same Court, who held (Gantapalli Appalamma v. Gantapalli Yellayya 1) that the term was used in the popular sense of a breach of the matrimonial tie by either party. " A difficulty must always arise," said Collin C.J., " in deciding in what cases the adultery of the husband is sufficient cause for the wife to claim maintenance. Amon

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