Rabia Umma V. Saibu

1914 Present: Wood Renton A. C. J. and De Sampayo A. J.

RABIA UMMA v. SAIBU.

71-D. C. Kandy, 3, 019.

Muhammadan law-Right of wife to divorce husband on the ground of desertion-Expert evidence,

The Shafei law, which is applicable to Moormen in this Colony, recognizes the right of a wife in certain circumstances to divorce her husband on the ground of desertion.

The case was sent back to ascertain how far, if at all, and subject to what conditions, that right has been admitted as a matter of custom in Ceylon.

APPEAL from a judgment of the District Judge of Kandy (P. E. Pieris, Esq. ). The facts appear from the judgment of Wood Renton A. C. J.

Hayley, for the intervenient, appellant. -The appellant, prior to her marriage with Ossen Saibu Mohamadu, had dissolved her marriage with Ahamadu Lebbe, and is therefore the legal wife of Ossen Saibu. Husband's inability to maintain or desertion is a good ground for divorce under the Muhammadan law. The wife may divorce the husband for desertion without the intervention of Court. Counsel cited Amir Ali's Muhammadan Law, vol. II., p. 25; Tyabji's Principles of Muhammadan Law 168; Muhammadan Code of 1806, sections 92 and 93; Ageska Umma v. Abdul Carim1; Bandirala v. Mairuma Natchia 2.

If the evidence of the nature of the ceremony required for a divorce is insufficient, the case may be sent back for further evidence on that point.

Bawa, K. C. (with him J. W. Silva), for the petitioner, respondent. - It is not open to a Muhammadan wife to get a divorce from a husband without an order of a Judge. There is no reason shown for not having led all available evidence at the trial, and for obtaining an indulgence from this Court to lead further evidence.

Counsel cited Nell's Muhammadan Law 44 and 45; Tyabji, p. 170 (s. 211); Muhammadan Code of 1806, sections 74 and 75.

Hayley, in reply.

Cur. adv. vult.

July 24, 1914. Wood Renton A. C. J. -

The question involved in this case is whether the intervenient, the appellant, Rabia Umma, was one of the legal wives of Ossen

Foot notes:

1 (1880) 4 S. C. C. 13.
2 (1912) 16 N. L. R. 235.

Saibu Mohamadu, who has died intestate, and whose estate is being administered by the petitioner, the respondent, his son-in-law. The learned District Judge has held that Ossen Saibu Mohamadu was legally married to the appellant, and that they lived together as husband and wife for some years, until his death, but that the appellant, before her marriage to Ossen Saibu Mohamadu, was the lawful wife of Ahamadu Lebbe. The respondent does not dispute the former of these findings for the purpose of this appeal, and the appellant accepts the latter. She contends, however, that, prior to her marriage with Ossen Saibu Mohamadu, her former marriage with Ahamadu Lebbe had been dissolved by her own act on the ground of his desertion. The learned District Judge held, on the materials before him, in the first place, that it was not competent for the appellant under Muhammadan law to dissolve her marriage with Ahamadu Lebbe in the manner which she indicated, and, in the next place, that even if such a dissolution could have been legally effected, the evidence was insufficient to show that it had taken place.

In regard to both of these points, the findings of the District Judge are, on the evidence with which he had to deal, in my opinion, quite right. The appellant did not call the Hadjiar, who, according to her, administered to her the oath of renunciation. Her witnesses, Mohamadu Tamby and Ana Mohamadu Lebbe, had the vaguest possible recollection of the character of the ceremony which they said they had witnessed. The evidence of Habibu Lebbe was obviously interested, and although the Lebbe by whom the appellant was married to Ossen Saibo was called, not a single question was put to him on her behalf with a view to showing that, according to the Muhammadan Code of 1806, a wife could divorce her husband on the ground of desertion

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