Present : De Sampayo J. PATHUMMA   v.   CASSIM.

124-C. R. Colombo, 65,913.

Muhammadan     law-Claim for maggar and kaikuli-Is separation      a defence ?-Kaikuli spent for the sustenance of marriage.                        

The     fact     that     a     Muhammadan     wife     wilfully     separated     herself from her husband and refused to return to him was held not a defence against a claim by the wife against her husband for maggar or  kaikuli.

" Dowry or kaikuli is held in trust by a husband for the wife, and cannot be withheld on the ground that it has been spent for the sustenance of the marriage. It may, perhaps, be satisfied if the wife should willingly accept from the husband jewellery or any other thing in lieu of money. "

THE facts appear from the judgment.

Abdul Cader, for defendant, appellant.-Kaikuli as such is unknown to Muhammadan law proper, and is not even referred to in the text books. In Ceylon it has been held that dowry, or seethanam, paid to the husband cannot be reclaimed, even if the term kaikuli is used in that connection. In Saibo v. Saibo 1 this Court has held that where in a deed of donation both terms were used to describe the gift, kaikuli was a synonym for dowry, and the benefit of the donation should go to the husband. If the Muhammadan law applicable to gifts is to govern a matter of this kind, kaikuli, being essentially a gift in consideration of marriage, cannot be reclaimed either by the bride's father or the bride. Again, if the thing gifted has been consumed or spent, it cannot be reclaimed. The husband in this case says that he spent it for the sustenance of his wife and himself, and further gave his wife furniture and jewellery. It is idle to invent a trust in this connection, because such a trust must be expressly created. Moreover, Wakfs, or trusts recognized by Muhammadan law, have nothing to do with marriage settlements. In Ceylon kaikuli has been confused with maggar, or the Islamic Dower, and this confusion has led to bad decisions in the cases reported in Vanderstraaten's Reports, pp. 162 and 196. Legal rights re kaikuli have to be regulated by the customs and usages prevailing among Muhammadans in Ceylon. And they have been collated in this respect in the case reported in Marshall's Judgments, p.  221.    This case falls under proviso  (1),  just as the other eases

1 (1916) 2 C. W. R. 263.

in Vanderstraaten's Reports   have been   decided as   falling under    Proviso   (2).    That  decision  is  conclusive  on  this  point,   and  has been referred to and approved in case reported in Vanderstraaten's Reports, p. 162.

H. V. Perera, for plaintiff, respondent.-There is no difference between kaikuli and maggar. It has been so held by this Court. See Saibo v. Saibo 1 and Vanderstraaten's Reports, p. 196. It is settled law that maggar can be recovered by the wife at any time of the marriage. It is submitted that kaikuli is similarly recover­able. Although kaikuli is given to the husband, it is really to be held by him in trust for the wife, and, according to the decisions of this Court, " forms a settlement exclusively for her own personal benefit. " Being trust property, it can be demanded by the wife at any time. The case reported in Marshall's Judgments contains no binding decision. In that case the Supreme Court having taken the evidence of eight Moorish assessors gave certain general directions to the District Court, and also directed that the District Court should take further evidence on law and custom.

September 4, 1919.    De Sampayo J.-

The parties to this action are Muhammadans, the plaintiff being the wife of the defendant. They were married to each other on January 23, 1916. On the occasion of the marriage the defendant agreed to pay to the plaintiff as maggar the sum of Rs. 150, and the parents of the plaintiff gave to the defendant a sum of Rs. 150 for the plaintiff's dowry or