Beebe V. Pitche

Present: Jayewardene A.J.

155-C. R. Gampola, 6,257.
 

Muslim law-Wife's right to maggar-Vesting of right-Consummation of marriage-Subsequent adultery-Desertion-Husband's claim for double the value of maggar-Muhammadan code., ss. 80-86.

Under Muslim law when a marriage has been consummated, the wife's right to maggar is confirmed, and is not lost by her subsequent apostasy or adultery.

Sections 80-86 of the Code deal with the subject of divorce by khula, i.e., divorce at the instance of the wife. If in Ceylon a husband grants his wife such a divorce, he would be entitled to demand from her double the value of the maggar. She would, however; have the right to set off against it the maggar due to her. If the husband can prove before a Court of competent jurisdiction that his wife persists in her refusal to be reconciled to him, he can claim to have restored to him double the value of the maggar without proving that all the requirements of sections 80-84 have been complied with. A divorce must precede or accompany the liability to restore double the value of the maggar under section 86.

APPEAL from a judgment of the Commissioner of Requests, Gampola. The plaintiff, the wife of a Muslim, sued her husband for the recovery of a sum of Rs. 280.40, of which a sum of Rs. 179.40 represented maggar and the balance kaicooly. Her right to Kaicooly was admitted, but the husband contested his liability to pay the maggar, on the ground that the plaintiff separated herself and left his house without any reason, although he was willing to live with her. In consequence of such desertion, he claimed to be entitled to recover double the value of the maggar according to the law prevailing among the Muslims of Ceylon. At the trial no evidence was led, but it was admitted on behalf of the wife that she refused to live with the defendant. The Commissioner of Requests held that the facts relied upon by the defendant did not constitute a defence to the plaintiff's claim for maggar.

J. S. Jayewardene, for defendant, appellant. Garvin, for plaintiff, respondent.

September 8, 1924. Jayewardene A.J.-

This is an action between Muslim parties in which the question, whether a wife, who refuses to live with her husband who is prepared to receive her, is entitled to claim her maggar, arises 

for decision. In this case the wife claimed a sum of Rs. 280.40 from her husband, Rs. 179.40 as maggar and the balance Rs. 101. as kaicooly.

Her right to the kaicooly is admitted; but the husband contests his liability to pay the maggar, on the ground that the plaintiff separated herself and left his house without any cause or reason, whatsoever, although he was and is willing to live with her; and in consequence of such desertion, he not only denied his liability to pay the maggar, but he also claimed to be entitled to recover double the value of the maggar according to the customs and laws prevailing among the Muslims in Ceylon. In support of his claim. to double the value of the maggar, reliance is placed on section. 86 of the Muhammadan Code of 1806, which declares a wife liable to pay double the value of the maggar, if she persists in her refusal to be reconciled to her husband.

At the trial no evidence was led, but it was admitted on behalf of the wife that she refused to live with the defendant.

The learned Commissioner after hearing argument held that the facts relied on by the defendant did not constitute a defence to the plaintiff's claim for maggar.

He based his decision on the judgment of this Court in Pathumma v. Cassim [1 (1919) 21 N. L. R. 221.].

As regards the claim for double the value of the maggar, he said: -

" The provisions of the Muhammadan Code do not appear to have been followed, and besides they are hedged in with so many conditions that to take advantage of them, defendant must prove that all the necessary steps to bring about a settlement have been taken. "

He accordingly held

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