King V. Miskin Umma Et Al.,

Present: Bertram C. J. and Jayewardene A. J.

THE KING v. MISKIN UMMA et al.

4-D. C. (Grim.) Kegalla, 2,354.

Muslim law-Divorce by wife-Judicial decree-Civil Procedure Cods, Chapter XLII.

Under the Muslim law a wife is only entitled to a divorce if her husband effects the divorce himself, or the divorce is granted by a decree of Court. In Ceylon a District Court is the competent authority for granting such a divorce.

As Chapter XLII. of the Civil Procedure Code floes not apply to Muslims, such an action for divorce must be governed by the general rules of civil procedure.

Per Bertram C.J.-The Code of 1806 is not exhaustive of the Muslim law applicable to Ceylon. It has to be read in the light to the general principles of that jurisprudence

THIS case was reserved by the District Judge of Kegalle for the consideration of the Supreme Court under section 358 of the Criminal Procedure Code upon a question of law arising from a charge under 362 (ft) of the Penal Code. The accused were Muslims, and the first accused, who is the daughter of the second accused, was charged with marrying a second time during the lifetime of her husband, and the second accused was charged with abetment of

the offence. They were convicted, and sentenced to undergo simple imprisonment till the rising of the Court. The facts of the case and his finding were stated by the District Judge as follows: -

"At the hearing of the said charges it was proved that the first accused did contract a second marriage during the lifetime of the first husband, and that the second accused, her father, solemnized the marriage on each occasion according to Muhammadan customs. But it was contended on the part of the accused that the first marriage was validly dissolved by means of a document called the Passauhu kadutham, executed by a Mowlana before the second marriage was contracted, and that therefore, the second marriage was not void, and that the accused could not be held to be guilty of the offence under section 362 (b) of the Ceylon Penal Code.

"But I being of opinion that the document pleaded was of no force or avail in law, and that the practice in question was not one recognized either by the general Muhammadan law or our local Code on Muhammadan law for the reasons stated in my judgment, held the first marriage was not validly and legally dissolved, and that the only way in which a Muhammadan wife could obtain a valid divorce without the consent of her husband was through the machinery of the District Court, and found the accused guilty of the charges laid against them."

Akbar, S.G. (with him J. E. M. Obeysekere, C.C.). for the Crown.-The law laid down in the Code may be supplemented by text-books recognized as authorities. Under the Muslim law, the husband has the right of divorce, without going before a tribunal, subject to certain safeguards. As, for example, he has to pay the wife the maggar as soon as he divorces her. He has to explain his action to friends who may attempt a reconciliation. He has to issue three letters of talak, and before the third talak a reconciliation is possible. Now that elders are no longer recognized, the husband has the right of divorce straight away. The second method of divorce is by khula, where the wife wants the divorce with the consent of the husband, the consideration being the waiver of the maggar. The third kind is mubarat, divorce by mutual consent. The fourth method recognized is by a judicial decree.

The Shafei law extends to the whole of the Colony. In the matter of judicial divorce Wilson on Muhammadan Law, ch. 3, page 143, shows the difference between the Shafei and the Hanafi laws. A wife cannot divorce herself without her husband's consent except through means of a judicial decree.

When the husband is unable to maintain he must divorce her, if he does not, the Kazi does it on his behalf.

In Rabia Umma v. Saibu [1 (1914) 17 N. L. R. 338. ]

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