1932 Present : Jayewardene A.J.

JAMALDEEN v. HAJIRA UMMA.

179-C. R. Gampola, 10,119.

Muslim Law-Wife divorced by husband-Action by husband to recover thali - Jurisdiction of Court of Requests.

Under the Muslim Law a husband who has divorced his wife is not entitled to recover the thali given by him to her at marriage.

In such a case the Court of Requests has jurisdiction to determine whether there has been a valid divorce between the parties.

APPEAL from a judgment of the Commissioner of Requests, Gampola.

E. Navaratnam, for defendant-appellant.

H. E. Garvin, for plaintiff-respondent.

June 30,1932. JAYEWARDENE A.J.-

The plaintiff alleged that in May, 1929, on the occasion of his marriage to the defendant, he gave the defendant, his wife, a gold sovereign nacklace known as "thali", that in March, 1931, he divorced his wife, and that she has become liable to return the thali or to pay its value. The defendant denied the divorce, and pleaded also that the plaintiff was in wrongful possession of a portion of the thali containing precious stones of the value of Rs. 75. She denied her liability to return it. The learned Commissioner of Requests entered judgment for the plaintiff as prayed for and the defendant has appealed.

The Commissioner held that there had been a legal divorce, and the first point raised was that the Court of Requests had no jurisdiction to determine this question, and that the District Court alone had jurisdiction in all matrimonial matters under sections 64 and 77 of the Courts Ordinance, No. 1 of 1889. In this case the plaintiff does not seek to obtain a divorce. He alleges that a divorce had already been obtained. It is open to the Court of Requests to determine whether a valid divorce subsists between the parties. It was held in C. R. Batticaloa, 9,352- S. C. M. 21.10.1869 (Vanderstraaten's Reports, p. 25), that there is no provision in the Administration of Justice Ordinance which prevents the Court of Requests entertaining such a case. The Administration of Justice Ordinance, No. 11 of 1868, like the Courts Ordinance conferred exclusive matrimonial jurisdiction on the District Courts. In Beebe v. Pitche, [1 26 N. L. R. 277.] it was held that the Court had to inquire into a matrimonial matter in an action to enforce the provisions of section 86 of the Mohammedan Code of 1806, and that, the Court of Requests had no jurisdiction. The present case is different and is governed by the ruling in the case in Vanderstraaten's Reports.

As regards the thali, there is the allegation in the plaint that the plaintiff gave it to the defendant on the occasion of the marriage. The plaintiff stated in his evidence in cross-examination that the thali was a gift from him to his wife at his marriage. In re-examination he tried to modify this by saying that the thali remained his property and was not a gift but a marriage symbol. The plaintiff called Rahiman, his brother-in-law, and also Habibu Mohamadu, the High Priest of Nawalapitiya, to support him. The High Priest says that the thali is not a gift but a symbol of marriage and if a divorce takes place, the thali must be returned to the husband by the wife.

The tying of the thali is a Hindu custom which the Mohammedans of Ceylon have adopted from their Tamil-speaking brethren. Abbe Dubois who devoted thirty years of his life to study Hindu customs, adopting their garb, their manners, and even their prejudices, in his book entitled Hindu

Manners, Customs, and Ceremonies says at page 224:-"As soon as the mangalashta is finished they fasten on the thali, that is, the little gold ornament which all married women wear round their necks; the thali is strung on a little cord which is dyed yellow with saffron water, and composed of 108 very fine threads closely twisted together. Other little ornaments of gold are also added, round which are fastened flowers and fine black seeds. Two handfuls