Noorul Naleefa V. Marikar Hadjiar

1947 Present: Canekeratne and Dias JJ.

NOORUL NALEEFA, Appellant, and MARIKAR HADJIAR,
Respondent.

S. C. 170-D. C. Kalutara, 26,076.

Divorce-Action by Muslim wife-Fasah Divorce-Dissolution on ground of leprosy-Jurisdiction of District Court-Grounds of divorce-Powers of Kathi Court-Chapter 99, Legislative Enastments.

The provisions of Chapter 99 of the Legislative Enactments do not preclude a Muslim wife from bringing an action in the District Court for a dissolution of marriage on the ground of leprosy of the husband.

The principle of the Muslim law that leprosy is a ground of repudiating the contract of marriage is still part of the law of Ceylon.

Per DIAS J. : The combined effect of sections 50 and 51 (2) of the Muslim Marriage and Divorce Ordinance (Cap. 99) is to revest in the District Courts the jurisdiction to try actions for divorce which are instituted by Muslim wives against their husbands and which do not fall within the ambit of the definition of " Fasah Divorcee " in section 51 (1). In such an action no decree nisi can be pronounced, no order for alimony or the custody of the children can be made, and it is doubtful whether the wife will be entitled to demand that her costs should be provided by the husband.

APPEAL from a judgment of the District Judge, Kalutara,

H. V. Perera, K.C. (with him M. 1. H. Haniffa, U. A. Jayasundera, G. T. Samarawickreme and M. S. Abdulla), for the plaintiff, appellant.- The question that arises for consideration on this appeal is whether the District Court has in certain circumstances jurisdiction to entertain an action for dissolution of marriage between Muslims. It is cleat that prior to 1929 the District Court had such jurisdiction (see The King v. Miskin Umma 1[(1925) 26 N. L. R. at 343.]), Then the Muslim Marriage and Divorce Ordinance, No. 27 of 1929, was enacted. Section 15 provides that where a wife wishes to effect a Fasah divorce the procedure laid down in a schedule to the Ordinance should be followed. The Ordinance defines what is meant by the terra, "Fasah divorce" (vide section 51). It was one sought by a wife, " on the ground of ill-treatment or for an act or omission on his part amounting to a ' fault' under the Muslim law". It is conceded that where a wife desires to obtain a divorce which falls within the class of Fasah divorces as defined in the Ordinance, the procedure laid down in the Ordinance and that procedure alone must be followed. It is submitted however that the effect of the Ordinance is not to restrict the wife to the kind of divorce defined there. Under the law existing at the time of the enactment of the Ordinance a wife could have sought divorce on other grounds not included in the definition of Fasah divorce. An affirmative statute will not be presumed to repeal the existing law, whether statutory or custom, unless it cannot stand together with it (vide Beale's Cardinal Rules of Legal Interpretation, p. 527). Again as

the District Court had jurisdiction in these matters, that jurisdiction would not be taken away except by express words or necessary implication (vide 31 Hailsham 508 ; Beale p. 384),

[DIAS J.-What is the effect of the introductory words stating that the Ordinance is one to amend and consolidate the law ?] That statement did not appear in the original Ordinance. It has been put in by the Commissioner entrusted with the task of bringing out the Revised Edition of the Legislative Enactments. He had no power to change or add to the introductory words in order to alter the scope of the Ordinance.

[CANEKERATNE J.-The Commissioner has merely put together the two Ordinances dealing with the subject. When he says to amend and consolidate the law, he means the statute law.

That must be so specially in view of section 50 which preserves the Muslim law of marriage and divorce and the rights of Muslims thereunder.

Under the general provisions of Muslim

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