Abdul Cader V. Razik Et Al.,

1950 Present . Jayetileke C.J. and Swan J.

ABDUL CADER, Appellant, and RAZIK et al., Respondents

S. C. 27-D. C. Colombo, 4,518/G

Muslim Law-Marriage-Muslim maiden of Hanafi sect-Below 21 years of age- Her right to marry without assistance of wali-Age of Majority Ordinance (Cap. 53)-Muslim Marriage and Divorce Registration Ordinance (Cap. 99), Sections 8 (1) and 50.

A Muslim attains " majority ", for purposes of marriage, on reaching the age of bulugh or puberty.

There are Muslims of other sects than the Shaft sect in Ceylon, and, in a matter of marriage or divorce, a Muslim is governed by the law of the sect to which he or she belongs. A Muslim maiden, therefore, of the Hanafi sect who has reached the age of bulugh can enter into a contract of marriage without the intervention of a wali or marriage guardian, or appoint a wall herself for the purpose of her marriage. In the case of a maiden of the Shaft sect, whatever her age may be a wali is necessary.

A Muslim maiden, who was below the age of 21 but who had reached the ago of bulugh entered into a contract of marriage without the consent of her father and having appointed her own wali. Her father was of the Shafi sect but there was evidence to show that she herself was a Hanafi at the time when the marriage was solemnized: -

Held, that there was a valid contract of marriage according to Muslim law.

 APPEAL from a judgment of the. District Court, Colombo.

C. Thiagalingam, with N. M. de Silva, P. Navaratnarajah and V. Arulambalam for the appellant.-Sithy Zubeida, a Muslim minor girl, married at the age of about 15 without the consent of her father The parents. . of the girl were admittedly Shafis. Zubeida's position 

is that she being a Hanafi could marry in accordance with Hanafi tenets without the consent of her father. The case of the appellant (the father) is that the marriage so contracted is bad.

Firstly:-Even if the Hanafi law of marriage was held applicable to Sithy Zubeida the effect of the Majority Ordinance No. 7 of 1876 (Cap. 53) has to be considered.

Capacity to be married and competency to contract a marriage are two different concepts. In the general Marriage Registration Ordinance (Cap. 95), section 14 deals with capacity to be married while section 21 relates to competency to contract a marriage. Similar provision is found- in the Kandyan Marriage Registration Ordinance (Cap. 96) in sections 9 and 10. In Muslim law there is no corresponding statutory provision.

Thus in Ceylon if the pure Hanafi law is held applicable child marriages may well be had. In India the Child Marriages Restraint Act 19 of 1929 had effectively abolished child marriages. A male under 18 and female under 14 cannot enter into the married state. This act is of general application and supersedes Muslim law. Thus in India a Hanafi, Muslim female may only marry on her own when she attains puberty. The Indian Majority Act 18 of 1875 specially exempted from its operation all questions relating to marriage-But in Ceylon the Majority Ordinance expressly enacts in section 2 that " Any law or custom notwithstanding " the age of majority for all purposes is 21. In that context " any law or custom notwithstanding " means " personal or local law " while in section 3 the word" law " is used in reference to the law of the land or the common law or the residuary law. In the result even a Hanafi Muslim female minor is not competent to enter into a contract of marriage. The case of Assanar v. Hamid 1[(1948) 50 N. L. R. 102. ] was wrongly decided and is in conflict with the view taken by de Sampayo J. in the case of Narayanan v. Saree Umma et al.2[ (1920) 21 N. L .R. 439 at 440.]. The Full Bench judgment in Deeresekere et al. v. Goonesekara et al.3[(1903) 1 A. C. R. 135 (F. B.) at 136,] is of binding authority and has not been correctly applied in Assanar v. Hamid 1. See also Muthia Chelty v. Dingiria 4[ (1907)

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