Abdul Cader, A.H.M. V. Razik, A.R.A.

[IN THE PRIVY COUNCIL]

1952 Present : Viscount Simon, Lord Morton of Henryton, Lord Cohen
and Sir Lionel Leach

A. H. M. ABDUL CADER, Appellant, and A. R. A. RAZIK et al., Respondents

Privy Council Appeal No. 37 of 1951

S. C. 27-D. C. Colombo, 4518/G

Muslim Law--Marriage-Minor's capacity to marry-Age of majority-Significance of sect--Muslim Marriage and Divorce Registration Ordinance (Cap. 99), s. 50--Age of Majority Ordinance (Cap. 53).

For the purpose of marriage a Muslim in Ceylon attains " majority " on reaching the age of puberty.

In a matter of marriage or divorce a Muslim is governed by the law of the sect to which he or she belongs. A Hanafi girl, therefore, who has attained the age of puberty can marry without the assistance of a Wali or appoint whom she chooses to act as a Wali.

APPEAL from a judgment of the Supreme Court reported in (1950) 52 N. L. R. 156.

D. N. Pritt, Q.C., with Stephen Chapman, for the appellant.

Christopher Shawcross, Q.C., with B. K. Handoo and Sirimevan Amerasinghe, for the respondents.

Cur. adv. vult.

December 2, 1952. [Delivered by LORD COHEN]-

The proceedings in this matter originated with an application by the appellant for the appointment of a guardian of the person and a curator of the property of his daughter the fourth respondent, but the only question to be determined on this appeal is the validity or invalidity of the marriage which took place on the 11th December, 1947, between the fourth respondent who was then age 15 years and two months and one Rasheed Bin Hassan.

The parties are Mahommedans; Mahommedans are divided into various sects, the two sects relevant to the issues in this appeal being the Shafi and the Hanafi. The fourth respondent was married as a member of the Hanafi sect, having appointed her uncle as her Wali for the purpose of the marriage. In the Ceylon Courts the appellant disputed the validity of the marriage on the following grounds.

I. He alleged that the fourth respondent was a member of the Shafi sect and could therefore not be married without his consent as her Wali or agent.

II. He contended that even if she was a member of the Hanafi sect the marriage was invalid either :

(a) because under Moslem law as applied in Ceylon even a Hanafi girl of 15 could not be married without the consent of her father as Wali or ;

(b) because the rules that would otherwise apply to her under Mahommedan Law were overridden by the provisions of the Majority Ordinance, No. 7 of 1865 (Cap. 53 of the New Legislative Enactments), which he alleged makes twenty-one years the legal age of majority for all persons for all purposes.

The trial Judge found as a fact that the fourth respondent was a Hanafi at the time of her alleged marriage, rejected the legal arguments advanced by the appellant and upheld the validity of the marriage. His judgment was confirmed by the Supreme Court on the 28th September, 1950, and it is from that decision that the appellant appeals to this Board.

At the hearing of the appeal Mr. Pritt for the appellant sought to advance a new legal argument which may be stated as follows.

The fourth respondent was the child of Shafi parents. She was born a Shafi and could not become a Hanafi except by exercising a real choice with knowledge of the distinction between the two sects and declaring that choice. In any event she could not while a minor change her religion without the consent of her father.

This argument was not advanced on behalf of the appellant in either Court in Ceylon. It is essentially the kind of argument on which their Lordships would desire the assistance of the Ceylon Courts and their Lordships are not satisfied that if it had been advanced in the Ceylon Courts no further evidence would have been admissible. In all the circumstances their Lordships do not consider that Mr. Pritt should be allowed to advance it before this Board. In face of this ruli

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