1960 Present : T. S. Fernando, J.

M. T. M. JIFFRY, Petitioner, and NONA BINTHAN,
Respondent
S. C. 263-Application in Revision in M. C. Colombo, 30980/A

    Maintenance-Illegitimate children-Muslim parents-Jurisdiction of Quazi-Muslim Marriage and Divorce Act, No. 13 of 1951, 88. 2, 47 (1), 48Maintenance Ordinance (Cap. 76).

A Quazi has no jurisdiction to hear and determine an application for maintenance in respect of children whose mother has at no time boon married to the alleged father. Section 41 (1) (c) of the Muslim Marriage and Divorce Act, No. 130f 1951, relating to" any claim for maintenance by or on behalf of a child (whether legitimate or illegitimate)" must be construed in a way which does not detract from the force of the governing section 2 which provides that the Act" shall apply only to the marriages and divorces, and other matters connected therewith, of those inhabitants of Ceylon who are Muslims".

APPLICATION to revise an order of the Magistrate's Court, Colombo.

M. S. M. Nazeem, with M. T. M. Sivardeen, for the defendant petitioner.

Malcolm Perera, for the applicant-respondent.

Cur. adv. vult.

September 1, 1960. T. S. FERNANDO, J.

On the 29th January 1960 the applicant-respondent made an application in the Magistrate's Court in terms of the Maintenance Ordinance (Cap. 76) claiming an order against the defendant-petitioner for maintenance in respect of her two. illegitimate children aged 18 and 7 months respectively. She alleged that the defendant is the father of these two children. It is common ground that the applicant and the defendant are Muslims and that the applicant has at no time been married to the defendant.

The defendant took objection to the Magistrate entertaining the application on the ground that the Quazi appointed by the Minister for the area in question had exclusive jurisdiction to inquire into and adjudicate upon any claim for maintenance by or on behalf of a child of Muslim parents. On his behalf reliance was placed on sections 47 (1) and 48 of the Muslim Marriage and Divorce Act, No. 13 of 1951 The learned Magistrate, relying upon a statement contained in the judgment of Fernando J. in Abdul Gaffoor v. Joan Cuttilan 1,[1 (1956) 61 N. L. R. at 89.]. that the Kathi Court and the Magistrate's Court have concurrent jurisdiction to hear and deter. mine applications for maintenance, decided that he had jurisdiction to adjudicate on the application. The proceedings before me are designed to canvass the correctness of the Magistrate's decision in regard to jurisdiction.

The relevant part of section 47 (1) and the entirety of section 48 of Act No. 13 of 1951 are reproduced below ;

47 (1).-" The powers of the Quazi under this Act shall include the power to inquire into and adjudicate upon. . . . (c) any claim for maintenance by or on behalf of a child (whether legitimate or illegitimate) ; "

48. "Subject to any special provision in that behalf contained in this Act, the jurisdiction exercisable by a Quazi under section 47 shall be exclusive and any matter falling within that jurisdiction shall not -be tried or inquired into by any other court or tribunal whatsoever."

It was argued on behalf of the defendant that the reference in Abdul Gaffoor v. Joan Cuttilan (supra) to the Quazi's Court and the Magistrate's Court having concurrent jurisdiction to adjudicate on maintenance applications has been made per incuriam and that the attention of the learned judge who decided the case may not have been drawn to section 48 of the Act. The learned judge makes no reference in the judgment to either section, but it is clear that he was dealing with proceedings for maintenance between parties who had been married and divorced, and in respect of those proceedings the Quazi's Court obviously had jurisdiction which was the jurisdiction upheld in appeal. It appears to me that section 48 had the effect of making that jurisdiction exclu