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

048-NLR-NLR-V-54-A.-H.-M.-ABDUL-CADER-Appellant-and-A.-R.-A.-RAZIK-et-al-Respondents.pdf

LORD COHZE3ST—Abdul Coder v. Razik
201
[In the Privy Council]
1952 Present: Viscount Simon, Lord Morton of Henryton, LordCohen and Sir Lionel Leach
A. H. M. ABDUL CADER, Appellant, and A. R. A. RAZIK et al.»
Respondents
Privy Council Appeal No. 37 of 1951S. C. 27—D. C. Colombo, 4518/G
Muslim Law—Marriage—Minor's capacity to marry—Age of majority—Significanceof 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 ” onreaching the age of puberty.
In a matter of marriage or divorce a Muslim is governed by the law of thesect to which he or she belongs. A Hanafi girl, therefore, who has attained theage of puberty can marry without the assistance of a Wali or appoint whomshe chooses to act as a Wali.
.^LpPEAL from a judgment of the Supreme Court reported in (1950)52 N. L. R. 156.
N. Pritt, Q.C., with Stephen Chapman, for the appellant.
Christopher Shawcross, Q.C., with R. K. Handoo and SirimevanjLmerasinghe, for the respondents.
Cur. adv. vult.
December 2, 1952.[Delivered by Lord Cohen]—
The proceedings in this matter originated with an application by theappellant for the appointment of a guardian of the person and a curatorof the property of his daughter the fourth respondent, but the onlyquestion to be determined on this appeal is the validity or invalidity of-the marriage which took place on the 11th December, 1947, between thefourth respondent who was then age 15 years and two months and oneRasheed Bin Hassan.
The parties are Mahommedans; Mahommedans are divided intovarious sects, the two sects relevant to the issues in this appeal being theShafi and the Hanafi. The fourth respondent was married as a memberof the Hanafi sect, having appointed her uncle as her Wali for the purposeof the marriage. In the Ceylon Courts the appellant disputed the validityof the marriage on the following grounds. I.
I.He alleged that the fourth respondent was a member of theShafi sect and could therefore not be married without bis consentas her Wali or agent.
202LORD COHEN—Abdul Coder v. Bazik
II. He contended that even if she was a member of the Hanafisect the marriage was invalid either :
(а)because under Moslem law as applied in Ceylon even a Hanafi.girl of 15 could not be married without the consent of her father asWali or ;
(б)because the rules that would otherwise apply to her underMahommedan Law were overridden by the provisions of the MajorityOrdinance, No. 7 of 1865 {Cap. 53 of the New Legislative Enactments),which he alleged makes twenty-one years the legal age of majorityfor all persons for all purposes.
The trial Judge found as a fact that the fourth respondent was a Hanafiat the time of her alleged marriage, rejected the legal arguments advancedby the appellant and upheld the validity of the marriage. His judgmentwas 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 toadvance a new legal argument which may be stated as follows.
The fourth respondent was the child of Shafi parents. She was borna Shafi and could not become a Hanafi. except by exercising a real choicewith knowledge of the distinction between the two sects and declaringthat choice. In any event she could not while a minor change her religionwithout the consent of her father.
This argument was not advanced on behalf of the appellant in eitheiCourt in Ceylon. It is essentially the kind of argument on which theirLordships would desire the assistance of the Ceylon Courts and theirLordships are not satisfied that if it had been advanced in the CeylonCourts no further evidence would have been admissible. In all thecircumstances their Lordships do not consider that Mr. Pritt should beallowed to advance it before this Board. In face of this ruling Mr. Prittadmitted that he could not go behind the concurrent finding of the CeylonCourts that the fourth respondent was a Hanafi at the time of the allegedmarriage. Their Lordships have therefore only two points to determine.
Whether the Mahommedan Law as incorporated into the Lawof Ceylon included the provision, which it was admitted exists ingeneral Mahommedan Law, that a Hanafi girl who had attained the
. age of bulugh (puberty) could marry without the assistance of a Walior appoint whom she chose to act as a Wali and
Whether the Majority Ordinance overrode the provisions of theMahommedan law as to marriage and thus made it impossible forthe fourth respondent while under 21 to enter into a valid marriagecontract, at any rate without the consent of her father.
On the second point their Lordships find themselves in completeagreement with the Supreme Court. Mr. Pritt called their attentionto a number of authorities which indicated a difference of opinion in theCourts of Ceylon as to whether for all purposes a Muslim minor attainedmajority on reaching the age of puberty. Like the Supreme Court their
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LORD COHEX—Abdul Coder u. Razik
Lordships do not find it necessary to resolve this difference. In Nara-yanan v. Saree Umma1 De Sampayo J. referred to his earlier decisionin Marikar v. Marikar 2 and pointed out at p. 440 that “ there are twokinds of * majority * under Muhammadan law, namely, one as regards-capacity to marry without the intervention of a guardian, and the otheras regards a general capacity to do other acts as a major.
Their Lordships agree with the Supreme Court that for the purpose ofmarriage a Muslim in Ceylon attains “ majority ” on reaching the ageof puberty and would add that none of the cases cited suggested a contraryconclusion.
There remains for decision only the first point. Mr. Pritt admits thatunder the Mahommedan Law as laid down in the text books a Hanafigirl who attained the age of puberty does not require a Wali and mayappoint whom she chooses to act as Wali, but he contends that this pro-vision has not been incorporated into the law of Ceylon. He foundshimself on the Mahommedan .Code of 1806 which purported to recordthe usages of the caste in force in that year and in particular on Article64 which provides that “ a person wishing to marry, application must bemade to the bride’s father and mother for their consent ”. But thecode of 1806 has been repealed ; the place of those sections which dealtwith intestate succession has been taken by the Muslim Intestate Succes-sion and Wakfs Ordinance, No. 10 of 1931 (Cap. 50of the New Legislative"Enactments), and the place of those sections which dealt with marriageand divorce has been taken by Ordinance No. 27 of 1929 as amended byOrdinance No. 9of1934(Cap. 99). Section 50of Cap. 99reads asfollows :—“ The repeal of sections 64 to 102 (first paragraph) inclusive of theMohammedan Code of 1806 which is effected by this Ordinance, shallnot affect the Muslim Law of marriage and divorce, and the rights ofMuslims thereunder ”. Mr. Pritt argued that notwithstanding thisprovision their Lordships must look at the repealed Code and on anymatter covered by it must treat the code as laying down the Mahommedanlaw which was incorporated into Ceylon. He found himself boundto admit that where the code was silent on any matter recourse shouldbe had to text-books for the relevant Muslim Law, but he argued thatunless the code was ambiguous on the point under consideration, recourseto the text-books on any matter covered by the code was not permissible.He relied on the observations of Schneider A.J. in Rahiman Lebbe andanr. v. Hassan Ussan Umma and others 3 where he said that recourse totreatise is only had “ to elucidate some obscure text in our writtenMohammedan Law or in corroboration of evidence of local custom ”.Their Lordships think that this was too narrow a limitation even whenthe code was in force but in any event they agree with the SupremeCourt that the argument cannot prevail now that the code has beenrepealed. As the Supreme Court pointed out the code was adopted ata time when it was thought that all Muslims in Ceylon were adherentsof the Shall sect, and when the Muslim Intestate Succession and Wakfs-Ordinance (Cap. 50) was adopted it was provided that the law applicable
1 (1920) 21 N.L.R. 439.2 (1915) 18 N.L.R. 481.
(1916) 3 C.W.R. 88 at p. 99.
204
Abdulla v. Buhari
to the intestacy of a deceased Muslim domiciled in Ceylon should be theMuslim Law governing the sect to which he belonged. In these circum-stances the Supreme Court sum up their conclusion on this point inlanguage which their Lordships would respectfully adopt :
“ The Marriage and Divorce (Muslim) Ordinance, No. 27 of 1929,as amended by Ordinance 9 of 1934 was proclaimed on 1st January,1937. By that time the Legislature had openly recognised the rightof Muslims in certain matters to deal and be dealt with accordingto the law governing the sect to which they belonged. It was, there-fore, in our opinion, unnecessary to say so in so many words in Section50 of Cap. 99. The words ‘ Muslim Law ’ in that section cannotmean anything more or less than the Muslim law governing the sectto which the particular person belongs. We would, therefore, holdthat in a matter of marriage or divorce a Muslim is governed by the lawof the sect to which he or she belongs. ”
For these reasons their Lordships agree with the Supreme Court thata valid contract of marriage was entered into between the fourth respon-dent and Rasheed Bin Hassan on the 11th December, 1947, and willhumbly advise Her Majesty to dismiss the appeal. The appellant mustpay the respondents’ costs thereof.
Appeal dismissed.