030-NLR-NLR-V-64-R.-S.-M.-ISMAIL-Appellant-and-S.-LATIFF-Respondent.pdf
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Ismail v. Lalijf
1962Present : Sinnetamby, J.
R.S. M. ISMAIL, Appellant, and S. LATIFF, Respondent
S.G. 6IS{61—M. C. Colombo, 311331 AMG
Maintenance—Illegitimate children—Muslim parlies—Jurisdiction of Quazi—MuslimMarriage and Divorce Act, No. 13 of 1951, S3. 2, 47, 4S.
A Quazi has no jurisdiction to entertain an application for maintenance inrespect of illegitimate children of Muslim parties who were at no time married.Section 47 of the Muslim Marriago and Divorce Act, No. 13 of 1951, is controlledand limited by the provisions of section 2.
Jiffry v. Nona Dinthan (1960) 62 N.L.ft. 255, followed.
Appeal from a judgment of the Magistrate’s Court, Colombo.
Ranrjanathan, with M. T M Sivardeen, for the defendant-appellant.
W. Jayewardene, Q.G., with H. Mohideen and K. Palakidnan,for the applicant-respondent.
Cur. adv. vult.
SBSTNETAMBY, J.—Ismail v. Latiff
173
April 3, 1962. Shotetamby, J.—
This is an application for maintenance instituted by the applicant-respondent against the defendant-appellant in the Magistrate’s Courtof Colombo. The parties to the application are both Muslims andthe applicant sought to recover maintenance in respect of two childrenwho are illegitimate. She was at no time married to the defendantnor did she allege the existence of any marriage between them. Thedefendant denied paternity of the two children bat after inquiry thelearned Magistrate held that the defendant was the father of the childrenand ordered him to pay Rs. 25 as maintenance for each of them. Againstthis finding, the defendant appealed.
The only matter argued before me related to the question of jurisdic-tion. Before the Magistrate, a preliminary objection, was taken to hisjurisdiction to try the case on the ground that the Quazi had exclusivejurisdiction in terms of sections 47 and 48 of the Muslim Marriage andDivorce Act, No. 13 of 1951. Section 48 provides as follows :—
“ The jurisdiction exercisable by a Quazi under section 47 shallbe exclusive and any matter falling within that jurisdiction shallnot be tried or inquired into by any other court or tribunal. ”
Section 47 provides that:—
“ the powers of a Quazi shall include the power to inquire andadjudicate upon any claim for maintenance by or on behalf of a child(whether legitimate or illegitimate). ”
Prima facie, this would suggest that all claims for maintenance in respectof illegitimate children are also triable exclusively by a Quazi. Thematter was considered by my brother T. S. Fernando, J. in Jiffry v. NonaBinthan1. In that case my brother took the view that the Quazi hadno jurisdiction to hear and determine an application for maintenancein respect of children whose mother had at no time been married to the"putative father. In construing section 47 he took the view that it wascontrolled and limited by the. provisions of section 2 of the Act whichspecifically states that
“ the Act shall apply only to marriages and divorces and othermatters connected therewith, of those inhabitants of Ceylon whoare Muslims. ”
The first requirement, therefore, is that the matter which the Quaziis empowered to try is one which is connected with a marriage or adivorce. No difficulty arises in respect of maintenance claimed by awife on her behalf or in respect of a legitimate child for such a claimmay be considered to be connected with marriage, but where anillegitimate child is concerned, the matter creates some difficulty. It is
1 (I960) 62 N. L. 2t: 255.
2*R 4860 (0/62)
m
SINNETAMBY, J.—Ismail v. Lalijf
a cardinal principle of construction that provisions contained in differentparts of the same Act which appear to be irreconcilable should beconstrued, if possible, in such a way as to reconcile each with the other.
At first sight, the Muslim Marriage and Divorce Act would appear
in section 47 to contain provisions, empowering a Quazi to entertain
applications for maintenance of illegitimate children, which are
inconsistent with section 2 of the Act, limiting his powers to matters
connected with Marriages and Divorces. Under the Roman-Dutch law,
«-
illegitimate children are confined generally to those children whosoparents are unmarried ; but under the Muslim law, unlike as in theRoman-Dutch law, there exist categories of children who ars deemedto be illegitimate even though their parents are married. Justice T. S.Fernando instanced two such cases but in the course of argument referencewas made to several instances where under the Muslim law, thoughthe parents get married, the children remain illegitimate. These arereferred to both in Ameer Ali in his book on Mohamedan Law andRussel and Suhrawardy in their book entitled “ Mohamedan Law ofMarriage ”. Not only are children of – marriages where the parentsare within prohibited decrees illegitimate but children bom prior tomarriage of parents who are free to get married would despite subsequentmarriage remain illegitimate. Ameer Ali also refers to a child conceivedout of wedlock but born after marriage as being illegitimate (page 236and 238, 4th edition) but any acknowledgment by a father that such achild or a child born even before wedlock is his would make the childlegitimate (Ameer Ali at page 214, 4th edition). It will thus be seenthat even in cases where Muslim parties are married they can havechildren who are illegitimate and as Justice Fernando points out, section47 when it refers to illegitimate children must necessarily be construedto refer to such children. The Marriage and Divorce (Muslim) Act isdescribed in the Act itself as intended “ to make provision with, respectto the marriage and divorce of Muslims in Ceylon and in particularwith respect to the registration of such marriages and divorces”. Themain object, therefore, of that Act is to provide for marriages and divorcesand, as section 2 states, other incidental “matters connected therewith”.If, therefore, in connection with a marriage or a divorce any question ofmaintenance or custody of children is involved, it could legitimatelybe regarded as something which would fall within the jurisdiction of theQuazi, but when the question involved is something quite independentof a marriage or a divorce, it would be correct, I think, to say that theQuazi has no jurisdiction merely because the parties are Muslims. Itis in this way possible to reconcile section 2 of the Act with section 47by limiting the expression “ illegitimate children ” to those childrenof spouses who are in Muslim law deemed to be so, despite the marriageof their parents.
It is not uncommon for courts having jurisdiction in regard to matri-monial matters when dealing with them to make orders in regard to themaintenance and custody of children bom of that marriage. Provisionsof that nature for instance are to be found in the Civil Procedure Code.
Ceylon Coconut Producers' Co-operative Union, Ltd. v. Jayakody
175
In regard to non-Muslims these provisions are limited to legitimatechildren ; but in the case of Muslims, as children born of the parties tothe marriage may in some circumstances be regarded as illegitimatechildren, one can understand the provisions in respect of maintenanceand custody of such children being made in matrimonial proceedings.It seems to me, therefore, that section 47 must be limited to cases wherethe application for maintenance is confined to illegitimate childrenwhose parents were or are married : an applicant may make an appli-cation for maintenance alleging that the defendant was married toher and this may be denied by the defendant, but, nevertheless, theQuazi will have jurisdiction to investigate the matter and, if the marriagehas been established, to order maintenance even for those children ofthat marriage who in Muslim law are regarded as illegitimate. If,however, the marriage is not established, then ho will have no jurisdic-,tion whatever to order any maintenance.
For these reasons, I agree with the view expressed by my brotherT. S. Fernando in Jiffry v. Nona Binthan (supra) and I would accordinglydismiss the appeal with costs.
Appeal dismissed.