044-NLR-NLR-V-70-A.-ABDUL-CADER-Petitoner-and-P.-WEERAMAN-District-Registrar-and-3-others-Re.pdf
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Abdul Coder v. Weeraman
Present: H. N. G. Fernando, S.P.J., and G. P. A. Silva, J.A. ABDUL CADER, Petitioner, and
P."WEERAMAN ^District Registrar) and 3 others, Respondents
/S'. C. 280165—Application for Writ of Mandamus and/orCertiorari oil the District Registrar, Kurunegala, and 3 others.
Muslim Marriage and Divorce Act (Cap. 115)—Sections 16, 17, 2t, 29—Validity ofdivorce despite non-registration—Second or subsejuent marriage—Duty ofregistrar to register it.
If a Muslim divorces his wife, section 16 of the Muslim Marriage and DivorceAct makes the divorce valid even if it is not registered. Ha is, therefore,entitled to contract a second marriage on the basis that ha doe3 not have awife of another marriage. The registrar has no power then to refuse to registerthe second marriage on the ground that the notices required by section 24 ofthe Act have not been given.
E. N. G. FERNANDO, 6.P.J.—Abdul Coder v. Weerartian
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A
-^APPLICATION for Writ of mandamus and/or certiorari on theDistrict Registrar, Kurunegala.
M. T. M. Sivardeen, for the petitioner.
S. Sivarasa, Crown Counsel, for the 1st to 4th respondents.
September 22, 19G5. H. N. G. Fernando, S.P.J.—
This is an application for a mandamus requiring a District Registrar,the third respondent, to register the petitioner’s marriage under section17 of Chapter 115.
It would appear that the petitioner had been previously married andthat upon application duly made to a Quazi, the wife of that marriagewas divorced in accordance with the procedure set out in the secondschedule to the Act. Thereafter, under section 29, it was the duty ofthe Quazi to register the divorce. But I understand that the registrationwas not effected for the reason that Quazis had received certain instruc-tions from the Registrar-General in consequence of a decision of thisCourt regarding their jurisdiction. It is not necessary to decide in thiscase whether the Quazi lacked the power to register the divorce undersection 29.
Although the divorce was not registered, section 1G of the Act preservesthe validity of a divorce under the Muslim Law notwithstanding thatthe divorce is not registered. In refusing to register the marriage ofthe petitioner, the third respondent relied upon the provisions of section24 which prevents the registration of a marriage, in the case of a maleMuslim already having a wife, uides3 certain notices are issued to andexhibited by the Quazi of the area. The third respondent took theview that since the divorce of the petitioner had not been registered,it was not a valid divorce and the former marriage w'as still subsisting.On this view', the present marriage could not be registered because thenotices required by section 24 had not been given.
But I have pointed out above that the petitioner’s divorce was byvirtue of section 16 valid, notwithstanding non-registration. Therefore,for the purpose of section 24, he does not have a wife of anothermarriage-
The third respondent is directed to register the marriage on theapplication already made to him by the petitioner.
P. A. Silva, J.—I agree.
Application allowed