016-NLR-NLR-V-46-AL-AYED-Appellant-and-AYED-Respondent.pdf
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SOEBT8Z J.—Al-Ayed and Ayed.
19MPresent: Soertsz S.P.J.
AL-AYED, Appellant, and AYED, Respondent.
194—Kathi Court, Slave Island, No. 2,205
Mohr—Claim by Muslim icife—Facts admitted—Requirement of two witnesses—Marriage and Divorce Ordinance (Muslim) (Cap. 99), s. 21 (3).
In a claim for Mahr by a Muslim wife against her husband the require-ment of the rule in regard to at least two witnesses is not peremptory incases in which the facts are admitted.
A
PPEAL from a judgment of the Board of Kathis with the leaveof the Supreme Court.
H. W. Jayawardene,_ for respondent, appellant.
M. M. Kumarahulasingham, for applicant; respondent.
Cur. ado. vult.
December 31, 1944. Soertsz J.—
This was a suit brought by a Muslim wife in the Kathi Court of SlaveIsland to recover a-sum of Rs. 1,000 as Mahr due" to her by her husband.Her sui.t was successful and an appeal by the husband to the Board ofKathis failed. The matter has now com© up before this Court in pur-suance of an order made by it, granting the husband’s applicationfor leave to appeal and the two questions submitted for decision are—
whether the claim for Mahr was satisfied by the granting of the
cheque and whether, thereafter, the wife’s only course was tosue on the ^cheque ?
whether the proceedings before the Kathi were of any legal conse-
quence, the wife and the Court having violated qs alleged,the rule which requires that th© evidence of at least twowitnesses for the wife to be recorded by the Kathi '?
It is this second question that was strongly pressed and I would dealwith it at once.
The Marriage and Divorce Ordinance (Muslim) (Cap. 99) contemplatessuits for divorce at the instance of the husband or of the wife as well asthe claims enumerated, in section 21 of the Ordinance. Section 14provides that in suits for divorce by the husband, the Kathi shall followthe procedure laid down in the second -schedule to the Ordinance.Similarly, section 15 says that in suits for Fasah Divorce brought by thewife, the rules of procedure in the third schedule shall be adopted- Sofar, so good. But when it comes to the question of procedure to befollowed in regard to the claims enumerated in section 21, there is therule, for sub-section (3) of that section says—
“ All such inquiries shall be held as nearly as possible mutatismutandis in accordance with the rules in Schedule III ”.
which is entitled “ Rules to be adopted in the case of a Fasah Divorceby the wife.
SOERTSZ J.—Al-Ayed and Ayed.
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Buie 8 of that schedule says—‘ ‘ The Kathi shall record in the bookto be kept by him for the purpose the sworn statements of the wife andof at least two of her witnesses and the sworn statements of the husband(if he is present) and of his witnesses
The claim made in this case is within the classes of claims enumeratedin section 21 and in virtue of sub-section (3) the rules in the third scheduleshall apply as “ nearly as possible mutatis mutandis Counsel for theappellant basing himself on that requirement, contends that the inquiryin this case which admittedly lacked the evidence of at least two wit-nesses on the side of the wife was an inquiry of no legal consequenceand that, therefore, the order made upon is null and void–
There is, it must be conceded, great literal force in this contention andit is difficult to resist the impression that when. the Legislature framedsub-section (3) of section 21 as it did, it overlooked a case such as this.The rules in Schedule 111. are described as Buies to be adopted in the caseof a Fasah divorce by a wife and it is easy to think of many good reasonsfor the insistence of at least two witnesses being called in support of thewife's evidence in a divorce proceeding regardless of any admission oracquiescence on the part of the husband, but in regard to a claim formaintenance or for Mahr, which are the other claims within the Ordinancea similar – requirement of at least two witnesses in cases in which thefacts are admitted, would be to subject a party to the tyranny of an emptyform. In this instance the aggrieved wife’s sworn evidence was takenand also that of the Lebbe who registered the marriage. They said thatthe Mahr was Bs. 1,000 and that a cheque was given in respect of it-The next entry on the record reads thus—
“ Advocate Seyed Ahamed addressed the Court and accepted theevidence of the Begistrar of Marriage that the Mahr was paid bycheque but contended that the cheque having not been presentedto the bank duly, &c.”.
In my opinion once that admission was made, the wife and the Kathiwere absolved from the requirement of rule 8 in regard to at least twowitnesses in a case like this, in virtue of the operation of the words “ asnearly as possible mutatis mutandis ” although it seems to me that in asuit for Fasah divorce there is a peremptory requirement that the swornstatements of the wife and of at least two witnesses shall be taken. WhatI said in Vmma Saidu v. Hassim Marikar ' must be read in the light ofwhat I have observed in this case.
In regard to the 2nd question I see no reason for differing from the viewtaken by the Board of Kathis.
1 dismiss the appeal with costs.
Appeal dismissed 1
1 43 N. L. B. p. 165.