057-NLR-NLR-V-57-HASEENA-UMMA-Appellant-and-HASHIM-Respondent.pdf
1955Present: Gratiaen, J., and Swan, J.HASEEXA U3IMA, Appollant, and HASHIM, Respondent
S.G. 331—D. C. ICahdy, M. It. 4,929
Muslim Laur-r-Claim for kaikuii—Prescription.
2o cause of action for the recovery of kaikuii can be said to be comploteuntil there hns been a clear and unambiguous demand by the person entitledto claim it.
Whore a Muslim wife sued her husband for tho recovery of kaikuii more than'three years aftor the date of tho dissolution of tho marriage but hod made nodemand for it until very shortly before the action commenced—
Held, that the claim was not prescribed. Tho proscriptive poriod for therecovery of tho kaikuii commenced on the date of tho domand and not on thodate of tho dissolution of the marriage.
^^.PPEAL from a judgment of the District Court, Kandy.
A. M. Ameen, for the plaintiff appellant.
Xo appearance for the defendant respondent.
Cur. adv. vult.
October 13, 1955. Gkatiaen, J.—
The only question for decision in this appeal is whether the claim ofa Muslim wife to recover a sum of Rs. 1,001 paid to her husband as“ kaikuii ” on the occasion of their marriage is prescribed. It is commonground that such a claim becomes time-barred within three 3rcars fromthe date on which the cause of action arose. The marriage betweenthe parties was dissolved on 8th July 1948, and this action was institutedon 1st October 1952. The learned District Judge took the view thatthe cause of action arose on tho date of dissolution of tho marriage, andthat the claim was therefore prescribed.
The judgment under appeal would have been perfectly correct if theclaim was for Mahr as opposed to Kaikuii. According to Mohammedanlaw, it is essential to the constitution of a valid marriage that thereshould be a consideration (Mahr) moving from the husband in favourof the wife for her sole and exclusive use and benefit. Diraitation doesnot run until the Mahr becomes due either by the death of one of theparties or by divorce. Ameer Ali on Mohammedan Marriage (oth. Edn.)Vol. 2 pages 432 and 454. This principle has received statutory recogni-tion in the Codes enacted from timo to time regulating the rights of partiesto Muslim marriages in Ceylon.
. ■ *iXaikuli, howcvor, stands on a differont footing. According to a^custom among certain Muslims in Ceylon,
Kaikuli is a sum of money given by the parents of the bride to herintended husband. After the marriage has taken place, heowns it but is nevertheless liable to pay it over to the wife ifshe demands it, .oven during the subsistence of the marriage…. The obligation is to pay the money to his wife
whenever she demands it or, if she dies, to her heirs. ” vide theearlier authorities cited in Sowdoona v. Muces >.
Accordingly, no cause of action for the recovory of Kaikuli can bo saidto bo complete until there has been a clear and unambiguous demandby the person entitled to claim it. The dissolution of the marriagewould no doubt be a very appropriate occasion for demanding Kaikuliif it had not previously been claimed, but, in the absence of such a claim,there is no liability.
In the present case, the wifo made no demand until very shortly beforethe action commenced. I would therofoxe allow tho appeal with costsin both Co tuts and enter a decree against tho defendant in favour of theplaintiff for a sum of Rs. 1,001 with interest theroon from the date of thedecree until payment in full.
Swan, J.—I agree.
•.' Appeal alloiued.
> (106-5) 67 N. L. Ji. 76; 62 C. L. IV. 47.