075-NLR-NLR-V-21-PATHUMMA-v.-CASSIM.pdf
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Present : De Sampayo J.
PATHUMMA v. CASSIA
124—C. R. Colombo, 65,913.
Muhammadan law—Claim for maggar and kaikuli—Is separation adefence f—Kaikuli spent for the sustenance of marriage.
The fact that a Muhammadan wife wilfully separated herselffrom her husband and refused to return to him was held not adefence against a claim by the wife against her husband for maggaror kaikuli..,
“ Dowry or kaikuli is held in trust by a husband for the wife,and cannot be withheld on the ground that it has been spent for thesustenance of the marriage. It may, perhaps, be satisfied if thewife should willingly accept • from the husband jewellery or anyother thing in lieu of money. ”
rj^HE facts appear from the judgment.
Abdul Cader, for defendant, appellant.—Kaikuli as such isunknown to Muhammadan law proper, and is not even referred toin the text books. In Ceylon it has been held that dowry, or see-thanam, paid to the husband cannot be reclaimed, even if the termkaikuli is used in that connection. In Saibo v. Saibo 1 this Courthas held that where in a'deed of donation both terms were used todescribe the gift, kaikuli was a synonym for dowry, and the benefitof the donation should go to the husband. If the Muhammadanlaw applicable to gifts is to govern a matter of this kind, kaikuli,being essentially a gift in consideration of marriage, cannot bereclaimed either by the bride’s father or the bride. Again, if thething gifted has been consumed or spent, it – cannot be reclaimed.The husband in this case says that he spent it for the sustenanceof his wife and himself, and further gave his wife furniture andjewellery. It is idle to invent a trust in this connection, becausesuch a trust must be expressly created. Moreover, Wakfs, or trustsrecognized by Muhammadan law, have nothing to do with marriagesettlements. In Ceylon kaikuli has been confused with maggar, orthe Islamic Dower, and this confusion has led to bad decisions in thecases reported in Vanderstraaten’s Reports, pp. 162 and 196. Legal' rights re kaikuli have to be regulated by the customs and usagesprevailing among Muhammadans in Ceylon And they have beencollated in this respect in the case reported in Marshall’s Judgments,p. 221. This case falls under proviso (1), just as the other eases
* (1916) 2 C. W. R. 263.
1910.
1919.
Pathumma0. Oaesim
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in Vanderstraaten' a Reports have been decided as falling underproviso (2). That decision is conclusive on this point, and hasbeen referred to and approved in case reported in Vanderstraaten’sReports, p. 162.
V. Per era, for plaintiff, respondent.—There is no differencebetween kaikuli and maggar. It has been so held by this Court.See Saibo v. Saibo 1 and Vanderstraaten’s Reports, p. 196. It issettled law that maggar can be recovered by the wife at any timeof the marriage. It is submitted that kaihuli is similarly recover-able. Although kaikuli is given to the husband, it is really to beheld by him in trust for the wife, and, according to the decisions ofthis Court, “ forms a settlement exclusively for her own personalbenefit. ” Being trust property, it can be demanded by the wife atany time. The case reported in Marshall’s Judgments contains nobinding decision. In that case the Supreme Court having takenthe evidence of eight Moorish assessors gave certain generaldirections to the District Court, and also directed that the DistrictCourt should take further evidence on law and custom.
September 4, 1919. De Sampayo J.—
The parties to this action are Muhammadans, the plaintiff beingthe wife of the defendant. They were married to each other onJanuary .23, 1916. On the occasion of the marriage the defendantagreed to pay to the plaintiff as maggar the sum of Bs. 150, and theparents of the plaintiff gave to .the defendant a sum of Rs. 150 forthe plaintiff’s dowry or kaikuli. The plaintiff now sues the defend-/ant for these two sums of Rs. 150 each. With regard to the dowrymoney, the defendant pleaded that it was spent for the sustenanceof the marriage, and that he also gave the plaintiff certain jewelleryand furniture worth more than Rs. 300, and the dowry money“ become absorbed " in the jewellery and furniture which were inthe possession of the plaintiff. Dowry or kaikuli is held in trust bya husband for the wife, and cannot be withheld on the ground thatit has been spent for the sustenance of the marriage. It may, .perhaps, be satisfied if the wife should willingly accept from thehusband jewellery or any other thing in lieu of the money, but theCommissioner has rightly found on the evidence that there has, infact been no such satisfaction. , The claim can, therefore, only beresisted on other grounds, if any are available.
The defendant has also raised the defence that the plaintiff haswilfully separated herself from him and refused to return to him,though she promised to do so on October 25, 1918, when a main-tenance case instituted by her against him was settled and withdrawn.
* (1916) 2 C. W. R. 263,
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The Commissioner has not found on the evidence that the plaintiffacted in this manner. Assuming this to be true, however, the ques-tion is whether it affords a defence against a claim for maggar orkaikvU, which is generally payable on demand. Mr. Abdul Cader, forthe defendant,' admits that it is not a defence so far as maggar is con-cerned, but he has cited certain authorities in support of his conten-tion, that if the wife leaves her husband against his will, she is notentitled to claim kaikuli. The authority on which the greatestreliance is placed is Marshall's Judgments 221. There a Madawala-tenna case No. 68, May 9, 1835, is noted, which was sent back bythe Supreme Court for inquiry as to the circumstances in which theseparation between the husband and wife took place, the Courtadding that it had consulted certain Moorish assessors, who ex-pressed their opinions on certain points which the Supreme Courtthought might, perhaps, assist the District Court in the prosecutionof the inquiry. These points were (1) that if a wife leaves herhusband by her own desire and contrary to his wishes, neither shenor any one on her behalf can claim a return of the dowry property;(2) that if the husband turn his wife out of the house, or if hedeserted her, she or any one authorized to act on her behalf mayrecover back such .property; (3) that if they separate by mutualconsent, such separation should be made the subject of an agree-ment, specifying the terms on which the separation was to takeeffect, and the proportion of property to be restored by the husbandto the wife. The Supreme Court directed that the District Courtshould after inquiry record its opinion and that of Moorish assessorson the law or custom and return the proceedings to the SupremeCourt. Marshall notes that up to March, 1836, the proceedings hadnot been returned to the Supreme Court. In any case it will benoticed that there was no decision of the Court itself on the point,and Marshall, after noticing another case on the subject of kaikuU,concludes thus: “ These decisions, if so they may be called, are notsufficiently definite or precise to be very satisfactory as authorities.
I can attach no higher value to the passage cited. The next'reference is to D. C. Colombo, S.IO?.1 That is a judgment of theDistrict Court, but the District Judge, after examination of theauthorities on Muhammadan law, correctly lays down that theaggregate amount of maggar and Ttaikuli, “ although it remains inthe hands of the husband and under his control and management,only does so until it is demanded from him by the wife, and it formsa settlement exclusively for her own personal benefit, independentof her husband and children and all others. It is payable to herheirs at her death, if she has not already received it, and formsa first charge on the husband’s property. It is also payable to heron divorce. But not only so, but it has been decided in No. 54,376(referred to below) it may be demanded by her at any time, even
1918.
Db Sampayo
i*
Pathumma
v. Cassim
1 Van. Rep. 162.
1919.
Dh Sampayo
j.
Pathwnmav. Oassim
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during the subsistence of the marriage. ” He then says that it formsa preferent debt on the husband’s property, “ unless (as decided inMadawalatenna D. G. 98 *) she has without cause deserted him. ”Tfie Madawalatenna case here referred to is the same as thatmentioned in Marshall’s Judgments 221, and therefore the referenceto it as a decision, or as an authority for the qualification mentioned,appears, as shown above, to be a mistake. The point, however, wasirrelevant to the case which the District Judge had to decide, andthe Supreme Court merely affirmed his judgment without givingany reasons of its own. On the other hand, D. C. Colombo 54,376,’which is also a judgment of the same District Judge, shows thatboth maggar and kaikuli are governed by the same principles, andare recoverable under the same circumstances. That being so, andthere being no definite authority in the Muhammadan law to thecontrary, I think, as the learned Commissioner has also held, thesum of Rs. 150 given to the defendant as his wife’s, the plaintiff's,kaikuli can be recovered irrespectively of any question of separationof the plaintiff from the defendant.
I think the judgment in favour of the plaintiff is right. Thisappeal is therefore dismissed, with costs.
Appeal dismissed.
1 Morg. Dig. 43.
* Van. Rep. IDS.