Khamis, 22 Ogos 2013

sri lanka

Sri Lanka atau nama rasminya Democratic Socialist Republic of Sri Lanka telah merdeka pada tahun 1948. Negara ini memberi tempat yang istimewa kepada Ugama Buddha di bawah Perkara 9 Perlembagaannya. Namun ugama-ugama lain termasuk ugama Islam juga di beri tempat untuk dianuti dan diamalkan secara bebas.

Berikut ialah peruntukan Perkara-Perkara 9. 10 dan 14(1)(e) Perlembagaan the Democratic Socialist Republic of Sri Lanka:

Perkara 9.
The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).

Perkara 10.
Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.

Perkara 14.
(1) Every citizen is entitled to –
(e) the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching;

Undang-Undang Keluarga Islam di Sri Lanka adalah dikanunkan sebagai Muslim Marriage And Divorce Act 1951 dan terpakai kepada semua orang Islam di Sri Lanka sahaja. Akta ini antara lain menggariskan fungsi, kelayakan dan bidangkuasa Mahkamah Kadi dalam menggunapakai perundangan tersebut. Rayuan terhadap keputusan Mahkamah Kadi tersebut hendaklah dibuat kepada Lembaga Kadi dan kemudian rayuan adalah kepada Mahkamah Rayuan dan akhirnya kepada Mahkamah Agung Sri Lanka. Namun bidangkuasa perkara dan relif undang-undang keluarga Sri Lanka adalah terhad.

Untuk rujukan mudah saya perturunkan dibawah ini beberapa peruntukan seksyen-seksyen dari Akta 1951 tersebut setakat yang berkaitan.

2. Application of Act.
This Act shall apply only to the marriages and divorces, and other matters connected therewith, of those inhabitants of Sri Lanka who are Muslims.

12. Quazis.[2,1 of 1965]
(1)The Judicial Service Commission may appoint any male Muslim of  good character andposition and of suitable attainments to be a Quazi.
(2) Save as otherwise provided in section 13 or section 14, more than one person shall not be appointed to be a Quazi for the same area and the area for which each Quazi is appointed shall be so fixed or delimited as to avoid any intersection with or overlapping of any other such area.
(3) Every appointment of a Quazi shall be notified in the Gazette.
(4) In the notification relating to the appointment of each Quazi the area for which he is appointed shall be specified.
(5) Every Quazi shall reside within the area for which he is appointed. [2,1 of 1965]
(6) The Judicial Service Commission may, in its discretion, cancel the appointment of any Quazi by notification in the Gazette. [2,l of 1965]
(7) Every Quazi shall, unless he earlier resigns his office or his appointment is cancelled by the Judicial Service Commission, hold office for such period as may be specified in the notification relating to his appointment.

13. Temporary Quazis. [3,1 of 1965]
(1) Where a Quazi appointed for any area temporarily leaves the area or is temporarily incapacitated for the performance of his duties under this Act by reason of illness or by any other sufficient cause, the Judicial Service Commission may appoint a suitable person to act as a temporary Quazi for that area. [3,1 of 1965]
(2) The Judicial Service Commission may by Order published in the Gazette delegate to the Secretary to the Commission the power to make appointments under subsection (1), subject to such limitations as may be specified in the Order.

14. Special Quazis.[4,1 of 1965]
(1) Whenever there is a special necessity for the appointment of a Quazi otherwise than under section 12 or section 13, it shall be lawful for the Judicial Service Commission to appoint any male Muslim of good character and position and of suitable attainments to be a special Quazi.
(2) A special Quazi may be appointed under this section either for the whole of Sri Lanka or for any area thereof. [4,1 of 1965]
(3)In appointing a special Quazi, the Judicial Service Commission may specify the conditions or restrictions subject to which such Quazi shall perform his duties and functions under this Act and such Quazi shall not act otherwise than in accordance with such conditions or restrictions.
(4) Every appointment of a special Quazi shall be notified in the Gazette. [4,1 of 1965]
(5)The Judicial Service Commission may in its discretion cancel the appointment of a special Quazi by notification in the Gazette.

15. Board or Quazis. [5,1 of 1965]
(1) The Judicial Service Commission may appoint a Board of Quazis, consisting of five male Muslims resident in Sri Lanka, who are of good character and position and of suitable attainments, to hear appeals from the decisions of the Quazis under this Act.
(2)The appointment of the members of the Board of Quazis shall be notified in the Gazette.
(3) (a)Three members of the Board of Quazis shall form a quorum of that board.
(b)No appeal shall be heard by the Board of Quazis unless a quorum is present,
(c) The decision of a majority of the members of the Board of Quazis who arepresent at the hearing of an appeal shall for all purposes be deemed to be the decision of the board. [5,1 of 1965] [ [3,32 of 1969]
(4) The Judicial Service Commission may, in any special circumstances, terminate the appointment of any member of the Board of Quazis by notification in the Gazette. [5,1 of 1965] [ [3,32 of 1969]
(5) Where the appointment of a member of the Board of Quazis is terminated by the Judicial Service Commission or any such member dies or resigns his office or, without the consent of the Judicial Service Commission leaves Sri Lankaf or a period exceeding three months, the Judicial Service Commission may appoint a suitable person to fill the vacancy.
(6) The Registrar-General may appoint a person to be or to act as the secretary  to the Board of Quazis, and the person so appointed shall perform all such duties and functions as may be assigned to the secretary  by the provisions of this Act or the regulations thereunder or by a decision of the Board of Quaz is not in consistent with any such provision.

27. Divorce by husband.
Where a husband desires to divorce his wife the procedure laid down in the Second Schedule shall be followed.

28. Divorce by wife.
(1) Where a wife desires to effect a divorce from her husband, without his consent, on the ground of ill-treatment or on account of any act or omission on his part which amounts to a " fault" under the Muslim law governing the sect to which the parties belong, the procedure laid down in the Third Schedule shall be followed,
(2) Where a wife desires to effect a divorce from her husband on any ground not referred to in subsection (1), being a divorce of any description permitted to a wife by the Muslim law governing the sect to which the parties belong, the procedure laid down in the Third Schedule shall be followed so far as the nature of the divorce claimed in each case renders it possible or necessary to follow that procedure.

29. Registration of divorce. [7,41 of 1975]
(1) The Quazi who is required in accordance with the Second Schedule or Third Schedule to register a divorce shall enter, in Sinhala or in Tamil, a statement of the particulars of the divorce in triplicate, that is to say, the original, the second copy (hereinafter referred to as the " duplicate ") and a third copy, in a divorce register, which he is hereby required to keep for that purpose substantially in form V set out in the First Schedule. The third copy shall bear an endorsement under the hand of the Quazi to the effect that it is issued under section 29 (5).
(2) The entries relating to any divorce in the divorce register shall besigned in the original, and in the duplicate and in the third copy by the Quazi and by the husband and wife if present at the time the entries are made.
(3) The divorces to be registered under subsection (1) in the divorce register shall-
(a) be entered, each on a page, on consecutive pages of that register, commencing with the first page for the first divorce to be registered, and
(b) be numbered consecutively in that register, in the order of time in which the Quazi registers those divorces.
(4) The party applying for a divorce shall pay the prescribed fee to the Quazi as soon as the proceedings for the divorce are commenced. The prescribed fee shall be paid in stamps and such stamps shall be affixed to the duplicate of the entries relating to the divorce and shall be duly cancelled by the Quazi.
(5) Upon the registration of a divorce the third copy referred to in this section shall forthwith, free of charge, be delivered or transmitted by post to the party applying for the divorce by the Quazi.

30. Registration of divorces in cases where proof of divorce is inadequate
Where, in any proceedings before a Quazi under this Act, a Muslim husband states that he has at anytime earlier (whether before or after the commencement of this Act divorced his wife, but is unable to prove that a divorce was in fact effected, the statement of the husband at such proceedings shall be deemed to be the pronouncement of a talak under the Muslim law and shall be recorded accordingly under the rules in the Second Schedule, and the provisions of those rules relating to the procedure to be followed after the pronouncement of a talak is recorded shall mutatis mutandis apply in that case:
Provided that the divorce shall not be registered in any such case until the expiry of a period of three months from the date on which the pronouncement of the talak is recorded as aforesaid, or, if the wife is pregnant at the expiry of that period, until she is delivered of the child.

31. Effect of registration of divorce or remarriage.
Every divorce or remarriage duly registered in the manner required by section 23 of the Muslim Marriage and Divorce Registration Ordinance, 1929,* shall be deemed to be valid and to have been duly effected or contracted, as the case may be, on the original date of such divorce or remarriage, and all children born of such remarriage shall be deemed to be legitimate children of such remarriage.[*Repealed by Act No. 13 of 1951]

32. Power to register marriages and divorces omitted to be registered and to rectify errors in registration.
(1) Where a marriage or divorce contracted or effected on or after the 1st dayof January,1937, has not been registered or has been registered with erroneous particulars, it shall be lawful for either of the parties to the marriage or the divorce, or, where either of them is dead, for the issue or other lawful representative of any such party, to apply to the District Registrar of the district in which such marriage or divorce was contracted or effected to have such marriage or divorce registered or the erroneous particulars rectified, as the case may be. On receipt of such application the District Registrar shall cause the officiating or other priest or registrar or Quazi before whom the marriage or divorce, as the case may be, was contracted or effected and any other persons whom he may consider it expedient to hear, to be served with a notice to show cause why such application should not be granted-If no sufficient cause is shown to the contrary and the District Registrar is satisfied, after hearing such evidence as may be adduced, that such marriage or divorce was in fact contracted or effected and that it has not been registered or has been registered with erroneous particulars, he shall by order under his hand direct the marriage or divorce to be registered or the erroneous particulars to be rectified, as the case may require.
(2) To every application made under subsection(1), stamps of the prescribed value shall be affixed by the applicant.

33. Certain powers of District Registrar under section 32 exercisable by Registrar-General. [4,32 of 1969]
The powers conferred on a District Registrar under section 32 in relation to the rectification of erroneous particulars relating to a marriage or divorce, may be exercised by the Registrar-General.



34. Claims for wife's maintenance.
A wife or any person on behalf of a wife shall not be entitled to claim or to receive maintenance in respect of any period during which the wife lives or has lived with her husband whether on the orders of a Quazi or otherwise.

35. Claims for child's maintenance.
(1) A child or any person on behalf of a child shall not be entitled to claim or to receive maintenance in respect of any period during which the child is or was living with or supported by the father.
(2) In allowing any claim for maintenance by or on behalf of a child a deduction shall be made of the sums which may have been paid by the father for the use or support of the child between the date of the claimand the date of the order allowing the claim.

36. Orders for payment of maintenance from date of claim.
Subject to the provisions of sections 34 and 35, where an order is made allowing a claim for maintenance by or on behalf of a wife or child, the authority making the order may specify therein that the order shall have effect from the date of the claim, and, in every such case, maintenance, in accordance with the order, shall be payable from the date on which such claim was made.

37. Representation of woman in claiming for mahr or kaikuli.
Where it is proved to the satisfaction of a Quazi that a woman claiming or intending to claim mahr or  kaikuliis, through sickness, infirmity or other reasonable cause, unable to appear in person, the Quazi may permit any fit and proper person authorized in that behalf by the claimant and approved by the Quazi, to institute proceedings or to appear on behalf of the claimant.

38. Disposal of moneys received by Quazi in claims where party is represented under section 37.
(1) Where, in any proceedings under this Act for mahr or kaikuli, a woman claimant is represented by some other person under section 37, all moneys received by a Quazi to which that woman is entitled as the claimant shall, notwithstanding anything in section 53, be deposited by the Quazi in the kachcheri in the name of such claimant.
(2) No money deposited by a Quazi in a kachcheri under subsection (1) shall be withdrawn by any person unless the Quazi has in writing authorized such withdrawal and the Quazi shall not authorize the withdrawal of the whole or any part of any money deposited as aforesaid unless he is satisfied that such money will be used for the maintenance or  benefit of the woman on whose behalf the claim was made.

39. Prescription of action for mahr.
The time for the prescription or limitation of a suit or action for the whole or part of a woman's mahr shall not begin to run until the dissolution of the marriage by death or divorce, and such suit or action shall be maintainable if commenced within three years from the date of such dissolution of marriage.



43. Power of Board of Quazis to call for records.
The Board of Quazis may call for and examine the record of any proceedings before a Quazi under this Act in respect of any matter (whether such matter has been tried or inquired into or is pending trial or inquiry) for the purpose of satisfying itself  as to the legality or propriety of any order passed therein or as to the regularity of the proceedings.

44. Revisory powers of Board of Quazis.
(1) The Board of Quazis may, in respect of any proceedings before a Quazi the record of which has been called for, in its discretion exercise any of the powers conferred upon it for the purposes of its appellate jurisdiction.
(2)No order under this section shall be made by the Board of Quazis to the prejudice of any person unless he has had an opportunity of being heard either in person or by his representative.
(3) Every order made by the Board of Quazis under this section shall have the same effect as an order made on appeal from  an order made by a Quazi.

45. Duty of Board of Quazis to furnish Registrar-General with opinions on questions of Muslim law.
The Board of Quazis shall, at the written request of the Registrar-General, furnish him with a written opinion on any question of Muslim law which may arise in connection with the administration of this Act or of any regulation made thereunder.

46. Duty of Board of Quazis to advise on questions of law submitted by a Quazi.
(1) Any Quazi may if he thinks fit reserve for the consideration of the Board of Quazis any question of Muslim law which arises in any proceedings before him, and, where any question of law is so reserved, no further steps shall be taken in such proceedings until the opinion of the board is communicated to him.
(2) Every Quazi reserving a question of Muslim law under subsection (1) shall submit the question in writingin  the form of a special case, and shall state shortly the facts, if any, which are relevant to the consideration of the question.
(3) The Board of Quazis shall, as soon as may be, determine every question of law reserved for its consideration under subsection (1) and communicate its opinion thereon to the Quazi who referred the question and such Quazi shall, in the proceedings in which the question arose, be bound by such opinion.

47. General powers of Quazis.
(1) The powers of the Quazi under this Act shall include the power to inquire into and adjudicate upon-

(a) any claim by a wife for the recovery of mahr
(b) any claim for maintenance by or on behalf of a wife [6,1 of 1965]
(c) any claim for maintenance by or on behalf of a legitimate child [6,1 of 1965]
(cc) notwithstanding anything to the contrary in section 2, any claim for maintenance by or on behalf of an illegitimate child, where the mother of such child and the person from whom maintenance is claimed are Muslims
(d) any claim by a divorced wife for maintenance until the registration of the divorce or during her period of iddat, or, if such woman is pregnant at the time of the registration of the divorce, until she is delivered of the child
(e) any claim for the increase or reduction of the amount of any maintenance ordered under this section or under section 21 of the Muslim Marriage and Divorce Registration Ordinance, 1929* [*Repealed by Act No.13 of 1951]
(f) any claim for kaikuli
(g) any claim by a wife or a divorced wife for her lying-in expenses
(h) any application for mediation by the Quazi between a husband and wife
(i) any application for a declaration of nullity of marriage either by a husband or by a wife
(j) any application for authority to register the marriage of a girl who has not passed the age of twelve years:

Provided that no variation or alteration of any maintenance ordered under this section or under section 21 of the Muslim Marriage and Divorce Registration Ordinance, 1929,* shall be made except upon good and sufficient cause shown to the Quazi and after notice to all the parties concerned. [*Repealed by Act No. 13 of 1951]

(2) A Quazi may inquire into and deal with any complaint by or on behalf of a woman against a wali who  unreasonably withholds his consent to the marriage of such woman, and may if necessary make order authorizing the marriage and dispensing with the necessity for the presence or the consent of a wali.

(3) Where a woman has no wali, a Quazi may, after such inquiry as he may consider necessary, make order authorizing the marriage and dispensing with the necessity for the presence or the consent of a wali

(4) Where an order is made under subsection (2) or subsection (3) authorizing any marriage, a permit authorizing the registration thereof shall be issued by the Quazi, but no such permit shall be issued until the expiry of a period of ten days from the date of the order, or, where an appeal is preferred against such order, unless such order is confirmed by the Board of Quazis, or, in the event of a further appeal, by the Court of Appeal.

(5) In this section "divorced wife" includes a wife against whom the talak has been pronounced, and who has not been taken back by the husband.

(6) Every inquiry under this section shall be held as nearly as possible in accordance with the rules in the Fourth Schedule, but no Muslim assessors shall be empanelled for the purpose of assisting the Quazi at such inquiry.

48. Quazi to have exclusive jurisdiction to inquire into matters specified in section 47.
Subject to any special provision in that behalf contained in this Act, the jurisdiction exercisable by a Quazi under section 47 shall be exclusive and any matter falling within that jurisdiction shall not be tried or inquired into by any other court or tribunal whatsoever.

Persoalannya adalah samada tuntutan bayaran mut’ah [atau disebut muthah di Sri Lanka] boleh di tuntut di Mahkamah Sri Lanka.

Dalam semua peruntukan diatas tiada pun di sebut mengenai tuntutan mut’ah samasekali. Dengan lain perkataan Akta ini tidak mengiktiraf tuntutan mut’ah di Sri Lanka. Namun terdapat beberapa tafsiran yang menerangkan mengenai pengiktirafan konsep mut’ah didalam Akta ini.

Pertama terdapat hujahan bahawa oleh kerana Akta ini tidak menyatakan mengenai pengenaan Mut’ah maka perintah pembayaran mut’ah adalah tidak sah dan batal. Ini adalah di putuskan didalam kes Tuan Muthaliph Tuan Nazar  v Mohamed Haji Ahamed dan M. Fathima Minna. Kesuluruhan teks penghakiman kes ini yang diputuskan oleh Mahkamah Agung pada 13.06.2013 akan dikemukakan nanti.

Hujahan kedua adalah bahawa walaupun Akta ini tidak menyatakan mengenai pengenaan Mut’ah namun ianya tidak melarangnya. Maka dengan itu prinsip ‘apa yang tidak dibenarkan dan apa yang dilarang, adalah tidak dibenarkan’ adalah tidak terpakai. Lihat kes-kes seperti Fawziya v Mohideen BQ/3969 QC Gampaha 179/T, the Board of Quazi’s Law Reports (BQLR) Vol:III (2009) mukasurat 70.

Hujahan Ketiga adalah bahawa konsep Mut’ah dapat diterima pakai dalam skop Akta ini. Alasannya adalah apabila Akta membisu maka Kadi mempunyai lebihan kuasa Hukum Islam sebagaimana yang di peruntukan oleh seksyen 98 (1) & (2) Akta yang dengan jelas menyatakan bahawa hak-hak orang Islam menurut Hukum Islam yang terpakai kepada mazhab pihak-pihak adalah tidak terjejas dengan mana-mana peruntukan Akta. Peruntukan seksyen itu dinyatakan dibawah ini.

98. Saving of Muslim-law of marriage and divorce.
(1) For the avoidance of doubt, it is hereby declared that the repeal of sections 64 to 101 and of the first paragraph of section 102 of the Mohammedan Code of 1806, by the Muslim Marriage and Divorce Registration Ordinance, 1929,* or the repeal of that Ordinance by Act No. 13 of 1951, does not affect the Muslim law of marriage and divorce, and the rights of Muslims thereunder. [*Repealed by Act No. 13 of 1951.]

(2) It is hereby further declared that in all matters relating to any Muslim marriage or divorce, the status and the mutual rights and obligations of the parties shall be determined according to the Muslim law governing the sect to which the parties belong.

Terdapat kes-kes yang memerintahkan pembayaran mut’ah dibenarkan berdasarkan tafsiran / hujahan kedua dan ketiga ditas.

Dalam kes Haleema v Rizly (BQ/3862 QC Colombo West 080/T, the Board of Quazi’s Law Reports (BQLR) Vol:II (2008), pp.45 diputuskan bahawa walaupun peruntukan untuk mut’ah tidak dinyatakan didalam Akta 1951, konsep itu ada dinyatakan didalam al-Quran maka ianya mengatasi. Diputuskan juga bahawa status ekonomi suami hendaklah diambil kira semasa memerintahkan bayaran mut’ah.

Walaupun terdapat hujahan-hujahan diatas suatu surat pekeliling telah dikeluarkan oleh Kementerian Kehakiman (Ministry of Justice) pada tahun 2005 yang membenarkan untuk dikeluarkan perintah bagi mut’ah.

Perlu disebutkan disini bahawa keputusan Lembaga Kadi mengesahkan perintah membayar mut’ah telah diiktiraf oleh beberapa kes seperti kes No.3969 M.S.S. fawziya v J. Mohideen Perintah bertarikh pada 06.08.2005), kes Zulfiqqar v Fathima Muneera yang diputuskan pada 01.12.2007. Board of Quazi, Case No 1769/Mata’a. – lihat The Board of Quazis’ Law Reports Volume IV- 2010. MWRAF.

Perkembangan dari kes Tuan Muthaliph Tuan Nazar  v Mohamed Haji Ahamed dan M. Fathima Minna.

Kes ini tidak mengiktiraf tuntutan mut’ah. Bahkan surat pekeliling tahun 2005 diatas telah diputuskan sebagai tiada kesan perundangan.
Berikut ialah penghakiman keputusan kes tersebut.


Tuan Muthaliph Tuan Nazar PETITIONER
M. Fathima Minna 2ND RESPONDENT

Farook Thahir with N. M. Riyaz for Petitioner
Bashir Ahamed with L. Jeykumar and Safana Begum for the 1st Substituted-Respondent
J. Mansoor for 2nd Respondent

Argued on: 30.10.2012
Decided on: 13.06.2013

The Petitioner to this Writ application seeks to quash the order marked, P2 of 10.5.2008 relating to payment of 'Mathah' or compensation to the 2nd Respondent in a Divorce proceedings under the Muslim Marriage and Divorce Act. By sub paragraph (b) of the prayer to the Petition a Writ of Certiorari is sought to set aside that part of the order relating to payment of Rs. 200,000/- as Mathah or Compensation to the 2nd Respondent. This court had on 22.7.2008 issued an interim order in terms of sub paragraph 'C' of the prayer to the Petition, which had been extended from time to time and on 26.2.2009, order was made to extend the interim stay order until the final determinations of this application.

The facts very briefly as gathered from the affidavit of the Petitioner which are not disputed are that the Petitioner was married to the 2nd Respondent on 5th April 1995 (vide Pl). By the above marriage a female child was born on 12.6.1986. Petitioner filed a case to divorce the 2nd Respondent on or about November 2005 in the Quazi Court of Kalutara (application 812/T) whilst the application was pending the 2nd Respondent filed application No. 7268/CM on December 2005 claiming maintenance for the daughter. Petitioner then filed an application with the Board of Quazi seeking an appointment of a Special Quazi to inquire into the said applications. The Board of Quazi recommended to the Judicial Services Commission to transfer the above two applications before a special Quazi and accordingly the 1st Respondent was appointed to hear and determine the above applications.

The material placed before this court suggests that the application for divorce and maintenance had been taken up before the 1st Respondent. Position of the 1st Respondent in the written submissions filed in this court and his pleadings indicate that the 1st Respondent after inquiry (petitioner refer to it as a protracted inquiry) on 10.5.2008 granted the divorce and ordered maintenance for the child in a sum of Rs. 10,000/- per month. In the same order the 1st Respondent also ordered that the Petitioner pay a sum of Rs. 200,000/- to the 2nd Respondent as 'Mathah' or compensation for divorcing the 2nd Respondent. lt is the award of 'Mathah' that is being seriously contested and argued before this court, in this writ application. i.e 'Mathah' is not recognized or incorporated in the Muslim Marriage and Divorce Act.

In the petition filed by the Petitioner, more particularly in paragraphs 8 - 13 the Petitioner seeks to represent that he has appealed to the Board of Quazis from the order of the 1st Respondent dated 10.5.2008, which is pending. On Petitioner's visit to the office of the 1st Respondent he became aware that both inquiries had been conducted together, though on two separate applications. The payment for 'Mathah' in a sum of Rs. 200,000/- was payable to the 2nd Respondent within 6 months. Petitioner also adds that (in paragraph 13) ,e the 1st Respondent had acted upon a letter sent by the 2nd Respondent of 10.4.2008 in awarding 'Mathah' and said letter was not shown to the Petitioner or he had notice of same, during the course of proceedings before the 1st Respondent. This court notes that the Petitioner has failed to annex the proceedings before the 1st Respondent, to the petition filed in this court. In the absence of such proceedings Petitioners assertions could not be verified. On the other hand failure to do so would amount to non-compliance with rules of the Appellate Courts procedure.

The legal position as adverted to this court by the learned counsel for the Petitioner inter alia is as follows:

(a) 'Mathah' or compensation is not recognized or incorporated in the Muslim Marriage and Divorce Act.
(b) 1st Respondent had no authority or jurisdiction to entertain or hear an application on payment of 'Mathah'
(c)  Award of Rs. 200,000/- made by the 1st Respondent is liable to be quashed by way of Writ of Certiorari, and such award is illegal.

In the petition it is pleaded that the Petitioner does not seek any relief from the 2nd respondent his divorced wife (paragraph 17) but this court observes that the 2nd respondent would be a necessary party and merely because the Petitioner pleads so, it is the 2nd Respondent who would be directly involved and affected by an order of this court. The 1st and 2nd Respondents were both represented by learned counsel in this court and made submissions before this court, and the learned counsel for 2nd Respondent strenuously argued that a writ does not lie in the circumstances of this case. 1st and 2nd Respondents have also filed written submissions.

The order of the 1st Respondent is marked P2. Having examined the said order, (proceedings submitted at a late stage) I would before considering the case of each party, refer to certain points only which tend to demonstrate difficulties encountered by the 1st Respondent in conducting the inquiry and the reason if any to grant 'Mathah".

(a) 1st Respondent attempted reconciliation of parties on 11.8.2007 & 8.12.2007 but was not successful.
(b) Appellant Petitioner had been avoiding answering questions posed by the 1st Respondent as regards child's maintenance i.e income particulars. On one occasion refused to answer questions.
(c) lt is recorded by the 1st Respondent that (pg.3 of pg.2) "he was behaving very badly and thereafter I decided to make an order on the available documents and evidence ... " He was not conducting himself properly and refused to sign the proceedings of 1.3.2008, 10.3.2008 & 22.3.2008. I got the impression that he was doing this with ulterior motives".
(d) Refused to give maintenance for the wife 2nd Respondent since he refused to live with Petitioner. However the order indicates that the Appellant had not permitted the 1st Respondent questions the Petitioner on the justification of not living with the Petitioner by the wife.
(e) Having considered the suffering undergone by the 2nd Respondent and that the Petitioner is a free man and giving his mind to Surah AI-Baqarah which clearly states that man should provide for the wife at the time of divorce mathah in a sum of Rs. 200,000/payable within 6 months.

This court observes that (a) to (d) above clearly indicates some aspects of the conduct of the Petitioner. In the absence of placing the proceedings initially before this court, on one hand there is a clear breach of non-compliance with the rules of court, and court is also placed at a disadvantages of being unable to check and verify the important matters necessary to be checked and verified. Prerogative writs are mainly discretionary remedies of court and court is entitled to reject applications for writs on certain grounds that would disentitle a party for a proper remedy by way of a Writ of Certiorari/Mandamus. Though the focus on this application is on the award of 'Mathah' the writ jurisdiction of court vests the court with powers to reject the application on certain recognized grounds by law.

lt is noted that at the inquiry before the 1st petitioner source of income had been inquired into and at the conclusion of the inquiry the special Quazi allowed the application of the petitioner on 22.03.2008 to pronounce 'Talak' divorce. Consequent to the 'Talak' divorce, 2nd respondent made an application 'Mathah' on 10.04.2008. On 02.05.2008 Quasi made order P2 calling upon the petitioner to pay Rs. 200,000/- as Mathah to the 2nd respondent, Wife of the petitioner and that the petitioner pay Rs. 100,00/- per month as maintenance to the daughter. Petitioner only appealed to the Board of Review against the award of Rs. 10,000/= of maintenance for the daughter. This writ application only concerns the award of 'Mathah' for which the petitioner did not appeal to the Board of Review, re-payments 'Mathah'.

The 1st and 2nd respondents counsel argue that Mathah is payable under Muslim Law ( Shariah) to a wife divorced by her husband pronouncing 'Talak' and it is a mater connected with divorce. Emphasis is on Section 2 of Act No. 13 of 1951, and act applies only to marriages divorces, and other matters connected therewith of the Muslim inhabitants of Sri Lanka. There is also reference to sec 98 ( 2) ... in all matters relating to any Muslim marriage or divorce, the status and the material rights and obligations of parties shall be determined according to Muslim law governing the sect to which parities belong. lt is not restricted or limited to the provisions of the Act. As such payment of Mathah' is governed by the Muslim (Shariah) law governing the sect to which parities belong. lt is the position of the 1st and 2nd respondents that both sect 2 read with 98(2) of the Act would apply to matters connected with divorce such as Mathah' governing the sect to which parties belong.

I find various interpretations given by either party on available statutory provisions. Petitioner refer to section 98(1) to demonstrate that the Quazi has no jurisdiction to award Mathah'. lt is argued that sec 98(1) is a saving clause included in a repealing statute in order to protect the rights and persons who may have acquired rights on previous existing laws. But none of the previous laws had anything to do with Mathah'. In another way 1st and 2nd respondents urge that sec. 98(1) provides for avoidance of doubt. Repeal of Sec. 64 to 101 and first Para of Sec. 102 of previous laws does not affect the Muslim law of marriage and divorce and rights of Muslims.

On the development of the Muslim Law and where Courts have applied the Muslim Law governing the sect on which parties belong are cited by the above respondents. In Mirza Vs Ansar 75 NLR 295.Sec. 98(2) reads with section 28 and Rule 12 of the 3rd schedule, of the Muslim Marriage and Divorce Act makes it mandatory that in all matters relating to any Muslim marriage or divorce, the status and the mutual rights and obligations of the parties shall be determined according to the Muslim law governing the sect to which the parties belong. Accordingly, where the parties belong to the Shafi sect, the wife is not entitled to obtain a Khula divorce from a court unilaterally without the consent and participation of the husband.
A khula divorce is one which is granted without any necessary requisite of fault on the part of the husband and is in this respect basically different from the fasah divorce. One of the circumstances in which a Khula divorce initiated by the wife is granted is where the wife has an incurable aversion to the husband which renders life together : within the limits of God" impossible. The expression 'within the limits of God’ is generally understood to mean co-habitation with due performance of conjugal obligations.

Per Weeramantry, J.- “A review therefore of the original sources, the commentaries of the great Islamic writers, the views of modern commentators and the dicta contained in the case law of this country would appear to point to the participation in the Khula divorce of the husband himself. This Court would be reluctant in the face of this body of authority to extend the law as hitherto understood in this country to enable a wife unilaterally to obtain this form of divorce from the public authorities."

Samarawickrame, J had to say this “I agree with the order made by Weeramantry, J and the reasons set out in his judgment. An extension of the law as hitherto understood in this country to enable a wife unilaterally to obtain a khula divorce is not without some support from Muslim Law authorities and sources but, in my view, it must await a widespread acceptance by the Muslim community of the need for it. At present even the Board of Quazis do not appear to consider favourably such an extension of the law. lt is not for this Court, “to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant." (Judge learned Hand in Spector Motor Service, lnc, v Walsh 1944). Having regard to the rapid pace at which traditional notions are shed in these days, it may not be correct to regard the possibility of an extension of the law as distant.

I find various arguments put forward by the respondents to convey the position that powers of Quazi are not limited to Sec. 47 of the Act and that the Quazi has the power to inquire into granting an application for Maththa. The above views are supported by some decisions pronounced by the Board of Quazis. lt would be interesting to note the following orders delivered by the Board of Quazis.

Vide Fawsiya Vs Mohideen BQ 3969 decided on 6th August 2005 reported in volume 3 of the Board of Quazis Law Reports ( BQLR) at page 70 where it was held that Mathah is permitted by substantive Muslim Law and the Act does not prohibit Mathah, therefore Mathahs is payable to a divorced wife, where Talak divorce is pronounced by the husband. The said order of the Board of Quazis was not challenged. Vide also Fasmila Vs Azam BQ 2692 decided on 26th April 2008, Vide also Haleema Vs Rizly BQ 3862 decided on 24th of April 2004 reported in Volume 2 BQLR at page 45, all the aforesaid orders granting Mathah to a divorced wife were not challenged.

In the case of Refaideen Vs Siddique CA Writ Application No. 1705/2005 minutes of 9th September, 2008 where the petitioner came to the Court of Appeal by way of Writ application form the order of Quazi. Where His Lordships Justice S. Sriskandarajah, held that, when an alternative remedy is available, Writ application cannot be sought and dismissed the application of the Petitioner.

In the case of Mohamed Sadikeen Vs Sirajul Muneera BQ 113/10 decided on the 13th of October, 2012 a divisional bench judgment was delivered by the Board of Quazis. Four Honourable members of the Board of quazis out of 5, delivered judgment in favour of granting Mathah. Board held that the Quazi is not precluded from hearing and determination of an application for Mathah. The majority judgment observed that though the Act makes no mention whatsoever of Mathah, it is interesting to note in this regard that the Act does not make any mention of the Khul form of divorce though it is now settled law that an application for Khul divorce could be made under section 28{2) of the Act.

The journal entry of 02.042013, it is recorded that learned counsel for the 2nd respondent has undertaken to produce the proceedings held before the 1st  respondent which the petitioner has failed or omitted to forward. However this Court was invited by 2nd respondent in his written submissions to consider the position which disentitle the petitioner for relief for non-compliance with rules of Court. Several authorities have been cited some of which proceed on the basis of failure to make a full disclosure to Court, when seeking discretionary remedy from Court. Vide Blanca Diamonds ( Pvt) Ltd. Vs Wilfred Van Els 1997{1) SLR 360; Alphonso Appuhamy Vs Hettiarachchi 77 NLR 131; Land Vs A.G 1995 (2) SLR 88; Kiriwante Vs Navaratne 1990{1) SLRl.

The above respondents also stress on the 'conduct' aspects of the petitioner where on a perusal of the record indicates the indifference of the petitioner deliberately or otherwise to corporate with the 1st respondent quasi. There is an area of discretion left to this Court to refuse and reject writ application on certain acceptable grounds as unexplained delay, availability of alternative remedies, conduct of petitioner, bad motive et. But in legal proceedings of this nature, Court will have to consider the above grounds and give it's mind as the Court is entitled to either reject or entertain the application which has to be decided on a case by case basis. However by looking at both sides of the case, there is a very fundamental basic aspect of the case to be considered very carefully. Has the 1st respondent jurisdiction to award Mathah' in the manner urged and pleaded by the respondents?

Notwithstanding the above, when attention of court is drawn to a very fundamental aspect of the law which lend support to arrive at a conclusion that the order made by an inferior tribunal is without a legal basis and as such a nullity, even grounds such as ‘delay' etc, would recede to the background, since the authority or a Court of law cannot be permitted to pronounce any order on an empty/ vacuum which does not affect the rights of a party. lt is ‘nothing on nothing'

I have fortified my views on the submissions expressed by learned counsel for the Petitioner. Let me refer to same from the point of view of the prevalent statute law which governs all Muslims who profess the Islam faith.

What I have learnt by perusing the submissions of either party is that Mathah' is an Arabic term of a post-divorce settlement, enshrined in the Holy Quran the fundamental source of Islamic Law. Two views are expressed on above post-divorce settlement.
a) lt is a compensating gift given by the husband voluntarily to a divorced wife.
b) lt is a mandatory payment.

Both ( a) and (b) above has not been specifically incorporated by the legislature in the Muslim Marriage and Divorce Act No. 13 of 1951.

lt is useful to consider the History of introduction of the Muslim Law into our statute book. As from the British, regime when Ceylon was a colony under the British, the Muslim inhabitants were governed by the Mohamedan Code of 1806. (In two parts one an inheritance and the other dealing with marriage) In the early 19th century the above Mohamedan Code was repealed and replaced by the Muslim Marriage and Divorce Ordinance No. 27 of 1929, which came into effect on or about 1937. lt is states that the above ordinance of 1929 established the system of Courts of Quazis and the Board of Quazis to deal with appeals and review of orders of Quazis. Thereafter the 1929 Ordinance was repealed and replaced by the Muslim Marriage and Divorce Act No. 13 of 1951 (effective from 01.08.1954). All the above statutes never recognized and incorporated into same the concept of 'Mathah' which is recognized in the Holy Quran. lt is observed that for well over a century the statutes that governed Muslim Marriage and Divorces omitted to incorporate such a concept. According to learned counsel for the petitioner it was not due to an oversight or an omission but deliberate to make it non applicable to Muslim Divorce Laws of our country.

I have no hesitation in accepting the views of the petitioner that the Muslim law of Marriage and Divorce does not contemplate the granting of 'Mathah' to a divorced wife. What is not specifically incorporated cannot be given or granted by implication or interpretation in the manner argued on behalf of the respondents to this application. If the legislature intended to introduce the concept of 'Mathah' it could have done so very easily over the years. But none of the above statutes thought it fit to include same.

Petitioner also diverts the attention of this Court to powers of the Quazi. In this regard refer to sec 47(1)(a) to( j) of the Act. Quazi has power to grant 'lddah' maintenance which is a post-divorce settlement. 'Mathah' is also a post-divorce settlement but sec. 47 makes no reference to award of 'Mathah' (omitted to include same under 47).
The Maxim expressio umius est exclusion alterius" applies and it means things expressly stated need to be given effect and what is not expressly mentioned is excluded. Bindras Interpretation of Statute 9th Ed. Pg. 1223.

As such powers of the Quazi cannot be presumed or imported into sec 47 of the Act. There are no decisions on this issue pronounced by the Superior Courts. But the Board of Quazis in a few cases have awarded Mathah'. Vide Fawbiya Vs Mohideen BQLR Vol. iii (2009) pg. 70. The simple answer given to ...  by the petitioner is that the Board of Quazis cannot arrogate to itself the function of the legislature under the guise of interpretation. Further sec. 2 of the Act also cannot be given an extended meaning ... “Other matters connected therewith" to be read and understood to include only those matters within the parameters of the statute. Unless specific provision is made in the statute Quazi or the Board of Quazis have no jurisdiction to award ‘Mathah'

Circular no. 299 dated 13.12.2005 issued by the Judicial Service Commission as pointed out by the petitioner has been issued without reference to the law under which such circular is to be issued. Vide Ellawela Medhanande Thero Vs District Secretary Ampara 2009 (1) SLR 54 at 59.

This Court is of the view that the order sought to be impugned is a nullity. (P2 as regards award of 'Mathah' only) and the 1st respondent had no power and jurisdiction to make such an order in the absence of clear statutory provisions. When such a question of nullity arises the grounds on which writs are refused and rejected would not preclude obtaining and resorting to the writ jurisdiction of the Court of Appeal under article 140 of the Constitution. Any decision which is ultra vires and void could be set aside by a writ of Certiorari although the petitioner has not exercised his right of appeal provided by the Act. However in the instant case there is no right of appeal as there is no mention of awarding a post-divorce settlement order as 'Mathah' in the statute. lt is 'manifestly illegal'. What is ' unlawful' or 'illegal' or 'bad in law' does not necessarily imply a nullity. However, sometimes an exercise of power is described as 'unlawful' or 'illegal' what is meant to be conveyed is that it is invalid and a nullity. The more serious the errors committed in the process of exercising power, the greater the chance that it will be treated as a nullity. Therefore where the illegality is treated as so serious as rendering the exercise of power invalid, the exercise of power is described as ‘manifestly illegal', as in the case in hand.

In all the above facts, circumstances and having considered all the material placed before this Court both oral and documentary, by learned counsel who appeared before me, whilst thanking all of them for assisting this Court, I am very much inclined and convinced of the position of the Petitioner. The intention of the legislature as regards awarding a post-divorce settlement as 'Mathah' does not favour the respondents.

In the absence of specific provisions in that regard this Court is of the view that the Petitioner is entitled to relief. As such I allow this application in terms of sub para (b) of the prayer to the petition.

Application allowed as above.
Judge of Court of Appeal

Dari penulisan diatas nampaknya perundangan yang substantive mengenai persoalan mut’ah perlu dikanunkan.

Setakat yang boleh peruntukan kanun itu hendaklah menyatakan dalam keadaan perceraian yang bagaimana tuntutan bayaran mut’ah boleh diluluskan.
Dalam kes Razik v Ummu Sareena BQ 4074/QC Kuliyapitiya 8114/Main, the Board of Quazi’s Law Reports (BQLR) Vol:III (2009), ms.138 diputuskan bahawa Kadi tiada bidangkuasa untuk memerintahkan bayaran mut’ah jika perceraian adalah secara fasakh.

Peruntukan mengenai tafsiran mut’ah perlu jelas.

Peruntukan mengenai panduan bagaimana jumlah mut’ah di kira/di taksir untuk di perintahkan pembayarannya. Cara bayarannya juga perlu di gariskan panduannya samada sebagai secara tunai mahupun ansuran.

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