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.
PART V
PROVISIONS RELATING To MAINTENANCE, " MAHR " AND " KAIKULI
"
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.
PART VI
POWERS AND DUTIES OF REGISTRAR-GENERAL, DISTRICT REGISTRARS, BOARD OF
QUAZIS, QUAZIS AND REGISTRARS
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.
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA
531/2008
Tuan Muthaliph Tuan Nazar PETITIONER
Vs.
Vally Mohamed Haji Ahamed SUBSTITUTED-1ST RESPONDNET
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
GOONERATNE J.
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
Kpm/-
Penutup:
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.
