Ansar V. Fathima Mirza

1970 Present: Alles, I., and Tennekoon, J.

M. S. M. ANSAR , Respondent-appellant-petitioner (hereinafter referred
to as the petitioner), and FATHIMA MIRZA (daughter of Al Haj
A. C. M. Sulaiman), Applicant-respondent-respondent
(hereinafter referred to as the respondent)

S. C. 797/69-Application for leave to appeal in B/Q No. 755 Q/C Colombo
South 836/D Colombo North No. 4024 /D under the provisions of the
Muslim Marriage and Divorce Act (Cap. 115)

Muslim Marriage and Divorce Act (Cap. 115)-Sections 14, 28 (1), 62, 07-Application for leave to appeal to the Supreme Court under 8. 62-Reasons for grant of leave

In an application under section 62 of the Muslim Marriage and Divorce Act for leave to appeal to the Supreme Court from a judgment of the Board of Quazis, it would be a denial of justice to refuse leave to appeal in a divorce case in which the appeal contemplated cannot be characterised as frivolous or vexatious.

Application    for leave to appeal under the provisions of the Muslim Marriage and Divorce Act.

                    C. Ranganathan, Q.C., with M. T. M. Sivardeen, for the respondent. appellant-petitioner (hereinafter referred to as the petitioner).

                    H. W. Jayewardene, Q.C., with M. S. M. Nazeem, M. Hussein and Ben Eliatamby, for the applicant-respondent-respondent (hereinafter referred to as the respondent).

Cur. adv. vult.

February 25, 1970. JUDGMENT OF the Court-

This is an application under section 62 of the Muslim Marriage and Divorce Act (hereafter referred to as the Act) for leave to appeal to the Supreme Court from the judgment of the Board of Quazis, affirming the order of the special Quazi, Mohamed Sally granting the respondent a Fasah divorce from her husband, the petitioner.

The parties were married on 14th September 1961 and after the marriage lived together as husband and wife at No. 63, Green Path, Colpetty, with the parents of the respondent. On 16th January 1962 the petitioner left the house and never returned. It was the respondent’s case that the petitioner left the house because he complained that he was not given the income of his wife’s properties while the petitioner maintained that he found life at his wife’s house intolerable owing to interference by the respondent’s parents particularly her mother and that he wanted his wife to leave the house and set up a home of their own. It was further her case that the petitioner’s treatment of her and the kind of life he wanted her to lead amounted to “cruelty “. Owing to circumstances beyond her control, the respondent was able to file an application for a divorce under section 28 (1) of the Act only on 19th December 1965 before the Quazi of Colombo South who at that time was Mr. Farouk Doray. In her application she asked for a divorce on the grounds of (a) ill treatment or cruelty, (b) desertion without sufficient cause, (c) failure to maintain her and (d) failure to perform marital obligations without cause. The case was numbered as 836/D.

            Mr. Farouk Doray was succeeded in the post of Quazi, Colombo South by Mr. Mohideen Cader in June 1966. He fixed the case for inquiry on the 29th of July 1966.

            On or about the 5th July 1966 the Judicial Service Commission appointed Mr. Mohamed Sally (already holding the post of Quazi, Colombo North) to be a Special Quazi, Colombo South. The appointment was notified in the Government Gazette of 15th July 1966 and was to the effect that Mr. Sally was appointed from 29th July 1966 to be Special Quazi, Colombo South “to hear determine and deliver judgment in Colombo South Quazi Court Case No. 836/D “.

      For the removal of certain doubts that Mr. Sally entertained he directed - the respondent to file a fresh application for divorce. An application identical in terms to the original application of 10th December 1965
was thereupon filed.

      Inquiry into the respondent’s application for a divorce was commenced - on 3rd December 1966 before Mr. Sally and Assessors. At the inquiry the respondent confined her grounds for a Fasah divorce to cruelty and desertion. In the course of cross-examination of the respondent she stated that “she did not mind a Khula divorce as well “. The petitioner objected to the Quazi entertaining any application for a Khula divorce but this objection was overruled.

      After hearing the evidence produced by both sides Mr. Sally delivered an order in the presence of the assessors, but without seeking their prior -opinion, that the respondent had established a case for a Khula divorce and granted her a Khula divorce. He then proceeded to obtain the opinion of the assessors in regard to the claim for a Fasah divorce on the grounds of desertion and cruelty. The assessors gave it as their opinion that the respondent had not established a case for a divorce on the ground of cruelty but that she was entitled to one on the ground of -desertion. The Special Quazi, Mr. Sally, disagreed with the assessors and held that a case of cruelty had been made out but that while the respondent had established that the petitioner had on the 16th January 1962 without good cause, left the premises where the couple were living, his absence from home during the period 16.1.62 to 22.2.62 did not constitute desertion in the legal sense. The Special Quazi thus granted to the respondent both a Fasah divorce on the ground of - cruelty and a Khula divorce.

      The petitioner appealed to the Board of Quazis which after several dates of hearing delivered its order on 24th October 1969. The Board affirmed the findings of fact made by the Quasi and held (i) that the respondent was entitled to a Fasah divorce both on the ground of cruelty -and on the ground of desertion and (ii) that the respondent was not entitled to claim a Khula divorce.

     At the hearing of the appeal before the Board the respondent also contended that Mr. Sally’s order should be set aside on the ground that his appointment to hear the case was ultra vires the powers of the - Judicial Service Commission and that Mr. Sally had no jurisdiction to hear the case. The Board rejected this contention.

      Mr. Ranganathan, Q.C. in support of an application for leave to appeal -submitted that there were several questions both of law and fact which were fit matters for consideration by this court in a substantive appeal. The more important among them were the following :-

           (a) that Mr. Mohamed Sally had not been validly appointed as a Special Quazi; and further that even if there was a valid appointment -of Mr. Sally as a Special Quazi the Judicial Service Commission had no

power in the circumstances that existed to appoint him ad hoc to hear a particular case; nor had Mr. Sally jurisdiction to hear the-case that had been filed before his appointment; and further that even if he heard a case filed after his appointment, he had not been appointed with jurisdiction to hear such a case by the Judicial Service Commission. On these grounds it was contended that the divorce-granted by Mr. Sally was void and of no effect and that the Board should have so held;

      (b) that in the absence of any formal application by the respondent -for a Khula divorce Mr. Sally had no jurisdiction to adjudicate upon an oral request for a Khula divorce; and further that the proceedings were vitiated and/or the respondent had been materially prejudiced by the Special Quazi dealing with an application for Fasah and Khula -divorces in one proceeding; and

     (c) that on the facts no case had been made out for a Fasah divorce on the grounds of cruelty or desertion; that the Quazi had failed to consider important admissions made by the respondent in the course -of her evidence which admissions should have created serious doubts as to whether the respondent had satisfactorily established her -allegations of cruelty and desertion; that the Board itself failed to analyse the evidence and accepted the findings of the Special Quazi without adequate consideration and that neither the Special Quazi nor the Board were willing to apply ordinary tests of credibility to the-respondent and her witnesses; and that the Quasi and the Board without material to justify such a conclusion had held that the petitioner -had fabricated certain documents for the purpose of resisting any claim for a divorce by the respondent.

     Mr. Jayewardene, Q.C. submitted that leave to appeal should be-refused as there were no fit questions arising in the case for consideration by the Supreme Court-

                (i) In regard to the points in sub-paragraph (a) of the preceding paragraph learned Queen’s Counsel submitted that the appointment by the Judicial Service Commission, of Mr. Sally to hear this. particular case whether made under section 67 of the Act read with section 14 thereof or under section 14 simpliciter was, in the absence of any allegation of fraud, mala fides or bias, not justiciable at all and more particularly in collateral proceedings. to which neither Mr. Sally nor the appointing body are parties; and further that in so far as the objection was not to the-appointment of Mr. Sally as Special Quazi, Colombo South, but to a lack of jurisdiction or right to hear this particular case, that the respondent had by her conduct acquiesced in Mr. Sally as Special Quasi, Colombo South, hearing the case and thus was without status to attack his order on that ground. Reference

was made to the cases of Parameswaran v. State Prosecutor1 and Toronto Railway Co. v. City of Toronto 2 and other cases referred to in the Board’s order.

                (ii) In regard to the points in sub-para (b) Mr. Jayewardene submitted. that even if they had any merit, they were of a very technical nature, petitioner having suffered no prejudice, and were thus not questions fit for consideration by the Supreme Court.

                (iii) In regard to the points in sub-para (e) Mr. Jayewardene submits that there have been concurrent findings on the facts by the Quazi and the Board of Quazis and in such a situation leave should not, on the analogy of the practice of the Privy Council in the granting of Special Leave to Appeal to Her Majesty in Council, be allowed.

      We find that the principle set out in the Parameswararn and the Toronto Railway Co. cases has not been consistently followed by this court. Sri Skandarajah, J. in Stephen Perera   applied the principle but Sansoni, C.J. (as one of a bench of five judges) in Walker v. Fry ⁴ refused to do so.

     While we accept the submission made by Mr. Jayewardene that this court should not as a matter of course grant leave to appeal, it would not be inappropriate to remind ourselves that even the Privy Council in considering applications for special leave to appeal in cases affecting marriage, legitimacy and status are more liberal than in other cases and do not always insist on any special merit being shown before leave is granted. (See Bentwich 3rd edn. p. 116). Further while it is true that the appeal to the Supreme Court under the Muslim Marriage and Divorce Act provides a second appeal to an aggrieved party, it is also to be noted that it is the first to the regular courts of the country and it would be a denial of justice to refuse leave to appeal to this court in a divorce case in which the appeal contemplated cannot by any stretch of language be characterised as frivolous or vexatious.

           We are satisfied that there is sufficient reason for the grant of leave and leave to appeal is accordingly granted.

           The costs of this application will abide the event in the appeal.

          March 4, 1970.-

   Since delivering our order in this matter on the 25th of February 1970 in which we granted leave to the petitioner to appeal to the Supreme Court from the order of the Board of Quazis, counsel on both sides have drawn our attention to the need, in. the absence of general rules regulating appeals, to prescribe special conditions under which the leave

Foot notes

[1 (1951) A. I. R. (Trav-Cochin) 45.] [ 3 (1966) 68 N. L. R 332.]

[2 (1910) 46 Dominion Law Reports 547]. [ 4 (1965) 68 N. L. R. 73.]

is granted. We agree that it is necessary to prescribe conditions and we accordingly make this supplementary order prescribing the following -conditions as conditions subject to which leave to appeal is granted to The petitioner :-

              (a) The petitioner -will deposit a sum of Rs. 500 with the Registrar of this Court as security for the costs of the applicant-respondent and hypothecate the same with the Registrar. These requirements in respect of security to be complied within 21 days from today;

            (b) Within one week of the requirements of (a) above being complied with, the petitioner to file in this court his petition of appeal;

           (c) At the time the petitioner files his petition of appeal, he shall -also make an application to the Registrar for such number of typewritten -copies as he wishes to obtain on payment of fees in terms of the Schedule to the Civil Appellate Rules 1938;

         (d) At the time he files his petition of appeal the petitioner shall also file with the Registrar a notice of appeal for service on the applicant- respondent.

Sgd. A. C. ALLES,
Puisne Justice.

Sgd. V. Tennekoon.
Puisne Justice.

Application allowed.