279
1971 Present:
Samerawickrame, J., and Weeramantry, J.
M. H. M. ANSAR, Appellant, and FATHIMA MIRZA, Respondent
S. C. 1/70-Quazi Court, 755/836/10
Muslim law-Fasah divorce-Availability to wife on grounds of ill-treatment
and desertion by husband-Meaning of expression " legal cruelty " same in
Muslim law as in Roman-Dutch or English law-Proof of actual violence not
necessary- Appointment of a special Quasi to hear a particular
case-Validity-Muslim Marriage and Divorce Act (Cap. 115), ss. 12 (1) (2),
13,14, 67.
The respondent-appellant and his wife, the applicant-respondent, were Muslims.
Four months after their marriage, the husband left the matrimonial home on
16th January 1962. In the present proceedings, which commenced before a
special Quazi and were continued, in appeal, before the Board of Quazis and
the Supreme Court, it was established (1) that the husband's departure from
the matrimonial house was without reasonable cause, and (2) that the course of
conduct indulged in by the husband was each as made married life altogether
insupportable. Although there was no actual violence, life together was
fraught with danger to the health of the wife and tended to reduce her to a.
state of nervous prostration.
280
The special Quazi before whom the proceedings commenced was appointed by the
Judicial Service Commission under section 14 of the Muslim Marriage and
Divorce Act to hoar this particular case only. No objection was taken by the
parties or by the regular Quazi as to the validity of the special Quazi's
appointment and his jurisdiction to hear the case. The objection was raised by
the husband for the first time at the hearing of the appeal before the Board
of Quazis.
Held, (i) that the appointment of the special Quazi was validly made and that
he had jurisdiction to hear and determine the action. Section 14 of the Muslim
Marriage and Divorce Act empowers the appointment of a special Quazi not only
to deal with a class of cases but even with one particular case.
(ii) that the wife was entitled to a decree for divorce on the grounds of
ill-treatment and desertion without cause. These are grounds which in Muslim
law would entitle a wife to a fasah divorce, i.e., a divorce based upon the
fault of the husband. By the rules of Muslim law no less than of Roman-Dutch
or English law the husband's continued course of conduct amounted to cruelty
in law. Actual violence is not required to constitute " legal cruelty".
appeal
from an order of the Board of Quazis.
C. Ranganathan, Q.C., with M. T. M. Sivardeen and K. Kanagaratnam, for the
respondent-appellant.
H. W. Jayewardene, Q.C., with M. S. M. Nazeem, M. Hussein and Ben Eliyatamby,
for the applicant-respondent.
Cur. adv. vult.
November 10,1971.
Samerawickrame, J.-
Learned counsel for the respondent-appellant submitted that the Special Quazi
who heard this case had not been validly appointed and had no jurisdiction to
hear and determine it. No objection on this ground was taken before the
Special Quazi when he commenced proceedings. The objection was raised for the
first time at the hearing of the appeal before the Board of Quazis.
The Special Quazi was appointed by the Judicial Service Commission under
section 14 of the Muslim Marriage and Divorce Act. Section 12 (1) provides for
the appointment of Quazis and subsection (2) provides :-
" 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. "
281
Section 13 provides for the appointment of a temporary Quazi where the Quazi
appointed for the area is temporarily absent or incapacitated. Section 14
provides for the appointment of a special Quazi and reads:-
" (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 Ceylon or for any area thereof.
(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."
Learned counsel for the respondent-appellant submitted that s. 14 did not
empower the Judicial Service Commission to make an ad hoc appointment in
respect of a particular case. The words of the provisions are wide and enables
an appointment to be made, " whenever there is a special necessity for the
appointment of a Quazi otherwise than under section 12 or 13". Section 67
expressly provides for proceedings in respect of particular proceedings to be
instituted before and heard by a special Quazi to be appointed under s. 14. In
my view, s. 14 empowers the appointment of a special Quazi not only to deal
with a class of cases but even with one particular case.
It was also submitted that where the facts were such as would make s. 67
applicable, it was obligatory that recourse be had to the procedure provided
for therein. Section 67 reads :-
" (1) Where it appears to the District Registrar, on the application of any
party to or of any person interested in any proceedings instituted or to be
instituted under this Act before a Quazi, that a fair and impartial inquiry
cannot be had before such Quazi, the District Registrar may order that
proceedings be instituted before and heard by a special Quazi to be appointed
for the purpose under section 14 and, in the event of any such order being
made, any proceedings taken in respect of the matter to which the application
relates before the first-mentioned Quazi shall be of no effect."
The object of this provision appears to be to give a right to a party "to
place before the District Registrar the grounds why a fair and impartial
inquiry cannot be had before the regular Quazi and to obtain an order which
will take away his jurisdiction and nullify any proceedings already had before
him. An appointment of a special Quazi apart from an order of the District
Registrar under s. 67 would only empower the special Quazi to hear the case
but would not take away the jurisdiction of the
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regular Quazi to do so and he might, if he chose to do so, continue to hear
the case. But where the parties and the regular Quazi are agreed that it is
not possible for the latter to hear the case or are for any reason content
that the special Quazi should do so, no difficulty would arise. A typical
instance would be where the regular Quazi has reason not to hear the case and
will be embarrassed if he has to do so.
In this matter the applicant-respondent made her application to the Quazi of
Colombo South who at the date she made the application was Mr. Farooq Dorai.
The respondent-appellant had an objection to Mr. Farooq Dorai hearing the
application. Mr. Farooq Dorai however resigned and Mr. Mohideen Cader
succeeded him. Mr. Mohideen Cader was related to the parties who were first
cousins. He was also a step brother of Shuaib Cader who was a brother-in-law
of the respondent-appellant and lived in the same house. Shuaib Cader was also
a witness for the respondent-appellant.
The particular ground on which the appointment of the special Quazi was made
by the Judicial Service Commission has not been established. In a letter to
the special Quazi the Secretary of the Judicial Service Commission has stated
that the appointment was made on the application of the parties. There is no
material to show that the respondent-appellant made any request or
representation to the Commission and, if he did make any, to what effect. The
applicant-respondent appears to have taken steps to bring to the notice of the
Commission the fact that the necessity for the appointment of a special Quazi
had arisen. Mr. Mohideen Cader has also, in the journal entry dated 19.6.66
stated that friends and relatives of one party had approached him on various
points. It is likely having regard to this circumstance that Mr. Mohideen
Cader himself had communicated the need to the Commission though there is no
material on the record to show that he did so. The gentleman appointed as
special Quazi was the regular Quazi for Colombo North and was in every respect
competent. The parties appear to have been content to have the case decided by
him and no point in respect of the validity of his appointment was raised
until the stage of the appeal before the Board of Quazis.
I hold that the appointment of the special Quazi was validly made and that he
had jurisdiction to hear and determine the action. In view of my finding it is
unnecessary to consider the further submissions made by learned counsel for
the applicant-respondent based on estoppel or waiver and the doctrine of the
de facto judge.
A further point was made on behalf of the appellant that the decision was
vitiated by irregularity. It was submitted that there had been a breach of
Rule 55 of the Muslim Marriage and Divorce Regulations 1953 which stated that
in no case may a Quazi express or indicate to the assessors his own opinion of
any question of fact. The. special Quazi delivered his order in respect of the
application for a khula divorce in the presence of the assessors and
thereafter proceeded to obtain their
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views in regard to a fasah divorce. In
his judgment in respect of the khula divorce he did refer to certain evidence.
I am of the view that there was no contravention of regulation 55 and that
even if there was a contravention, the irregularity was not substantial and in
no way vitiated the decision.
I agree with the finding arrived at by Weeramantry J., that upon a
consideration of all the circumstances the conduct of the appellant was such
as to make married life insupportable and amounted to cruelty. The
applicant-respondent was therefore entitled to a fasah divorce. I accordingly
agree with the order made by Weeramantry J., confirming the judgment of the
Board awarding the wife a fasah divorce and dismissing the appeal with costs.
weeramantry, J.-
The proceedings from which this appeal is taken commenced with an application
to the Quazi Court by the wife, who is the respondent in the appeal, for a
divorce on the ground of (1) ill-treatment,-(2) desertion without cause, (3)
failure to maintain, and (4) failure to perform marital obligations without
cause.
The trial took place before a Special Quazi and the respondent proceeded only
upon the first two bases namely ill-treatment and desertion. These are grounds
which in Muslim law would entitle a wife to a fasah divorce, that is a divorce
based upon the fault of the husband.
The learned Special Quazi, despite every effort at a reconciliation, as was
his duty under the Muslim law, was unable to bring the parties together. At
more than one stage the respondent; when asked whether she was prepared to be
reconciled to her husband, stated consistently that her position was that a
reconciliation was out of the question, and that she would under no
circumstances resume life with the appellant for whom, in consequence of his
conduct, she had conceived an intense dislike.
On the first day of the proceedings before the Special Quazi the wife stated
however that she was also seeking a khula divorce, that is, a divorce in
respect of which it is not essential to prove fault, but wherein the
allegation is that the parties are unable to live together as husband and wife
" within the limits of God ". The wife's contention was that she was entitled
to such a divorce by decree of the Court and that a decree could be so granted
despite the opposition of the husband; and independently of his consent.
The learned Special Quazi held with the wife on the question of ill-treatment,
and held also that he had left the matrimonial home without good cause on 16th
January 1962. However he held that his failure to return up to 22nd January
1962, when he was informed that his wife
264
desired a divorce, did not constitute
desertion in law. He awarded the wife a fasah divorce on the ground of cruelty
and also indicated that she was entitled in law to a khula divorce as well.
Upon the appeal of the husband to the Board of Quazis the Board not only
upheld the Special Quazi's findings on cruelty but also held that the
appellant was guilty of desertion in law. The Board further, while upholding
the Special Quazi's findings in relation to a fasah divorce, reversed his
findings in regard to the availability of a khula divorce.
It is against this background that two appeals have come before this Court,
the first by the husband against the decision awarding a fasah divorce to the
wife and the second by the wife against the decision that she is not entitled
in law to a khula divorce. The present judgment deals with the first of these
appeals.
There has been an argument before us on the question of the validity of the
appointment of the Special Quazi and the questions of law involved in that
argument are dealt with in the judgment of my brother Samerawickrame. I agree
with his finding that the appointment of the Special Quazi was validly made
and it is upon that basis that the present judgment proceeds. I would content
myself with observing that the parties submitted to the jurisdiction of this
Special Quazi and in the present case it is my view, subject to any rights
they may have by way of appeal, that they are bound by the order of the
learned Special Quazi.
Passing now to the facts, it should be noted at the outset that the parties to
this marriage are first cousins, in that the husband's mother is the sister of
Dr. Sulaiman, the wife's father. The parties were married on 14th September
1961 and lived as husband and wife until the appellant's departure from the
matrimonial home on the morning of 16th January 1962.
The matrimonial home of the parties during the four months they lived together
was the house occupied by the parents of the respondent, Dr. and Mrs.
Sulaiman. It was in evidence that among members of the Muslim community it is
customary after marriage for the young couple to take up residence in the home
of the wife's parents until the birth of the first child and there was
therefore nothing unusual in the arrangement that the new couple were to live
initially with the bride's parents. Moreover that was the accepted and agreed
matrimonial home of the parties in which the appellant, without any expression
of reluctance, took up residence after marriage.
It may be observed also that the house occupied by Dr. and Mrs. Sulaiman in
fact belonged to the bride, as it had been gifted to her by her father some
time prior to the marriage. It would appear that the father, Dr. Sulaiman,
used to pay to his daughter a sum of Rs. 600 per month as rent for these
premises. He had also transferred to her a property in Main Street bringing a
rental of Rs. 800 per month and it was his practice to bring this rent
totalling Rs. 1,400 into the room
285
occupied by the couple and hand it over to
the husband, saying it was his wife's rental for the month- This rental has
been one of the principal causes of displeasure between the parties as it was
the wife's contention that her husband desired to have control of this money.
The witnesses called for the respondent at the hearing before the Special
Quazi were her father Dr. Sulaiman and Mr. A. H. M. Ismail, an advocate of the
Supreme Court who formerly, held judicial office and is a respected member of
the Muslim community. She also gave evidence on her own behalf.
For the appellant, apart from his own evidence there was the evidence of his
father, Mr. C. L. M. M. Saleem.
The wife's position was that on the very night of the wedding her husband told
her that he had not wanted to marry her but had done so only to please his
parents. She complained of unhappiness from the very commencement of her
marriage and of her movements being restricted unreasonably. For example her
husband used to object to her attending parties at the houses of her relatives
and would practically keep her confined to her room. He abused and insulted
her parents and on occasions when there were visitors she was not even allowed
out of her room. The appellant used to go to work daily and return home around
7 p.m. having first visited his mother after work at 5.30 p.m. The respondent
used to be taken for drives only to the house of the appellant's parents and
it was only on one occasion after marriage that they went to Galle Face for a
drive.
One incident in particular stands out for special mention. Dr. Sulaiman had in
accordance with his usual practice bought tickets for the annual Medical dance
in 1961. It is in evidence that Dr. Sulaiman books a table for this dance to
which he takes the doctors who are employed by him at his nursing home, and on
this occasion he had bought two tickets for the young couple and invited them
to attend. The appellant, stating that he objected to any participation in
functions of this sort, refused to attend after the tickets had been bought.
Consequently, the respondent went there along with her father and at this
table the only empty place was that of the appellant. So shortly after the
marriage, when all the doctors employed under the respondent's father would no
doubt have been anxious to meet the young couple, this was certainly an
incident that must have caused much pain of mind to the respondent and to her
parents.
The respondent's position was that all this harassment and ill-treatment were
attributable to the complete domination of the appellant by his father and the
desire of the appellant to gain control over her money. The rental paid by her
father on 10th November 1961 had not been given to her by her husband and when
she asked for it he had told her that she had no right to touch his cupboard.
In consequence the respondent requested her father to pay the money due to her
and this was done in the months of December and January.
286
The final episode in their life together occurred on the night of 15th January
1962, and was a sequel to an argument over money matters arising from the
non-payment to him of the January rental. The respondent states that her
husband had wanted her to wake her father at 2 a.m. and to bring him to his
room to face the ordeal of being questioned about money matters. She refused
to fetch him saying that her husband could speak to him in the morning without
disturbing her all night. On the 16th morning the appellant left the house
without a word to her and never returned. He never communicated with her
personally, he sent her no letters and made no attempts to come home.
The wife has summarised the effect upon her of her husband's unreasonable and
harsh conduct in the terms that he continually " bullied " her over money
matters, abused her and her parents, wanted to control every act of hers, and
eventually " reduced me to a state of nervousness and harassment".
The wife's father, Dr. Sulaiman, confirmed her version of unhappiness from the
commencement of married life and of the unreasonable attitude of the
respondent on money matters. He describes how " she became daily more unhappy
and her gay and jovial life had almost come to an end. I did not want to ask
her any reasons, which were quite apparent looking at her face ".
This is indeed an eloquent description of the manner in which a happy young
girl was transformed in the short space of a few weeks into one weighed down
by harassment and restrictions to a state of sorrow and nervousness.
Dr. Sulaiman referred to the appellant's conduct in relation to the Medical
Dance, his refusal to attend a motor rally at Ratmalana held on one of their
estates although all the other members of the family customarily attend that
rally and the couple had been given a month's notice of it, his refusal to
come down to breakfast when a well-wisher had come all the way from Eravur to
greet the young couple, and other incidents of this nature which', if proved,
constitute clear indications of conduct most unreasonable on the part of a
husband so shortly after marriage.
Dr. Sulaiman also recounted how the appellant did not come down to meals with
the other members of the family but required his wife to carry his meals
upstairs and that he required this to be done even when her ankle was sprained
and she had to limp up the stairs.
All this evidence, if correct, shows that a situation was slowly building up
in which life together was becoming intolerable to the wife.
Finally on 16th January 1962 the respondent left home earlier than usual. To
Dr. Sulaiman's inquiry as to why he was leaving so early that morning he
replied that he had to reach his work place in time to obtain parking space
for his car as the Police was stopping the incoming traffic into the Fort in
consequence of the arrival of a State visitor.
287
The respondent did not return that night and the household stayed up till 11
p.m. awaiting his arrival. Dr. Sulaiman himself waited for him till 1 a.m. but
he did not return. The following morning he and his wife consequently decided
to visit the appellant's home to make inquiries, but his daughter insisted
that before he proceeded he must hear her. Her version was that on the 15th
night her husband had harassed her asking her to give him his money and to
submit accounts in respect of the moneys she spent. He also wanted her to wake
her father at a late hour of the night and ask him to come to his son-in-law's
room. She was very annoyed at this conduct and pleaded with her father not to
set out to fetch her husband as he had left of his own accord. If he in fact
wanted to return she said he would come on his own. In consequence of the
respondent's request Dr. Sulaiman did not go over to the residence of the
appellant's father.
The evidence of Dr. Sulaiman regarding his daughter's complaints to him and in
particular her prompt complaint on the 17th morning regarding the happenings
of the 15th night, lend strong support to her own version of these matters.
The appellant's version briefly was that, the marriage being one between first
cousins, financial questions did not loom large in it and that in fact there
was no question of any monetary matters or dowry ever being discussed. He
stated that during his stay at No. 63, Green Path, he caused household
provisions and a bag of rice to be supplied monthly i am also a sum of Rs. 200
to be paid to the respondent for her expenses. He continued to pay this sum
monthly even after he left.
His position was that during his absence his wife used to go out shopping and
to sundry places both with and without her mother and that he never raised
objections to this. He accompanied his wife almost daily on a drive to Galle
Face and also took her to the cinema and attended functions with her and
visited relations. He denied the allegation that he kept her confined in the
house. He stated further that her relations paid almost daily visits to No.
63, Green Path, so that his wife had ample opportunities of keeping in contact
with them, whereas his own relations lived some distance away.
His position was that his mother-in-law, who occupied the bedroom adjoining
that of the young couple, used to interfere with their married life and he
actually complained that in consequence of inquisitiveness on her part to
observe their conduct, their privacy was also interfered with.
In regard to attending ballroom dances, his position was that such attendance
did not accord with his religious principles and that despite his wishes in
the matter his wife attended the Medical Dance to please her parents. His view
was that ballroom dancing goes on to the early hours of the morning and
interferes with married life.
288
His contention was that from the commencement it was the intention of
dissatisfied relations to wreck the marriage, and among the persons so
ill-disposed were his maternal uncle, Mr. U. L. M. Mohideen Hadjiar, Mr.
Advocate A. H. M. Ismail and others. He denied that there was any dispute
between himself and his wife on any money matters and affirmed that the causes
of quarrels were only his wife's desire to attend dances, and liquor parties.
Seeing that interference with their married life by his mother-in-law was not
conducive to harmony he suggested to his wife that they live separately, and
this request was frequently made, but his wife did not accede to his wish and
he finally left on 16th January 1962 when his wife told him that his
mother-in-law was trying to organise another dance after a relation's birthday
party. He therefore left No. 63, Green Path, and went to his father's house
leaving behind all his belongings. An important part of his case was that in
spite of his parting he continued to write letters to his wife and sent
remittances for her maintenance. He personally posted these letters and kept
carbon copies after the first two letters. He produced all these carbon copies
marked R90 to 137, that is for the period February 1962 to August 1966. These
letters were all returned unopened and were opened in Court.
It was also his position that on several occasions he attempted to speak to
his wife on the telephone and that his mother also telephoned his
father-in-law on several occasions. Dr. Sulaiman promised to meet his mother
but failed to do so.
He categorically denied that he ever wanted to control her money or income or
that he abused her or her parents or prevented her from mixing with members of
either his or her family.
As between the respective versions of the parties both the Special Quazi and
the Board of Quazis appear to have had little difficulty in rejecting the
version of the appellant and in preferring that of the respondent. On all
material points regarding the incidents referred to they have accepted the
evidence of the respondent and of her father Dr. Sulaiman. With this view of
the facts I am in complete agreement.
In regard to the complaint that his wife was fond of attending dances and
liquor parties, it is rather difficult to understand the reference to liquor
when there was not the slightest suggestion that she or any of the members of
her party indulged in liquor; and in fact throughout the cross-examination of
the wife the suggestion was not made to her that she was fond of attending
liquor parties. One finds it difficult to understand whether the alleged
objection of the appellant was to the fact that dancing was indulged in or
that liquor was consumed at these parties. If he had in fact a serious
objection to bis wife attending parties on the ground that at any of those she
or members of the party had consumed liquor, one would expect that that
position would have been clearly stated by aim and put to her at the stage at
which she was giving evidence. It seems to us that the question of liquor has
merely been
289
dragged in to make her attendance at the Medical Dance appear in
an offensive light, when in fact her attendance in the company of her father
and all her father's staff at a function which has come to be looked upon as a
well-known get-together of the Medical profession, seems to be quite
inoffensive and innocuous and one to which no objection could reasonably be
taken.
That would be the view we would be inclined to take ordinarily but we are
strengthened in this view by the findings of the Board of Quazis who being
themselves leading members of the Muslim community have expressed the view
that they see nothing objectionable in attendance at such a dance as customs
change and it becomes necessary to adapt oneself to the changing customs of
the time. In any event there has not been the slightest suggestion savouring
of impropriety of any description whatsoever in the attendance of the wife at
the Medical Dance. Indeed when specifically questioned as to whether his wife
takes liquor when she goes to parties the appellant answered in the negative.
We see no substantiation of any sort of the appellant's contention that
attending such a function is against the teaching of Islam.
The general unreasonable attitude of the appellant can indeed be gauged from
the manner of his cross-examination of the respondent. For example, in regard
to the Medical Dance he asked the question :-" So you go to such parties where
there are various communities present."
There is quite clearly in this question the implication that he disapproved of
his wife even attending such social gatherings where other communities are
present and if this was his general attitude it seems quite manifest that his
attitude towards the movements of his wife was an altogether unreasonable one.
Before concluding this discussion of the questions of fact involved, I would
only wish to deal with the rather curious conduct of the plaintiff in regard
to the correspondence he addressed to his wife after he left her.
I would refer firstly to the letter R88 of 17th January 1962, wherein he
states that he had left the previous day because it was not possible for him
to be in that house with the plaintiff's mother interfering at many times in
their personal affairs. He goes on to state that he begs of her to live
separately from the parents of both parties, if they are to be happily
married. The letter requests the wife to contact the' writer over the
telephone and to make arrangements to come and live with him separately. This
letter begins with the statement that he had tried many times to contact his
wife on the phone but had been told that she was not in.
The receipt of letter R88 is denied! The next we have in the series of letters
is R89 of 20th January 1962 referring to the letter of 17th January, and
stating that it was not possible to go on like this. This letter requested the
recipient to write a short note indicating that she was
290
willing to come, in
which event the writer would call and take her away. It also speaks of sending
her a cheque for her monthly expenses in a few days' time.
R90 is dated 22nd February 1962 and states that " as promised in my previous
letter " he is sending her a sum of Rs. 1,000 being the usual monthly
allowance of Rs. 200 and a further sum of Rs. 800 for festival expenses.
R91 of March 1962 forwards a cheque for Rs. 200 and begins a stereotyped
series of letters which followed month after month stating that the cheque for
Rs. 200 was being enclosed and that the writer was still hoping that " our
parents and elders will look into our matter and bring about a settlement to
enable us to resume our normal relationship ". These letters are all addressed
" My dear Mirza " and end " with kind regards, yours affectionately ".
These are scarcely the letters one would expect from a husband who still
retained, as he claimed he did, an affection for his wife. They savour rather
of routine business correspondence and seem totally devoid of the affection
one would expect even in the strained circumstances that now prevailed. This
abnormal correspondence was continued month after month and each one of these
letters was returned unopened by the wife.
It is to be remarked also that carbon copies have apparently been preserved of
these letters, thus pointing again to the conclusion that they were written
more or less in the manner of business correspondence.
There is moreover a strong suspicion that the appellant has been dishonest in
the matter of this correspondence for there are cogent reasons for a belief
that there has been a tampering with the date of the letter R90 (also marked
R5) in order to build up a case for the appellant.
The letter R90 of 22nd February 1962 (also marked R5) is a letter enclosing a
cheque for Rs. 1,000, and much significance attached to the question whether
this letter was sent by the appellant subsequent to a meeting with Mr. Ismail.
The significance of the date lay in the fact that Mr. Ismail had according to
his evidence and according to the entries in his diary of 22nd and 23rd
February 1962 informed the appellant that the respondent was determined to
seek a divorce. Consequently if R90 was written prior to the meetings with Mr.
Ismail it would have been a letter written without knowledge of the
determination of the respondent to seek a divorce. If on the other hand it had
been written after the meetings with Mr. Ismail it was written with knowledge
of her determination but in pursuance of a pretence that he- was not so aware.
In R90 as if innocent of all knowledge that matters had reached this stage,
the appellant regrets that he had received no replies or telephone calls to
his earlier letters. He proceeds to state that he is sending her
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money for festival expenses and monthly expenses as though the knowledge that
divorce was contemplated by her was furthest from his mind.
In these circumstances the suggestion was made that R90 was not in fact
written on 22nd February (a date which would ante-date the meetings with Mr.
Ismail) but on 24th February and that the appellant had deliberately
ante-dated it to the 22nd of February, so as to make it appear that it was
written before the meetings with Mr. Ismail.
There is much support for this suggestion from more than one circumstance. The
letter appears to have been posted on the 24th and the appellant was
questioned as to why the letter written on 22nd February should have been
posted on the 24th. The explanation he gave, namely that the 22nd may have
been a Saturday, was found on verification to be incorrect, for it was a
Thursday and the 23rd a Friday.
Furthermore, as the learned Quazi observes, a close scrutiny of the
counterfoil of the enclosed cheque (which is a cheque drawn by the father for
Rs. 1,000) shows that it was originally dated the 24th, and that, in the
figure representing the date, the 2nd digit has been altered from 4 to 2. This
again would seem to suggest that the letter and the cheque were made out on
the 24th.
When the appellant's attention was drawn to this discrepancy in dates he went
through the relevant postal article receipt and eventually admitted that the
letter was sent on the 24th.
This brings me to important aspects of this case concerning the diary entries
of Mr. Ismail which reflect the interviews he had in this connection with the
representatives of both parties. The suggestion was rashly made by the
appellant that these diary entries were fabricated.
I shall deal first with the entries relevant to the date of the letter R90.
The diary entries in question are those relating to February 22nd and February
23rd, and if these entries are correct it is easy to see that the appellant's
attempt to make out that B.90 was sent on the 22nd of February and not on the
24th is a dishonest attempt to conceal the fact that he clearly knew by the
time he wrote this letter that his wife had made up her mind to seek a
divorce.
A4, Mr. Ismail's diary entry on February 22nd reads as follows:-
" C. L. M. M. Saleem and Ansar came to our place with a typewritten letter at
about 7.30 p.m. embodying the draft prepared last Sunday the 18th instant. I
told them not to send the letter as matters have changed since I last spoke to
them. I told them I have no time to discuss this in detail; but that I would
meet them and Sithy Aysha at their home tomorrow at 2.30 p.m. However I told
them the gist of the decision arrived at Dr. Sulaiman's place yesterday namely
that Mirza desires a Divorce as the Marriage had failed and that she cannot
have a happy and compatible married life with Ansar in future."
292
A5, the entry for February 23rd makes it even clearer that the-respondent's
state of mind had been communicated by Mr. Ismail to the appellant's
representatives. It reads as follows:-
" I discussed Ansar's marriage matter with his parents Mr. & Mrs. C. L. M.
Saleem and Shuaib Cader at their residence at Pendennis Avenue from 2 p.m.
till 5 p.m. I told them that Mirza desires to have a Divorce from her husband
Ansar as she cannot lead a happy life with him. Ansar's reply was that he
cannot grant a Divorce as there is no valid reason for such a course. He wants
the elders to intervene and settle matters amicably and allow both him and his
wife to live happily after settling the money matters satisfactorily. I told
them that it is not possible to settle this matter as the wife's mind is
finally made up and that she considers the marriage ill-suited and
incompatible-as her experience of four months' married life with Ansar from
September 1961 till 15th January, 1962. I asked them to consider the request
of the wife, take time over it, and decide without causing bitterness and
hardening of feelings."
It became abundantly clear then that the letter R90 was sent out with
knowledge of the respondent's state of mind and so as, by its date, to counter
possible evidence that by that date the respondent had made it clear to Mr.
Ismail that a reconciliation was out of the question.
The anxiety of the appellant to discredit Mr. Ismail's diary entries thus
becomes easy to understand.
On a consideration of these matters we feel that the learned Quazi was
perfectly correct in rejecting the letters R88 and R89 and in holding them to
have been ante-dated. It is significant that in none of the letters that have
been produced except for R88 and R89 is there any indication by the appellant
of an intention to live with her in a separate house.
Upon the learned Quazi's findings it would follow that the appellant has not
only been cruel to the respondent and unreasonable in the matter of his
desertion but also that he has been prepared to go the length of bolstering up
his case by letters which as the learned Quazi observes, do not reflect the
true state of affairs between the parties.
Upon a review of the totality of the evidence in this case there seems then to
be clear proof of a course of conduct so altogether unreasonable that married
life became impossible. There is clear proof also of desertion by the
appellant without cause.
The numerous incidents indicating irresponsibility and unreasonableness amply
substantiate the findings arrived at both by the learned Special Quazi and by
the Board of Quazis. For instance the readiness with which the appellant was
prepared to cast aspersions on Mr. Ismail, bespeaks an irresponsibility of
outlook which is of a piece with the irresponsibility displayed by the
appellant throughout his short married life.
293
It is important to note that the diaries of Mr. Ismail emerged only at a stage
when the appellant was putting it to Mr. Ismail that neither the appellant nor
his representatives had ever sought Mr. Ismail's advice on any occasion
regarding this matter. It was at that stage that Mr. Ismail while re-affirming
that his advice had been sought on more than one occasion said that he could
prove the matter definitely by the diary which he had kept. These diary
entries such as Al, A2 and A3 indicate long discussions at Mr. Ismail's house
on 11th February, 12th February and 18th February and attempts to seek his
assistance in drafting a letter to be sent to the respondent. Some of these
discussions according to the diary have lasted for hours.
Even if the diary entries had not been there to support Mr. Ismail, Mr.
Ismail's evidence is evidence which would unhesitatingly command the
acceptance of a court unless strong reasons existed for its rejection. None
which are worthy of any consideration have been suggested.
When Mr. Ismail stated in his evidence quite categorically that he had been so
consulted the attempt to contradict him flatly was one which by itself was
serious enough. When Mr. Ismail produced in support of his statements diary
entries which completely confirmed his version, it seems exceedingly rash for
the appellant to have suggested that a person of Mr. Ismail's position and
background had gone to the length of fabricating a series of diary entries in
order to pay off an ancient grudge. Such a suggestion is not one which a
person with any sense of responsibility would lightly make. Mr. Ismail has
contradicted this allegation on oath and there is nothing before us of the
strong and compelling nature a court would require before it even entertains
the suggestion that the entries in the diary are other than perfectly genuine
ones.
Again in the cross-examination of Dr. Sulaiman, the appellant, in order to
establish a minor point regarding the illness of a relation, summoned Dr.
Sulaiman to produce all the books of the Grandpass Maternity Home. The
respondent quite rightly objected that the books of the Nursing Home had
nothing to do with the case and that this was merely an attempt to harass her
and prolong the case. Dr. Sulaiman pointed out that the Nursing Home was a
very big organisation employing over fifteen doctors and stated that he
objected to the appellant having a look at his books. The learned Quazi upheld
these objections, and refused the appellant's application, observing that the
fact that a patient had been treated in that hospital had no bearing upon the
facts in issue. I refer to this as another instance indicative of the general
attitude of irresponsibility of the appellant in the conduct of his case. It
seemed quite clear that the application was one made not with a view to
assisting the court but with a view to embarrassing the respondent.
This is of a piece also with the reckless allegation that his mother-in-law
from her adjoining room would constantly peep into their bedroom and disturb
their privacy.
294
Statements of this nature show that the appellant, to gain his ends and show
his wife and her relations in an unfavourable light, is prepared to make
allegations with little regard to reality or plausibility.
This sort of conduct and this attitude of mind were not in any way conducive
to matrimonial harmony. For these and other reasons the learned Special Quazi
has observed that after a careful consideration of the evidence of the
appellant he is compelled to reject it as untrue. These findings of the
learned Special Quazi have not only been accepted by the Board of Quazis, but
the latter have expressly stated that they are of the view that the learned
Quazi came to the correct conclusion when he stated that the appellant's
conduct amounts to cruelty.
We would associate ourselves with the condemnation of the appellant's conduct
by the learned Special Quazi and the Board of Quazis and hold his conduct to
be so altogether harsh and unreasonable, as to constitute cruelty. As pointed
out by the Board, questions of credibility are heavily involved in this case
and no adequate reason has been adduced for any interference with the findings
of the Special Quazi. Co-ordinate findings of fact by the Special Quazi and
the Board of Quazis this Court would require the strongest circumstances to
disturb. None such have been made out by the respondent and in our view no
reason whatever exists for any such interference by us.
We agree also with the findings of both courts below that the appellant's
departure from the matrimonial house on 16th January 1962 was without cause
and we agree with the findings of the Board that in the circumstances of this
case his conduct amounts to desertion in law.
It is not necessary for the purpose of the present judgment to enter upon an
elaborate discussion of what constitutes " cruelty " under the Muslim law. It
seems sufficiently clear that actual violence is not required in order to
constitute " legal cruelty " whether under English law or under Muslim law. In
Buzrul Rahim's case1 the Privy Council observed that " the Muhammadan law on
the question of what is legal cruelty between man and wife would probably not
differ materially from our own."
As Sir Rowland Wilson observes 2: " Since Lord Stowell's time it has been made
clear in England that a course of unkind treatment may be cruelty in the legal
sense though keeping clear of actual violence if it tends to endanger the
wife's health...." and proceeds to observe that so far as Muhammadan law is
concerned actual violence is now not necessary but that " legal cruelty " will
be sufficient.
I have no doubt upon a consideration of all the circumstances in the present
case that the course of conduct indulged in by the appellant was such as made
married life altogether insupportable. Life together was fraught with danger
to the health of the respondent, and tended to
11 Moore Indian Appeals 55I
2
6th ed., p. 155.
295
reduce her to a state of nervous prostration. Such a continued course of
conduct by the rules of Muslim law no less than of Roman-Dutch or English
amounts to cruelty in law.
There is no question but that a fasah divorce would be available to a wife in
the circumstances I have set out.
I would accordingly confirm the judgment of the Board awarding the wife a
fasah divorce and dismiss this appeal with costs.
Appeal dismissed.