Alawi v Alawi (Civil Appeal No. 21 of 1953) [1955] EACA 283 (1 January 1955)

Full Case Text

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Newnham Worley (Acting President), Sir Enoch Jenkins (Acting Vice-President) and BRIGGS, Justice of Appeal.

SALIMA BINTI ALAWI, Appellant (Original Defendant/Appellant) 12

## SEYYID SALEH BIN ALAWI, Respondent (Original Plaintiff/Respondent) Civil Appeal No. 21 of 1953

(Appeal from decision of H. M. High Court of Zanzibar, Pelly Murphy, Ag. C. J.)

Muslim law—Divorce—Extent of jurisdiction of *Kadhi* over persons of different school—Selection of forum by plaintiff—Removal of proceedings into High Court.

♦

The appellant and respondent were both Sunni Moslems of the Shafei school. living in Zanzibar. They were married by a *Kadhi* of their school. By letter addressed to the appellant's father, the respondent purported to divorce her, the relevant words being: "She is divorced—thrice." According to orthodox Shafei tenets this constituted a valid and irrevocable divorce, but under Ibathi tenets, the law is, apparently, to the contrary. Some days later, the respondent purported to retract the divorce. This was possible by Ibathi but not by Shafei tenets. The wife refused to return to cohabitation and the respondent successfully applied to an Ibathi *Kadhi* for restitution of conjugal rights. There is no statutory authority in Zanzibar forbidding a Shafei plaintiff from instituting proceedings before an Ibathi Kadhi, and vice versa.

A Kadhi must administer the law according to the tenets of the school to which he belongs.

On appeal to the High Court, it was held that the plaintiff was entitled to choose his forum and go to the court of the *Kadhi* whose tenets suited his case and that the defendant was bound by that election.

It had been stated by Murison, C. J., in British Resident v. Hafiz Mohamed that "ordinarily in the Mohammedan Law the plaintiff can bring his action before an Ibathi or a Sunni Kadhi as he chooses, and the defendant is bound by the choice", and later, in Nasor v. Awena he stated: "It is a very definite principle of the Mohammedan Law that a plaintiff can in all ordinary cases select his own court, Sunni or Ibathi."

Held (19-11-54).-(1) The dicta of Murison C. J. in British Resident v. Hafiz Mohamed and Nasor $v$ . Awena are no authority for the view that a plantiff can select a court of a school, other than his own school, which most suits his purpose. He may only choose his forum from among those of *Kadhis* of his own law which gives a plaintiff the right to subject a defendant to rules of law by which the is not naturally bound, to which he has never submitted and which would alter his status to his detriment. If, however, there is a deliberate submission to jurisdiction, there is no reason why a Kadhi of another school should not act.

(2) A *Kadhi* must not hear cases involving parties of another school, where, to apply the law of his school would work manifest injustice, and, as in matters affecting status, the personal law of the spouses must be appli it to the Shafei *Kadhi* or granted a sufficient adjournment to allow an application to be made to the High Court for the transfer or removal of the proceedings into the said court.

(3) Where it is clear that justice requires the application of a system of law which a *Kadhi* cannot administer, it is always proper to remove any proceedings pending before him into the High Court.

Per Jenkins, J. A.—A Kadhi of another chool cannot declare that a woman who has been irrevocably divorced according to the tenets of the school of her husband and herself, is not divorced.

Appeal allowed. Judgment and decree of Kadhi and High Court set aside. Suit to stand dismissed.

Cases referred to: Mohamed Ibrahim v. Gulam Ahmed (1864) 1 Bom. H. C. 236; British Resident v. Hafiz bin Mohamed 1 Z. L. R. 526; Nasor v. Awena 1 Z. L. R. 542; Soud v. Jokha 5 Z. L. R. 16; Mbwana v. D. C. Pemba 5 Z. L. R. 20.

Appellant present, unrepresented. Respondent absent, unrepresented. P. S. Talati as amicus curiae.

BRIGGS, J. A.—This is an appeal against an appellate judgment and decree of His Highness the Sultan's Court for Zanzibar dismissing an appeal to the court from a judgment of the Ibathi Kadhi of Zanzibar which ordered restitution of conjugal rights against the present appellant. The facts are simple, but unsual. The appellant and respondent are both Arab subjects of His Highness domiciled in Zanzibar and are Sunni Muslims of the Shafei school. They were married on 6th September, 1946, in Zanzibar by the the Senior Kadhi, who is also a Shafei. There were issue of the marriage. On 24th August, 1950, by letter addressed to the appellant's father the respondent divorced her, the relevant words of divorce being: "... she is divorced—thrice". According to orthodox Shafei tenets this constituted a valid and irrevocable divorce, which not only servered the bond of matrimony, but made it impossible for the parties to remarry without an intermediate marriage and divorce. Under Ibathi tenets, however, the law is apparently to the contrary. Although the Ibathi texts are not unanimous, it appears to be the better opinion that, where the *talaq* is not pronounced separately three times on different occasions, or at least in separate sentences, but is made applicable, as it were, by reference, as in the phrase above, the divorce is considered irregular or "heretical" and operates as only a single talaq, which is of course revocable. So it appears in El-Neil, by Sheikh Mohamed bin Yusuf el Maghrebi, Vol. III, p. 522. The passage may be translated: $-$

"... if he says in this way 'I repudiate' (or 'divorce') 'her thrice', it is considered to be one talaq."

The opposing views are set out in Jaunar Nitham by Abai Abdulla bin Saloon el Sulemy, Vol. I, p. 217, who says: —

"If one says 'you are divorced thrice', she is then divorced thrice according to the majority.

And it is said it is only one $(talag)$ if you consider it.

$\colon$

Because thrice is known to be three occurring three times by action and not by words.

And saving cannot substitute action as beating can never be by words."

I think, however, it is impossible to say that on a true view of Ibathi orthodox tenets this divorce would have been irrevocable. Ten days later the husband purported to pronounce a rejab, or retraction of the "divorce", whereby the marriage, which on the Ibathi view remained in suspense during the period of. Iddat, should resume its full validity. According to Ibathi tenets, the divorce being revocable, this declaration of resumption of conjugal relations was effective,

on communication to the wife, to restore the marriage to full validity for all purposes. On the Shafei view it was a mere nullity, and the parties remained divorced. The wife refused to return to cohabitation.

There seems to be little reason to doubt that the husband was perfectly well aware of this somewhat involved situation. It is difficult on any other supposition to account for what happened next. In spite of the parties being Shafeis and of this being essentially a matter involving their personal law, the husband sued the wife for restitution of conjugal rights in the court of the Ibathi *Kadhi*. There are normally always two Khadhis who hold court in Zanzibar-one Shafei and one Ibathi. The part of the population subject to the jurisdiction of the *Kadhis'* courts is practically confined to these two sects and it is clearly intended that each sect should be able to litigate before a Kadhi of its own tenets. The courts exist under statute, and there is no express statutory bar to prevent a Shafei plaintiff from instituting proceedings in the Ibathi Kadhi's court or vice versa. In this case the wife, on her own evidence, protested against the Ibathi Kadhi exercising jurisdiction. Her vakil corroborates her and says that he did not support her protest, only because he believed that it had no legal foundation and would be overruled as indeed it was. The *Kadhi* did not even see fit to record that the protest had been made, but proceeded to hear the suit. He found as a fact that the *rejab* had been communicated. He held that original letter operated as a single talaq, and added: "this is according to the doctrine of my school" and referred to El-Neil, though the page in incorrectly cited. This seems to suggest that he too was aware of the difference between Shafei and Ibathi law on this point. He ordered restitution of conjugal rights with costs. The wife appealed. The High Court (Pelly Murphy, Ag. C. J.) dealt at length with the question of communication of the rejab. Although differing from some of the Kadhi's reasons, the court agreed with his conclusions that the rejab was sufficient in form, had been made within time and had been communicated. These conclusions are not now, and could not effectively be, questioned. The learned Judge, however. said: —

"It is common ground (or at least it was not argued before me to the contrary) that this divorce was one which was revocable, and the issue in this case is whether there was a legal revocation of the divorce by the respondent."

The argument may not have been well presented, but we think it was intended to take the point that in the special circumstances the divorce was irrevocable. It was raised in the memorandum of appeal as follows:-

"7. Respondent failed to prove that the divorce given by him is either revocable in the *Sheria* or was in fact ever retracted."

In view of the state of the Zanzibar authorities, it is not surprising that the point was not argued at length in the High Court. However, it was clearly raised before us and we thought we ought to deal with it, since it is of considerable public importance. The appellant is a poor person, and for the same reason we asked Mr. P. S. Talati to appear and address us as *amicus curiae*. We are indebted to him for a full and painstaking presentation of the local authorities. The respondent, though duly served, did not appear.

We recorded certain evidence on the hearing of the appeal from the wife, the Shafei *Kadhi* and the husband's *vakil*. We should have wished to examine the Ibathi Kadhi but he died some time ago. The status of the parties as Shafeis was clearly established and there is no reason to suppose that the husband ever accepted Ibathi teachings. The Shafei Kadhi was available in Zanzibar at the relevant time and the proceedings could have been brought before him. The *vakil* said: $\rightarrow$

"I had advised my client that the Ibathi and Shafei law applicable to her case were different. I knew the facts of the case. The plaintiff would have lost before the Shafei Kadhi. He must have gone to the Ibathi one because he realized that. It is quite common to choose a court, knowing that in the other one one would fail, even in matrimonial cases. I think that is unjust, and it is not in accordance with Sheria to go before a Kadhi not of one's own school. Not unlawful, but improper."

This evidence emerged on our trying to ascertain the usual practice in these matters in Zanzibar. On the same point the *Kadhi* said:-

"When people come before me as Kadhi in court I do not ask their sect, except that if the other *Kadhi* is on leave I should ask them. In that case, if Ibathi parties come before me, I should ask them if they consent to my trying the case on Shafei principles. If so, I should try the case. If they do not consent I should adjourn the case and transfer it to the Ibathi Kadhi on his return. In ordinary cases, both Sunnis and Ibathis may come before me. If Ibathis do so, I will act, because by coming to me they indicate consent. If an Ibathi defendant objected to my hearing the case I would transfer it to the Ibathi Kadhi. I would not hear such a case even if the plaintiff were a Shafei. Whatever cases I hear I decide according to Shafei tenets. In the absence of objection and if both *Kadhis* are available I make no inquiry as to the school of the parties. I was in Zanzibar in April, 1952, when the case took place before the Ibathi Kadhi. It would be not uncommon, even in matrimonial cases, for people nowadays to go to a Kadhi of another sect. The plaintiff has a choice, i.e. a choice where he will initiate proceedings. I am bound to hear the case, but my own view is that I would prefer not to. I should be obliged to disregard any objection. I am obliged by the Sheria to do so. That applies whether defendant is a man or a woman."

I set this evidence out, not as helping to resolve the difficulties, but as indicating that they are considerable, and that those best qualified to speak on them are neither clear nor consistent.

Local authorities do not greatly assist. In *British Resident v. Hafiz Mohamed*, 1 Z. L. R. 526, which was decided in 1917, Murison, C. J., held, first, that whenever Muslim litigants go before a *Kadhi* he must administer the law according to the tenets of his own school, regardless of the sect or school to which the litigants adhere. This appears to be beyond dispute. The authorities appear generally to agree, and in any event it is so ordained in Zanzibar by a Proclamation issued in 1845 by His Highness Sultan Seyyid Said bin Sultan, which for this purpose has the force of statute. I hope, however, to show that the rule is subject to certain apparent modifications in special cases. Secondly, the learned Chief Justice held that both under pure Muslim law and under the law of Zanzibar, where a choice of forum exists as between two or more *Kadhis* administering the laws of different Muslim sects, the plaintiff may "ordinarily" select his forum, and presumably may deliberately go to the court of the Kadhi whose tenets will suit his own case. For this also there seems to be strong authority, to which I shall revert. Thirdly, he apparently held that, where a plaintiff has so selected his forum, the defendant is bound by that election and must be content to have the dispute settled in accordance with the law which the *Kadhi* accepts, notwithstanding that the parties were naturally subject to, or intended to contract under, a system of law which would give an exactly opposite result. The correctness of this proposition must be further examined.

The decision in British Resident v. Hafiz Mohamed has never been before a Court of Appeal, but has been repeatedly followed in Zanzibar, first by Murison, C. J., himself in *Nasor v. Awena*. (1917) 1 Z. L. R. 542, and subsequently by other Judges in Soud v. Jokha, (1936) 5 Z. L. R. 16, Mbwana v. D. C., Pemba, (1938) 5 Z. L. R. 20, and probably many unreported cases of which I am not aware. It should be noted that the reference in a footnote to Nasor v. Awena at p. 543 is incorrect. It should read: "Hashiat Tuhfat el Muhtaj, Vol. X, p. 119." I am indebted to Jenkins, J. A., for his explanation of this point. Hafiz's case has also been commented on in two local text books, namely, The Dual Jurisdiction in Zanzibar, by Vaughan (1935) and The Conflict of Laws in Zanzibar, by H. E. Kingdon (1940). The third proposition from *Hafiz Mohamed's case* appears to have been separately discussed in only one of the subsequent reported cases, namely Soud v. Jokha. Before dealing with that case I quote from Vaughan, at pp. $41-42$ :—

"The position at the present day is that the only district, of which there are five, in which there are two *Kadhis* exercising concurrent jurisdiction is the Southern District of Zanzibar—the rule that the plaintiff can choose his court, is therefore of extremely limited application. In the four other districts litigants have no choice but to bring their cases before the *Kathi* exercising jurisdiction in their district—and may thus be bound to have their cases decided by the rules of a school to which they do not belong. Apart from this, many cases arise in which equity would demand that the law to be applied should be the 'law of the defendant' and not that either of the tribunal of the plaintiff. The root of the difficulty is, of course, that the fundamental Mohammedan law has never recognized any rules of the choice of law and litigants must accept the law of the tribunal to which they go."

After the word "belong" the learned author appends a footnote—

"In such circumstances the High Court would no doubt entertain an application for a transfer of the suit to another court."

This might have solved all difficulties in practice, but in Soud v. Jokha, Law, C. J.. $said :=$

"The parties to this case are both Ibadhis. The case was tried by a Shafei Kadhi. Before the trial, the appellant applied to this court for the case to be heard by an Ibadhi Kadhi but the application was not allowed. Though this point has not been raised as a ground of appeal it was referred to during the hearing of the appeal, and it is therefore considered desirable that some reference should be made to it in this judgment. It is, of course, no new point, and the subject has been discussed in Vaughan's Dual Jurisdiction in Zanzibar (p. 37 et sequitur) where various decided cases are reviewed. It is unnecessary to refer to all those decisions for present purposes. It would suffice to quote the case of Nasor v. Awena which was originally tried by a Shafei *Kadhi* and the parties to which were Ibadhis. On ultimate appeal to His Highness's Supreme Court, Murison, C. J., held that the learned Kadhi had acted correctly in applying the law of his own school and not that of the parties. The learned Judge added that 'it is a very definite principle of the Mohammedan law that a plaintiff can in all ordinary cases choose his own court Sunni or Ibadhi', thus reaffirming what he had observed in the previous case of the British Resident v. Hafiz, It is not understood what the learned Judge meant by the expression 'ordinary case'. Whether it was intended to have any 'restricted' (I think this is a misprint for 'restrictive') 'meaning, which I doubt, does not really matter as the present case does not disclose, in my opinion, any extraordinary features.

In the work referred to above, the Dual Jurisdiction in Zanzibar, the author suggests that the High Court would no doubt entertain an application. for the transfer of a suit to another court where the parties thereto belong to a different school of law to that of the trial Kadhi. I would hesitate before subscribing to such a view, on that ground alone, without hearing the strongest possible arguments in support thereof, because such action might always be employed as a method of defeating what appears to me a to be a rigid and unquestionable principle of Islamic law. To exercise such a power would appear to be arbitrary and, possibly, an improper interference with the peculiar and special jurisdiction conferred on *Kadhis* both under the general Islamic law and the Courts Decree (Cap. 3). Consequently, except in so far as such principle is modified by Decree, I consider I am bound by it."

That restored what I may call the *status quo* of the third proposition, and it has not, so far as I am aware, been doubted since, either judicially or in Kingdon.

In that state of the authorities I find it necessary to go back to first principles in *Muhammadan Jurisprudence*, by Abdur Rahim (1911). At p. 180 it is stated: —

"When a question depends upon juristic deduction a Qádí belonging to one school of Sunni law such as the Hanafi may decide it according to the Sháfií law, if he prefers that view, or he may make over the case, to a Sháfi'í Qádí for decision, if there is one available. In support of this a number of cases are mentioned. For instance, a Hanafi Oádí following the views of other Sunní schools, in preference to those of his own school to the contrary, may declare that divorce by a drunken person is not valid, uphold a marriage contracted without two witnesses being present as valid, set aside the marriage of a minor contracted by his father in the presence of profligate witnesses, uphold, the sale of a mudabbar and perhaps of an *ummi walad* and so on. That this is the correct view of the law on the subject cannot be doubted not only upon principle but having in regard the array of authorities cited in its support, such as As-Siyáru'-l-Kabir, Jámi'u'l Futáwá, Khazánutu'l-Muftiin, Majma'u'n-Nawázil, Al-Zakhira, Futáwá Rashídu'd-dín, Shaikhu'l-Islám 'Abdu'l-Wahhábu'sh-Shaibáni, Shai- ku'l-Islám 'Atá ibn Hamza, and others."

Then follows a discussion on the development of the doctrine of Taqlid or "unreasoning obedience to authority", which the learned author regards, in its extreme rigid form, as abhorrent to the true spirit of the Sheria and an obstruction to its proper organic growth. He points out, however, that there are various factors by reason of which the doctrine "should not stand in the way of substantial justice or of the progress of laws in accordance with the requirements of an advanced society" (pp. 191-2), and refers to the quite modern rules of limitation and forms of punishment. The whole passage seems to show that, however tightly a *Kadhi's* hands may now be tied as regards his own de there is still nothing to prevent him from handing over a case to another *Kadhi* whenever justice and good conscience make that course desirable. That a plaintiff may initially choose his forum is not denied; but I find nothing to support the view of Law, C. J., that the Islamic law deliberately gives to a plaintiff the right to subject a defendant to rules of law by which he is not naturally bound, to which he never submitted, and which would alter his status to his detriment. Such a suggestion offends one's juristic conscience and should not be accepted unless so strongly supported by authority as to be irresistible.

I propose now to consider the question of choice of forum and its consequences from a quite different point of view. I hope that in the following remarks I may be forgiven for stating matters of history in a highly selective manner. $\frac{1}{2}$ I do so without losing sight of the early chapters of Abdur Rahim and I am supported by *The Origins of Muhammadan Jurisprudence*, by Joseph Schacht, who states at p. $7:$ —

"The real distinguishing feature between the ancient schools of law is neither the personal allegiance to a master nor, as we shall see later, any essential difference of doctrine, but simply their geographical distribution. Shafii is explicit about it: 'Every capital of the Muslims is a seat of learning: whose people follow the opinion of one of their countrymen in most of his teachings.' Shafii goes on to mention the local authorities of the people of Mecca, Basra, Kufa, Syria; elsewhere, he refers to the Iraqians and Medinese, the Basrians and Kufians, the scholars of each place where knowledge of traditions is to be found, the people of the different countries, and he gives detailed lists of these local authorities."

The early development of the different schools of Muslim law proceeded mainly on a basis of locality. Ideas which became prevalent and were gradually considered to have the force of law in one country might be unheard of in a second, or actively disapproved and rejected in a third. This situation sprang naturally from difficulties of communication. If, in those early times, there were disputes among scholars in any area, they proceeded on the basis that the corpus of Islamic law was one and indivisible, and that disagreements about it were caused only by human frailty or ignorance. The conception of different schools of Islamic law, differing on matters of the most profound importance, but all of equal validity for their followers and in the eyes of God, was a later, though probably an inevitable, development. In the earlier stage almost every Muslim community must have been practically homogeneous, and the acceptance of a commorant holding tenets of law different from the local majority must have been very unusual. If, on joining a Muslim community in those days one was inclined to hold views different from theirs, one was "unorthodox" or "heretical" and it would probably have been wise to abandon those views and adopt the majority's. In the later stage it would not be thought remarkable that a visiting stranger should follow a different school, but if he decided to join the community on a permanent basis, one would expect him to undergo instruction and conversion to the local school. In a third phase one can imagine that, particularly in a centre of travel, small groups of different schools would gradually settle on a permanent basis and would feel no social pressure towards conversion to the usual local school. This third phase may now, I think, be said to be the one current in most predominantly Muslim countries. There is, however, a fourth phase, where for reasons into which one need not enter, the Muslim community in a single country cannot be said to predominantly of any single school, in the sense that the minorities are of substantial numerical and general importance. Zanzibar is clearly, and has been for a long period, in the fourth phase.

I turn to consider the position of a Kadhi in the light of the social developments which I have just described. In the earliest period each Kadhi administered the law of Islam as understood in his territory and to the best of his knowledge. He may often have been no more conscious of adherence to a particular school than Monsieur Jourdain was of talking prose. The suggestion that he should modify his view of the law, on being told by a visiting foreigner that the law of Islam was understood in that sense in his own country, would clearly be fantastic, and to adopt it would appear impious. In the second stage there would be some appreciation that strangers to the country might follow different tenets in their own territory, but the conception of the Sheria as a way of communal life would still cause the Kadhi to disregard the foreigner's strange notions. In the third phase the principle that a Kadhi must administer the law of his own school, and no other, was already so well established that it would admit of no exception based on mere ideas of abstract justice. It is important at this stage to observe that, although minorities are tolerated, there is a predominant sect in each geographical area and the *Kadhi*, or all the *Kadhis*, if more than one, will be of that persuasion. I conceive that any apparent exception to that rule would either be quite anomalous or would indicate that the community was bordering on the fourth phase. In other words, in the third phase each community has still its own corpus of Muslim law, which is for all purposes the law of that community. No other system is administered at all, and the only courts open to litigants administer that system. If there is a choice of *Kadhis* at all, it is merely a choice between different individuals administering the same law. There can be no more objection in such a case to a rule that the plaintiff can choose his court than there is to the rule in England that in habeas corpus cases the applicant may choose his Judge and go on from one Judge to another. And a defendant of a minority sect has no particular grievance if he is dealt with under the law applicable to the majority. He has chosen to live in that community and has submitted generally to the jurisdiction.

What then of the fourth phase? I conceive that there is a distinction of general principle. There will now ordinarily be Kadhis of each of the important constituent sects. There will no longer be a single system of law, but two systems of law administered side by side. That is now the situation of Zanzibar. I would say in passing that in view of His Highness's adherence to Ibathi tenets it is quite impossible for anyone in Zanzibar to claim a superior orthodoxy or authority for any Sunni views. His Highness is pleased to allow them parity of status and that parity must apply for all purposes in this Court. A Kadhi of either school is now available to every litigant, and if I may judge from the evidence before us, it is considered wrong that a defendant naturally subject to the one system of law should be tried under the other, unless with his consent. Where there is a deliberate submission to jurisdiction there is no reason why a *Kadhi* of the other persuasion should not act. The court was clearly right in *Soud* $v$ . Jokha in refusing to transfer on the application of a party who had deliberately chosen his forum: but to extend that rule to an unwilling defendant may in some cases be wholly unreasonable, and in that respect I think the authorities cited in support of the third proposition must be regarded as overruled, unless the class of "extraordinary" cases contemplated by Murison, C. J., is wide chough to include every case where it would be improper to apply the law of the *Kadhi's* own school.

Marriage in Islamic law is a contract, and within wide limits Muslims may attach to a marriage such incidents as they choose, particularly as to rights of divorce and restrictions thereon. Abdur Rahim p. 333 et seq. In every marriage the husband's powers of divorce are strictly defined and their legal effect and operation is well known. The use of a particular formula of words under Shafei law breaks the *vinculum matrimonii*. If two Shafeis marry under Shafei law and that formula is used the wife is there and then *soluta*. The presumption in favour of liberation, always raised by Islamic law, supports the view that in natural justice no court should have power to declare married a woman who in terms of her own personal law is unmarried.

Islamic law does not usually lay much stress on the effects of marriage and divorce as matters of status; but those effects cannot be ignored. A woman cannot be both married and single. If two systems of law concurrently administered in one country give different answers to the question, the correct answer must be that given by the proper personal law of the spouses. To state the same proposition in another way, natural justice requires that their own personal law, and not the opposing system, be applied to determine the woman's status and the rights and obligations arising therefrom. I am indebted again to Jenkins, J. A., for pointing out that the *Minhaj-et-Talibin* (Howard's translation, 1914, pp. 387-8)

expressly confirms this view, and bases it on grounds of personal status. This doctrine is stated to be *asalth*, i.e. of high, though not undisputed, authority.

1 would answer certain anticipated criticism. It will first be said that if a case within his jurisdiction comes before a Kadhi, it is his duty under Islamic law to hear and determine it-not to transfer or adjourn it. I think that rule is subject to exceptions, even in pure Islamic law. It is clear that a *Kadhi* must not hear cases in which he has a personal interest. I think it is equally clear that he should not hear cases where to apply the law of his own school would work manifest injustice. In any event Kadhis in Zanzibar to-day do not work under pure Islamic law, but a combination of that law and statute law. The policy of the law is to make available both Shafei and Ibathi Kadhis in all cases. It is implicit in the system of courts and modes of procedure now obtaining either that cases should be transferred, or that adjournment should be granted to enable the High Court to transfer, where justice so requires. Any old authorities to the contrary are no longer to be relied on. The next objection would be that I am curtailing a husband's legal rights. I would reply that one of the most beneficent provisions of Islamic law was to give women some certainty as regards their status in place of the harsh and unjust provision of pre-Islamic Arabian custom under which a woman might long remain uncertain whether she was married or unmarried, See Abdur Rahim p. 10. The law of Islam was designed to stop that abuse, and I for one will do nothing to re-establish it.

I would add a few words with regard to what I may call the boundaries of the rule that a *Kadhi* must administer the law of his own school. There is no rule that he must ignore the existence of other schools. And there is no rule requiring him not to recognize that many questions of legal capacity and status depend absolutely on the school of the individual and cannot properly be answered by reference to any other system of law. For example, capacity to marry without the concurrence of a *wali* exists in a Hanafi virgin over the age of puberty, but does not so exist in a Shafei. A Kadhi of any school must recognize this fact. Muhammad Ibrahim v. Gulam Ahmad (1864) 1 Bom. H. C. 236. So in my view, if an act of a husband has effected in accordance with his own personal law and his wife's an irrevocable divorce, any *Kadhi* should recognize that they have as a matter of fact ceased to be married. I refer again to the passage from the Minhaj, where this is expressly set out. I appreciate the danger that a *Kadhi's* grasp of a system of law not his own may be inadequate, and he may take an incorrect view of past occurrences; but I think in questions of status and capacity he should attempt to solve questions by the right method and hope to achieve the right answer, rather than almost inevitably give the wrong answer in consequence of applying the wrong method.

There is one further point. His Highness the Sultan's Court has all the jurisdiction and powers of all the courts subordinate to it, including *Kadhi's* courts. Where it is clear that justice requires the application of a system of law which a *Kadhi* cannot administer, it would always be proper to remove any proceedings pending before him into the High Court.

To summarize: I think the *Kadhi* ought in the circumstances of this case to have declined to hear the suit. He should have allowed the appellant's objection and either transferred the case to the Shafei Kadhi or granted a sufficient adjournment to allow application to be made to the High Court for such a transfer or for removal of the proceedings into the High Court. I think the High Court erred in not setting aside the Kadhi's judgment on these grounds. But I should add that I think both courts below were forced into erroneous decisions by a series of authorities which was in my opinion itself founded on an erroneous view of the law.

I would allow this appeal, set aside the judgment and decree of the *Kadhi* and the appellate decree of the High Court and order that the suit do stand dismissed. The appellant must have her costs against the respondent in all three courts, but the costs in this Court will only be those allowable to a poor person.

SIR NEWNHAM WORLEY (Acting President).—I have had the advantage of reading the judgment prepared by the learned Justice of Appeal and find myself in full agreement with his conclusions.

The point in issue in this case is not, so far as I am aware, precisely covered by any previous authority. So far as concerns the Zanzibar authorities they are based on the dictum of Murison, C. J., in British Resident v. Hafiz that "a plaintiff can in all ordinary cases choose his own court Sunni or Ibathi." Nobody has ever attempted to ascertain what the learned Chief Justice intended by the use of the word "ordinary." Abdur Rahim in Principles of Muhammedan Jurisprudence, 1911 at p. 365 has this comment: $-$

"The person who wants his claim to be heard must first of all select the proper court, that is, the one which has jurisdiction to hear the suit. But this is a more or less simple affair under the Mohammedan system. Except in so far as the jurisdiction of a particular Quadi may have been limited by his order of appointment as regards the class of cases he is to try, a plaintiff is entitled to institute his action in the court within whose local jurisdiction he and his witnesses reside. And it would make no difference in this respect if the subject matter of litigation, for example, land, be situated elsewhere or the person against whom the claim is made resides within the jurisdiction of another Quadi."

In this passage the learned author evidently treats the privilege of the plaintiff to choose his own forum as merely one which enables him to ignore the territorial limits of jurisdiction. It is certainly no authority for the view that the plaintiff can select a court of the school which most suits his purpose.

The only reference which I have been able to find in the available authorities to a person changing his sect to avoid the consequences of his act is in Syed Ameer Ali's Mahommedan Law, 1894, Vol. II, at p. 419. The learned author, after discussing the divergent views of the different schools as to the validity of a *talak* extorted under compulsion says: $\rightarrow$

"Supposing a Hanafi, under the influence of threats and strong coercion, pronounces a *talak* against his wife, and on recovering his freedom of action, disavows the validity of his act, and places himself under the Shafei rules to escape from the results of the talak, there can be little doubt that he would be justified in doing so, and the repudiation he had pronounced would be invalidated."

This passage suggests that a plaintiff would be entitled to choose a court of another school in order to escape from duress or bad faith on the part of the defendant. But that is exactly the contrary to the conduct of the husband in the instant case. I observe, moreover, that at p. 139 of Wilson's Anglo-Mohammedan Law, 5th Ed., edited by Yusuf Ali, this opinion of Ameer Ali's is referred to as a "bold suggestion".

I am indebted to Jenkins, Justice of Appeal, for drawing my attention to a passage in Howard's English translation of the *Minhaj Et Talibin* (1914) at pp. 337–338. In discussing what constitutes a lawful repudiation the learned. author says:-

time; but the law does not permit the husband, after saying, 'You are repudiated thrice', or 'Thrice in accordance with the Sonna', to spread out these three repudiations over three of his wife's periods of purity; unless he belongs to a school which, like that of Malik, forbids pronouncing more than one repudiation at a time. In this matter the court should respect the precriptions of the school to which the husband belongs, even where his ideas are not in comformity with the precepts of our school, for it is a matter of personal status."

The *Minhaj Et Talibin* is, according to my experience, regarded as a work of high authority among the Shafeis. I do not know how it is regarded by the Ibathis. Other things being equal, it would seem logical to regard it as more authoritative than the *Tuhfat* which appears to be merely a simplified version of the Minhaj. Apart from this question of authority, however, I should prefer to follow the passage in the Minhaj Et Talibin, both as being more nearly relevant to the matter before us than the generalization in the *Tuhfat* upon which Murison, C. J., relied; and also as being more consonant with justice and equity.

An order will be made in the terms proposed by Briggs, Justice of Appeal.

SIR ENOCH JENKINS (Acting Vice-President).—I have had the advantage of reading the judgment of my learned brother Briggs, and agree that this appeal should be allowed.

In British Resident v. Hafiz Mahomed 1 Z. L. R. 526 the wording of the passage in the judgment of Murison, C. J., which is of such importance in the instant case is as follows (at p. $535$ ):—

"Ordinarily in the Mohammedan law the plaintiff can bring his action before an Ibathi or a Sunni Kathi as he chooses, and the defendant is bound by the choice."

No authority is quoted for this statement but a few months later, in giving judgment in Nasor v. Awena 1 Z. L. R. 542, and making a similar statement, Murison, C. J., refers to Hafiz's case and the Tuhfat el Muhtaj, Vol. 10, p. 119, The similar statement reads (at p. $543$ ):—

"It is a very definite principle of the Mohammedan law that a plaintiff can in all ordinary cases select his own court, Sunni or Ibathi."

During the hearing of the instant case at Zanzibar the parties were not represented by counsel, but the court had the able assistance of Mr. Talati, of counsel, as amicus curiæ. The difficulties facing the court were soon made manifest by Mr. Talati informing the court that he did not know of any authority for the above-quoted statements in the Hafiz and Nasor cases, and that the reference to Volume 10 of the Tuhfat el Muhtaj seemed to be incorrect as that work, the *Tuhfat cl Muhtaj*, had only four volumes. However, research since the hearing has disclosed that the work referred to by Murison, C. J., is not the Tuhfat el Muhtaj, which as Mr. Talati correctly stated exists in four volumes only, but the Hashiat Tuhfat el Muhtaj which contains not only the text of the Tuhfat el Muhtaj but in addition Hashiat (or commentaries) by Sheikh Abdulhamid Sharwany and Sheikh Ahmed bin Kasim el Abaady. For completeness I would add that the writer of the Tuhfat, one Imam Shahabdin, belonged to the Shafei school and was born in 909 and died in 974 Hijrii, so that the Tuhfat was written about 450 years ago. I am informed by an Arab scholar, Mr. Mahomed Aziz Alamoodi of Emali, Kenya, that the *Tuhfat* is an authoritative work, and is a rendering of the Minhaj, which contains the tenets of the Shafei school, into simpler Arabic.

The reference of Murison, C. J., in the *Nasor case* is to the *Tuhfat* text, which reads as follows, in a translation made from that text at p. 119 of Volume 10 of the Hashiat by the High Court interpreter, Zanzibar: -

"And if in a town there were two Kadhis, therefore—if one of the two is original—his summons will be answered;

if not—then one whose summons arrived first;

if they arrived together—there will be ballot:

if they disagree as to their choice—the plaintiff will be answered."

The commentaries, contained in the *Hashiat*, on this text are as follows (again in the translation of the High Court interpreter, Zanzibar): -

"1. His statement. '... And if there are....' It has been stated in the Mughny and the Rawdh together with comments thereto, if two Kadhis will summon a defendant on the application before them by a plaintiff: he will answer the first of the two: if both will summon him together: a ballot will be made; if the parties disagree as to the choice of one of the two *Kadhis*: the plaintiff will be answered notwithstanding the defendant ... His statement, 'if one of the two is original' means and the other being his deputy. His statement, 'his summons will be answered', that is his messenger. His statement, 'if they disagree', refers to the parties and where there is no summons from the side of the Kadhi. His statement, 'in their choice', i.e. (of) the two Kadhis. His statement, 'the plaintiff will be answered', occurs in case where the defendant does not ask for the original Kadhi, otherwise he will be to be answered: because, the one of them who asks for the original will. as a rule, be answered this is as said by the Imaam and el Ghazaly and decided upon by el-shihab el-Ramaly."

"2. ... His statement, 'And if in the town there are two *Kadhis*, therefore: if one of the two is original, his summons will be answered: if not: then the one whose summons arrived first ...?. The intended meaning of 'his summons' is as it is clear: his messenger. And, (the) statement in (book) el Rawdh and comments thereto (says) if both Kadhis will summon a defendant on application before them by plaintiff thereof; he will answer the first of the two summonses. If not, and they happen to summon together: there will be ballot. And, if parties disagree as to choice of one of the two *Kadhis* to end (i.e. the plaintiff will be answered). His statement, 'and if they disagree' refers to the parties. And, his statement, 'in their choice,' i.e. (of one of) the two Kadhis."

The question which immediately arises concerning this text and the commentaries thereon is whether the two Kadhis referred to are of the same school or belong to different schools. In the text itself the first situation considered, viz: "if one of the two is original." would appear to refer to one school only, for the first commentary explains the word "original" as meaning a Kadhi who has a deputy. In that situation apparently disputes would go to the original *Kadhi* in preference to going to his deputy. Presumably the deputy would be of the same school. The other three situations discussed, however, do not throw any light on the above question, and one is constrained to inquire of the context. There is no really available English translation of the *Tuhfat*. There is, however, one of the Minhaj of Nawawi, Howard's translation of the French edition of Van den Berg, and that I have consulted. This is also a treatise on the tenets of the Shafei school. Actually, in what appears to be the relevant chapter, viz: the one entitled "Book 65—Administration of Justice," no light is thrown on the above question. The relevant passage is at p. 501 and reads as follows:-

"The Sovereign may appoint two judges in the same district, either nominating each one to special judicial functions or to a particular portion of the locality, or for a particular time or for a certain kind of proceedings; or nominating both of them to the same functions, except that it is not lawful to order them to give judgment together."

This clearly is of no help in solving the question under consideration. I have therefore had translated by Mr. Alamoodi the context of the *Tuhtat*, It reads as follows (pp. 119 and $120$ ): —

"Where the *Imam* or his deputy (or competent authority) appoints two Kadhis (or more) in the same township, each with specific jurisdiction as to different areas of the township or each to judge during a specified period, or each to judge different sets of disputes (e.g. if he appoints one to judge civil causes or between men, and the other to judge criminal cases or between women) then such *Kadhis* would be competent to try those cases for which they have been specifically appointed. (Provided there is no dispute between the contesting parties as to who should try a particular case-if the dispute is between a man and a woman and there is either a *Kadhi* appointed to judge between men only or a *Kadhi* to judge between women only then neither *Kadhi* would be competent to judge such a dispute--there must be a third *Kadhi* who has been appointed to try cases between a man and a woman). But if he (the *Imam*) does not restrict their jurisdiction—as to areas of a particular township, period or set of disputes—and appoints them to try all cases generally, then they shall be competent to try all cases.

If there are two *Kadhis* in the same township and that one is the original *Kadhi* and the other a deputy, it shall be to the original *Kadhi* that all disputes shall be referred first. But if both Kadhis are of the same status, it shall be competent for the *Kadhi* to whom a dispute has first been referred to try such cases. In the event of such a dispute being referred to two Kadhis simultaneously, the right as to which *Kadhi* is to judge shall be decided by ballot. If the parties in dispute do not agree to the ballot, the plaintiff shall have the option to choose the *Kadhi*. If either party to the dispute is both the plaintiff and the defendant (as in case of a counter claim) and they do not agree as to which Kadhi shall try the case, each party shall go to the nearer Kadhi to him of the two and in the event of both Kadhis being in the same distance, then the issue shall be decided by ballot.

Any Kadhi so appointed by the *Imam* or his deputy (or competent authority) shall judge independently of any other Kadhi unless the Imam specifies that the Kadhis shall sit together to try disputes in which case an independent trial by any such *Kadhi* shall be void.

The appointment of two *Kadhis* to sit together is usual when such Kadhis in their trials are instructed to follow same Imam in applying a certain law or a certain precedent established by former *Kadhis* and not so much the case when the *Kadhis* have to use discretionary powers."

It cannot be said that this throws any substantial light on the problem. The plain fact seems to be that the problems likely to arise when the Kadhis are of different schools are not dealt with. The only relevant reference that Mr. Talati could find is one to the well-established rule that a *Kadhi* must administer the law according to the tenets of his own school, regardless of the sect or school to which the litigants adhere. This Mr. Talati found in Vol. 4, of the *Tuhfat el* Muhtaj at p. 268, and he put in evidence a translation (exhibit C. A. 2). That rule raises no difficulties when the parties agree to take their case before a *Kadhi* not of their own school. But the situation now under consideration, i.e. when the parties do not so agree, is obviously one which raises difficulties and requires special analysis and special provision.

I have been unable to find anything in Abdur Rahim's Muhammadan Jurisprudence or Ameer Ali's Mohammedan Law which throws any light on the problem, but there is a passage in Van den Berg's translation of the Minhaj of Nawawi which is of some help. The passage in question reads as follows (p. $337$ ): —

"Several repudiations may lawfully be pronounced at one and the same time; but the law does not permit the husband, after saying, 'Your are repudiated thrice,' or 'Thrice in accordance with the Sonna', to spread out these three repudiations over three of his wife's periods of purity; unless he belongs to a school which, like that of Malik, forbids pronouncing more than one repudiation at a time. \*In this matter the court should respect the prescriptions of the school to which the husband belongs, even where his ideas are not in conformity with the precepts of our school, for it is a matter or personal status."

The last sentence of this passage is preceded by a sign $(*)$ which indicates that there are authorities of repute who incline to the contrary opinion. The matter accordingly is controversial but nevertheless Nawawi puts forward his view as preferable and the better way of regarding and resolving the question (*vide* Introduction, p. XII). There is no doubt that his view is in accordance with the fundamental principle and dictum of the Prophet "My people will never agree in an error" so strongly held by the Shafei school (Abdur Rahim, op. cit., p. 29). That a woman who has been irrevocably divorced according to the tenets of the school of her husband and herself should be declared not divorced by a Kadhi of another school is undoubtedly an error, and I find it difficult to understand why such a serious error affecting so fundamentally and adversely the personal status of husband and wife should have existed for so long.

In the absence of any specific provision concerning the rights and duties of Kadhis of different schools I am of the opinion that the passage in the Hashiat Tuhfat el Muhtaj referred to by Murison, C. J., in Nasor's case deals only with Kadhis of the same school. Firstly, the treatise is according to the tenets of the Shafei school only. Secondly, the position of a *Kadhi* and his deputy at the beginning of the relevant passage suggests the same school—according to Abdur Rahim, op. cit., p. 389, a *Kadhi* may appoint a deputy if he is empowered to do so by the Sultan. Thirdly, if Kadhis of different schools were intended to be included it is difficult to understand why there is no discussion of the obvious difficulties which are bound to arise, particularly in cases of personal status. And fourthly, the context, as translated by Mohamed Alamoodi, suggests *Kadhis* of the same school rather than otherwise.

I am therefore of opinion that the dictum of Murison, C. J., cannot be upheld, and that the Ibathi *Kadhi* should have declined to hear the case. I would accordingly allow the appeal.