Beg v Begum and Another (Divorce Cause No. 1 of 1946) [1946] EACA 74 (1 January 1946)

## DIVORCE JURISDICTION

## Before THACKER, J.

## MIRZA AMIR BEG, Petitioner

#### $\mathbf{v}$ .

# (1) SAADAT BEGUM, (2) MOHAMED BASHIR, Respondents Divorce Cause No. 1 of 1946

Matrimonial cause—Mohammedan marriage—Father petitioning for dissolution of marriage of daughter—The Mohammedan Marriage, Divorce and Succession Ordinance—Jurisdiction of Court

A Mohammedan father petitioned the Supreme Court for the dissolution of the marriage of his daughter validly married according to Mohammedan law and cited both the daughter and her husband as respondents in the cause.

On a preliminary point whether the Court had jurisdiction to entertain the suit in the form in which it was brought.

Held (17-6-46).—That on a true construction of the Mohammedan Marriage, Divorce and Succession Ordinance only a party to a Mohammedan marriage may institute a suit for dissolution of marriage.

Petition dismissed.

Modera (Dar with him) for the Petitioner.

## Madan for the Respondents.

RULING.—In this petition for dissolution of marriage, the petitioner is the father of the respondent No. 1 who is the wife of respondent No. 2. In other words, it is a case of a father asking the Court to dissolve a marriage, which is admitted by the petitioner to be a valid Mohammedan marriage, between his daughter and her husband. Mr. Modera has cited a text book by Tayabjee on Mohammedan Law, 3rd edition, at Section 79, from which it would seem that according to Mohammedan law a person, i.e. an agent or quasi-guardian not a party to the marriage, i.e. not the husband and the wife, may bring a petition for dissolution of a marriage before the Court and that that Court would have jurisdiction to hear such a suit, and may for good and sufficient reasons dissolve the marriage. I have, however, to satisfy myself first that this Court has jurisdiction to entertain this suit in the form in which it has been brought; namely, for dissolution of marriage where the person bringing the suit is not a party to the marriage, i.e. neither a husband or wife. Chapter 171 of the Laws of Kenya (The Mohammedan Marriage, Divorce and Succession Ordinance) is the governing authority to which I must look first to answer that question. In that Ordinance it is enacted, inter alia:-

S.2. "The expression 'matrimonial cause or suit' means all causes or suits relative to the validity of a marriage according to Mohammedan law and all causes and suits relative to or claiming any species of relief, whether by way of divorce or otherwise, in respect of Mohammedan marriages, recognized or given by Mohammedan law."

S.3 (1). "Mohammedan marriages whether contracted prior or subsequently to the commencement of this Ordinance shall be deemed to be valid marriages throughout the Colony, and the parties thereto shall, subject to the provisions of this Ordinance, be entitled to any relief by way of divorce otherwise which can be had, granted, or obtained according to $\quad\text{or}\quad$ Mohammedan law and such law shall apply accordingly."

It is to be noted that the words are "the parties thereto (that is the parties to the marriage) shall be entitled to any relief by way of divorce".

The words "the parties to the marriage" refer in my opinion to the husband and wife and to no one else, and not to a guardian of one of the parties of the marriage.

S.3 (2). "The Supreme Court and every Judge thereof shall, subject to the provisos hereinafter contained and to the other provisions of this Ordinance, have jurisdiction to hear and determine all matrimonial causes and suits arising out of Mohammedan marriages, wherever contracted at the suit of either party to such marriages, whether such marriages shall have been contracted either prior or subsequently to the commencement of this Ordinance:

Provided always the Supreme Court shall not exercise any jurisdiction as is hereby conferred unless the petitioner is resident in the Colony at the time of the institution of such matrimonial cause or suit as aforesaid."

Here again there is a specific reference to "either party to the marriage". No other person is mentioned. The words must refer, and refer only, to the husband and wife, and if the legislature had intended that a person not a party to the marriage could institute a suit for dissolution of marriage, surely the words "at the suit of either party to the marriage" would have been omitted.

S.3 (3). "In all such matrimonial causes or suits as are mentioned in sub-section (1) hereof, the Supreme Court shall exercise its jurisdiction and act and give relief upon the principles of Mohammedan law applicable to the same respectively and not otherwise."

This, in my view, is to be read in conjunction with the other sub-sections and its inclusion does not give the Court the jurisdiction which the petitioner here seems to place upon it, and this sub-section does not in my opinion widen the jurisdiction given to the Court by sub-sections (1) and (2).

The Uganda case cited, namely Fazalan Bibi v. Tehran Bibi and Mohamed Din Kashmiri, in my view has no material bearing on the question before me, since the revelant section of the Uganda Ordinance appears to be couched in words dissimilar to our local Ordinance and appears to contain no such restriction as is set out in Section 3 of our local Ordinance.

I am asked to read our Ordinance as a whole in deciding whether I have jurisdiction and to say that this Court may hear this petition. That, it seems to me, would be to disregard entirely the restrictive words in Section 3 of our Ordinance.

It may be (I am not to be taken as saying it is so), that by the Hanafi law such a suit may be brought for good and sufficient reasons. I have not heard the respondents on that point. Whether it may or not, I am satisfied that our legislature has restricted the right to bring a petition for dissolution of a Mohammedan marriage to either party to that marriage and that no one else may do so.

For these reasons I hold that the petitioner has no cause of action and his petition is dismissed with costs.