Jani v Mrs Umibai and Others (Civil Appeal No. 58 of 1952) [1952] EACA 187 (1 January 1952)

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and PELLY MURPHY, Ag. C. J. (Zanzibar)

# CHHAGANLAL PURSHOTAM JANI, Appellant (Original Defendant) ν.

## (1) Mrs. UMIBAI CHHAGANLAL JANI, (2) DHARMILA CHHAGANLAL JANI, (3) SATYVATI CHHAGANLAL JANI, Respondents (Original $Plaintiffs$

Civil Appeal No. 58 of 1952

## (Appeal from the decision of H. B. M.'s High Court of Zanzibar-Sir John Gray, C. J.)

Zanzibar—Hindu matrimonial cause—Proper forum—Application of Hindu personal law—Method to be adopted by Judge of H. B. M. High Court.

The first respondent, being the wife of the appellant, sued him on her own behalf and on behalf of his minor daughters for maintenance in H. B. M. High Court of Zanzibar. The parties were Hindus and it was admitted on the pleadings that they were governed by Hindu law.

The respondents alleged appellant's cruelty and danger to their lives in support of the claim for maintenance.

In his judgment the trial Judge found that the evidence fell short of proving cruelty of the character necessary to support a claim for maintenance. But he found there had been abandonment by the appellant after reviewing a number of English authorities and held the respondents were entitled to claim maintenance. The question of abandonment was not raised in the pleadings.

Held (1-11-52).—(1) A Judge acting within the limits of Her Majesty's jurisdiction in Zanzibar is a Zanzibar Judge and is bound to take judicial notice of the Zanzibar law, whatever it may be, applicable to the case before him.

(2) There was no evidence before the Judge as to the particular school or subschool of Hindu law applicable to the parties.

(3) When the Judge decided against the respondents on the issue of cruelty he should have at least framed an issue on the question of abandonment, giving the parties an opportunity of adducing further evidence if they so desired.

(4) $Quære$ —the status of the parties since the establishment of the Republic of India and whether they were not subjects of a non-Christian power and therefore subject to H. H. the Sultan's Court.

Order for retrial made.

Cases referred to: Yamunabai v. Naranjan Moreshwar, (1876) I. L. R. 1 Bombay, 165; Sitabai v. Ramachandrarao, (1910) 6 I. C. 525; Rana Ranji v. Radhabai Natha, (1937) 4 Z. L. R. 91; Charlesworth, Pilling & Co. v. Secretary of State for Foreign Affairs, (1901) 1 Z. L. R. 105<sub>1</sub>; Barton v. O'Swald, (1913) 1 Z. L Ramalinga, (1868) 12 Moo. I. A. 397.

Master for appellant.

$\mathcal{L}$

O'Donovan for respondents.

JUDGMENT (delivered by SIR NEWNHAM WORLEY (Vice-President)).—The appellant herein appeals from a judgment and decree of H. B. M. High Court for Zanzibar, whereby he was ordered to pay to the first-named respondent (who is his first wife) maintenance at the rate of Sh. 250 p.m. and to each of the second and third-named respondents (who are his daughters by the first wife) maintenance at the rate of Sh. 125 p.m. All the parties are Indians residing in

Zanzibar, and it was admitted on the pleadings that they are governed by the Hindu law. For convenience I shall refer to them as the husband, the first wife and the daughters respectively. The husband and wife were married in India in 1918 and there have been six children issue of the marriage, five daughters, of whom three are themselves married, and two who are still minors aged 13 and 10 and who are the second and third respondents to this appeal. The one son died about four years ago, and the wife alleged that this event has had a significant effect on the husband's treatment of her. The marriage, however, seems to have started inauspiciously, for within a year or so the first wife brought an action of some description against the husband in the Courts of India where they were then living, but this action appears to have been withdrawn or settled on terms. Shortly after this the husband married a second wife who is still living with him and by whom he has another family. It seems fairly clear from the evidence that the second wife has successfully displaced the first wife in the husband's affections.

Since the year 1920 or thereabouts the husband, with his two wives and their children, have been living in a house owned by him in Zanzibar, where he has prospered and accumulated property. It is not very clear from the evidence in what part of the house the first wife and her children lived when they first moved in, but it is certain that for some 22 years or so she and they have lived, and are still living, in two rooms constructed on what was originally the open flat roof of the house, and that they lead there an existence almost entirely separate from the other half of the family who occupy the first floor, the ground floor being mainly the husband's shop. It is also certain that for some years past the husband has ceased to take meals with or to visit his first wife and family in their quarters, and that these quarters are dilapidated and poorly furnished.

The action was begun by the first wife on her own behalf and as next friend of her two minor daughters claiming maintenance and the provision of a separate residence. The substance of the charges against the husband was set out in paragraphs 5 and 6 of the plaint as follows:-

"5. The defendant has always given ill-treatment to the plaintiffs and for over last three years, since the death of the son of the plaintiff No. 1 such ill-treatment has been aggravated. The defendant has failed to provide sufficient food, clothing and other daily needs of life to the plaintiffs and has continually been abusing, beating and oppressing them amounting to<br>cruelty and danger to their life. Consequently the life for plaintiffs in the defendant's house has become miserable and unbearable.

6. The plaintiffs repeatedly asked the defendant to provide them with a separate residence and maintenance but the defendant has failed and neglected to do so."

These allegations were denied in the defence, in which it was asserted that the respondents have always lived comfortably with the appellant and the other members of his family. The learned trial Judge found upon evidence that the husband had on various occasions beaten the first wife when she went to him to ask for better treatment and he accepted the first wife's evidence that she and her children were not being adequately supplied with food and clothing in consequence of which she, though a caste Brahmim, was obliged to take work with Muslims and to beg for charity from Hindu friends. He found, however, that, although the husband's conduct had been harsh, the evidence fell short of proving cruelty of the character necessary to be proved in cases of this nature, namely, "that there must be actual violence of such a character as to endanger

personal health or safety or there must be reasonable apprehension of it". He adopted this criterion from the judgment of the High Court of Bombay in Yamunabai v. Naranjan Moreshwar, (1876) I. L. R., 1 Bombay, 165.

This finding, however, did not in his view dispose of the case and, founding on a judgment of the same Court in Sitabai v. Ramachandrarao, (1910) 6 I. C. 525 that, in an action for maintenance at the instance of a Hindu wife, it is not necessary to prove cruelty if there has been abandonment of the wife, he went on to consider whether in fact in the instant case there had been such abandonment. After reviewing the evidence and a number of English authorities on the question of constructive desertion while the spouses continue to reside in the same house, he came to the conclusion that "it is impossible to describe the husband and his first wife as living together, even though there may be no physical separation between the two parts of the house in which each lives. The plaintiffs have since 1948 not been supplied adequately with the necessaries of life and I am satisfied that there has been abandonment by the defendant of his first wife, which entitles her and her children to claim maintenance". He accordingly made the orders now appealed against.

The appellant's advocate has invited us to review the learned Judge's finding of fact on this issue, but I do not at this stage propose to do so or to express any opinion upon it.

Three questions of law are raised by the memorandum of appeal, namely—

- 1. that the trial Judge having held that the evidence fell short of proving legal cruelty should have refused to grant any relief to the plaintiffsrespondents and that he was not entitled to consider the issue of abandonment, which had not been raised on the pleadings and had not been argued before him; - 2. that according to Hindu law a wife living in her husband's house is not entitled to maintenance allowance; and - 3. that under Hindu law a daughter is not entitled to a maintenance allowance if the father maintains her in his own house.

These questions, and particularly the second and third of them, bring meto what I regard as the real problem in this appeal. As I have already said, the parties admitted on the pleadings that they were governed by Hindu law and I presume that they are Hindus by religion and that their marriage was a valid Hindu customary marriage. Now it has been held in H. B. M. High Court for Zanzibar that, in matrimonial matters, Hindus in Zanzibar are governed by their personal law (per Law, C. J., in Rana Ranji v. Radhabai Natha, (1937) 4 Z. L. R. 91) and I have no reason to suppose that this decision has not been consistently followed in the Courts of Zanzibar.

But if it be correct that the personal law of the parties governs this and other matrimonial proceedings between Hindus, the problem still remains as to how this personal law is to be ascertained, for it is not contained in any local legislation or applied Indian Act. In Charlesworth, Pilling & Co. v. Secretary of State for Foreign Affairs, (1901) 1 Z. L. R. 105, the Privy Council, having: decided that the local law of Zanzibar, which in that instance was Mahomedan. law, governed the incidents of land, then said, at pages $112-3$ :—

"The next question is how the local law is to be ascertained. Is it matter of evidence, or should the Consular Court take judicial notice of it? The Vice-Consul held that he was an English Judge, that it was to him foreign law and must be proved by evidence; though he says it is an extreme instance of that principle, especially as he is also one of the Sultan's.

Judges administering Mahomedan law. That circumstance, however, should make no difference in the principle, though it enabled the Vice-Consul personally to appreciate the evidence which he took.

The situation is one of some complexity. The root of the jurisdiction is the treaty grant or other matter by which the Queen has power and jurisdiction in Zanzibar. She thereby becomes an authority in the foreign territory of Zanzibar, though exercising her powers quite independently of the will of the Sultan. On that state of things the Foreign Jurisdiction Acts supervene for the purpose of binding all the subjects of the Queen; and they enable her to order in what way her authority in Zanzibar shall be exercised. She orders that it shall be exercised in accordance partly with certain Anglo-Indian laws and partly with English law. The English law again for certain purposes, of which the present purpose is one, incorporates the local law of Zanzibar. But throughout the matter Zanzibar remains foreign territory, and the Queen and her officers are acting as Zanzibar authorities by virtue of the power which she has acquired, and which is within its limits a sovereign power. It results that a Judge acting within these limits is a Zanzibar Judge, and is bound to take judicial notice of the Zanzibar law, whatever it may be, applicable to the case before him.

The Vice-Consul acting on his view took evidence on the Mahomedan law, which he found to be in favour of the defendant's contention. He also stated that such was his own opinion which his experience as a Mahomedan Judge qualified him to form. Their Lordships are now called upon to pronounce for themselves, and to apply, the Mahomedan law which the plaintiff's counsel have argued to be in their favour. On this point they do not feel any difficulty. They follow the law laid down in the Hedaya."

The conclusion reached by their Lordships seems clear, namely, that a Judge acting within the limits of H. M. jurisdiction in Zanzibar is a Zanzibar Judge and is bound to take judicial notice of the Zanzibar law, whatever it may be, applicable to the case before him; and I find it difficult to reconcile this with the passage in the judgment of Murison, J. (as he then was) in Barton v. O'Swald, (1913) 1 Z. L. R. 420, at pages 421, 422, where he said: $-$

"The second point is: How are the provisions of the Mahomedan law upon the matter in question in this case to be ascertained? Although I am a Sultan's Judge, I am, in this case, siting as a British Judge. The Mahomedan law is, in a British Court, a foreign law; and it is laid down in Charlesworth's case that although a British Judge may, qua Sultan's Judge, be in a better position to appreciate the Mahomedan law by reason of his acquaintance with it, that law is nevertheless, to him sitting as a British Judge, a foreign law, and must, therefore, be ascertained from evidence tendered by an expert on the Mahomedan law. Sheikh Ali bin Mahomed, a Cadi of the Ibadi School and Sheikh Ahmed bin Sumeit, a Cadi of the Sunni School have therefore been called, and have given evidence upon the Mahomedan law applicable."

It does not seem, however, from such research as I have been able to make in the Zanzibar Law Reports in the short time at my disposal that Murison, $\hat{J}$ 's. view has been generally followed, or even that he consistenly followed it himself. In order to ascertain Mahomedan law it is permissible for the Judge to consult the Kathis of the different schools of Mahomedan law in Zanzibar and to study books of acknowledged authority such as the Hedaya or the Mihaji-et-Talibin.

The position, however, of a Zanzibar Judge who is called on to take judicial notice of Hindu law appears to me far more difficult. It seems most improbable that any authoritative source books are available locally and I do not know

whether there are any Pundits living in Zanzibar who would be available to assist the Court. The only works to which we have been referred are modern text-books which contain a set of rules based partly on judicial decisions and partly on the author's own comments which may or may not be authoritative. It appears from one of these commentaries, namely, that of D. F. Mulla, 10th ed. 1946. Chapter II, that there are two main schools of Hindu law, the Dayabhaga and the Mitakshara and that though the latter prevails in what was formerly British India, except Bengal, yet it is sub-divided into a number of minor schools or sub-schools which themselves may be modified in a particular locality by usage. Where there is a dispute as to a doctrine of Hindu law, "the duty of a European Judge, who is under the obligation to administer Hindu law is to ascertain whether the doctrine has been received by the particular school which governs the district with which he has to deal and has there been sanctioned by-usage; for under the Hindu system of law clear proof of usage will outweigh the written test of the law. "See Collector of Madura v. Mottoo Ramalinea. (1868) 12 Moo. I. A. 397.

In the matter now before us there is no evidence as to the particular school or sub-school of law which is applicable to the parties. They are probably like most Indians in Zanzibar from Gujaret in the former province of Bombay and it may well be that decisions of the High Court of Bombay may assist the Court in determining the law applicable; but on the materials now before us this is merely speculation, and I am certainly not prepared on this scanty material to say what the Hindu law is on the issues raised on this appeal. The learned trial Judge having accepted as a proposition of Hindu law that an abandoned wife is entitled to maintenance then appears to have assumed that conduct which in England to-day might be held to be constructive desertion could also amount to abandonment under Hindu law. He cites no authority for this proposition and Mr. Master has suggested that a Hindu wife cannot be abandoned so long as she remains under her husband's roof. Further more, the learned Judge having found that the first wife had been abandoned appears to have assumed that she is thereby entitled to the custody of the minor daughters and to an allowance for their maintenance. Here again he cites no authority for this view, nor had he before him any expert evidence of the relevant Hindu law. Again Mr. Master has contended that the learned trial Judge was wrong and that a daughter is only entitled to maintenance so long as she submits to her father's will and is under his control. These questions were not gone into in the course of the trial and, for my part, I find myself unable to form any opinion on them with the scanty materials on the record.

As well as the difficulties mentioned above, there are other reasons why in my opinion this case has not been satisfactorily tried.

I consider that once the learned Judge had decided against the first wife on the issue of cruelty, he should have at least framed an issue on the question of abandonment, which would have given the parties an opportunity of adducing further evidence if they so desired. As it is, although there was an allegation in the plaint of general neglect it cannot be said that the issue which in fact determined the judgment was ever satisfactorily canvassed. I therefore consider that the only course open to this Court is to set aside the orders made by the Court below and to remit the case to H. B. M. High Court in Zanzibar for trial and judgment on the following issues: —

- (a) Did the appellant abandon the respondent according to the Hindu law applicable to the parties? - $(b)$ If so, to what relief is she entitled?

#### (c) If there has been abandonment, is the first reespondent under the Hindu law applicable entitled to custody of the second and third respondent and, if so, is she entitled to an allowance for their maintenance?

I have one further observation to make. It has been assumed throughout these proceedings that H. B. M. High Court for Zanzibar was the proper forum for the trial of this dispute. Whether that assumption is correct or not depends upon whether the parties, or any of them, are or are not British subjects or British Protected Persons: see sections 3 and 6 of the Jurisdiction Decree, 1908, and see also "The Dual Jurisdiction in Zanzibar" by J. H. Vaughan, 1935, pages 17 and 18.

So long as the Sovereign of Great Britain was Emperor of India no doubt could exist as to the status of His Indian subjects, but I confess I do not know what is now their status since the establishment of the Republic of India. In fact, there is no evidence in the present case as to where any of the parties were born or as to their original or any subsequently acquired status. If they are not "persons subject to this Order" as defined in section 6 of the Jurisdiction Decree but are subjects of a non-Christian power (as I believe the Republic of India to be) then they are subject to the jurisdiction of H. H. the Sultan's Court. There may not be, and I believe there is not, any great practical difference between proceedings in the two Courts, but as this is a question affecting jurisdiction, it is, I venture to suggest, a matter to which the Courts of Zanzibar should always direct their attention.

SIR BARCLAY NIHILL (President).-I have had the advantage of reading the judgment of the learned Vice-President, with which I am in complete agreement. An order for a re-trial on the issues suggested will be made. After consultation with my learned brothers, we propose to make the following order as regards costs. The appellant to have the costs of this appeal. As regards the abortive trial, each party is to bear their own costs and the costs of the further trial to be in the discretion of the Court below. If the appellant has already paid the costs awarded against him, the amount involved must be refunded to him.

I must add that this Court entirely shares the opinion expressed by the learned trial Judge that this unhappy litigation could and should be settled.

Whatever may be the final outcome of this case, the appellant will emerge with little credit. Our order for further trial is of course dependent on a nonsettlement between the parties. If such a settlement can even now be arrived at, this event will be welcomed by this Court and would do much to restore the appellant's reputation.

PELLY MURPHY (Atg. C. J.).—I concur with the judgment of the learned Vice-President and with the orders proposed.