Bibi v Mahommed (Civil Suit No. 853 of 1954.) [1955] EACA 91 (1 January 1955)

Mohammedan Law — Divorce — Jurisdiction — Evidence — Kenya Colony Order-in Council, 1921, Article 4 (1) (2) — Jurisdiction conferred upon Supreme Court —Negative effect of Article in case of personal law — Indian Evidence Act, 1872, sections 2, 38, 48, 49, 51, 56, 57 and 60 — Status of personal law — Whether part of general law of Colony—Whether Supreme Court required to take judicial notice of personal law — How proved— Status of personal law embodied in authoritative case law — Effect of decisions of Indian Courts — Standard of proof of personal law in matrimonial cause — Mohammedan Marriage, Divorce and Succession Ordinance, Cap. 148 — Whether Mohammedan rules of evidence applied by section 3 — Section 3, onus of proof of personal law in a matrimonial cause.

The female participant in a matrimonial union between two Asians professing Islam approached the Court by plaint, praying for dissolution of the union, for maintenance and for dowry; pleading jurisdiction by residence. Both parties were in accord that the law to be applied was their personal law, which was Mohammedan Law as interpreted by the Hanafi Sect, but raised issues of how that law ought to be proved. The Court was invited to decide whether their personal religious law ranked as part of the general law of Kenya of which the Court was required to take judicial notice or as foreign law or as a customary law requiring, in a matrimonial cause, strict proof. Parties tendered treatises by learned commentators on Mohammedan Law and cited decisions of the Kenya and Indian Courts. Neither attempted to prove the treatises nor to call witnesses learned in the personal law. The Court also considered whether section 3 of the Mohammedan Marriage, Divorce and Succession Ordinance, Cap. 148, which applies Mohammedan Personal Law to a matrimonial dispute intended also to apply Mohammedan rules of evidence and what standard of proof ought to prevail and ruled procedure ought to be by petition, not plaint. The Court reviewed the majority of cases decided on the topic in East Africa.

Held (7-I11-55):

(1) Section 2 of the Indian Evidence Act, 1872, applied to the Colony, barred invocation of the Mohammedan rules of evidence and Section 3 of the Mohammedan Marriage. Divorce and Succession Ordinance, Cap. 148, did not intend to apply these -rules.

(2) While Article 4 (1) of the Kenya Colony Order in Council, 1921, gave to the Supreme Court as ample a positive original jurisdiction as could be conceived by English jurisprudence, to declare all rights and to right all wrongs, limited only by equity and good conscience, Article 4 (2) proceeded to restrict, over a wide field, that jurisdiction by applying certain positive law to the Colony and to make provision for the enactment of local positive law, yet, in a negative manner, enjoined a discretion not to apply positive law where the result would be contrary to natural justice and equity. Out with the scope of applied and local enacted positive law the Supreme Court retained its ampler jurisdiction, unless bound by authoritative judicial decision.

(3) The intention of the general law that the discretion be exercised does not result in the whole cadre of personal law of whatsoever immigrant becoming part of the general law of Kenya by the mere fact of his immigration. Every immigrant of whatever race, nationality or religion impliedly subjects himself to the general law of the Colony, and out with the law of contract is neither given nor carries with him any right to set up, as part of that general law, his religious law, but, where it would be contrary to natural justice to apply to his personal affairs any other law the immigrant may be permitted to prove his personal law provided it is not contrary to standards of public policy and of morality although these standards must necessarily be those of the Colonial Power.

(4) Section 57 of the Indian Evidence Act contemplates all law as a fact but, at section 56, enacts that no fact of which the Court will take judicial motion need be proved, while section 57 includes among such facts all laws or rules having the force of law in Kenya. Muslim personal law, not yet the subject of authoritative judicial decision has not the force of law in Kenya Colony and is not part of the general law of Kenya and must be proved in such manner as any other fact is proved under the provisions of section 60. This is the principle crystallized in section 3 of the Mohammedan Marriage. Divorce and Succession Ordinance, Cap. 148, sub-section 4 of which lays the burden of proof upon the person alleging governance of his divorce by his personal law.

(5) So soon as any fragment of personal law is defined by reason of an authoritative judicial decision it becomes part of the general law of the Colony, although the cadre of that personal law still remains outwith the ordinary law of the Colony. The Supreme Court takes judicial notice of facets of personal law embodied in decisions of the Privy Council, the Court of Appeal for Eastern Africa and its own decisions and such facets need no longer be proved and apply unless there can be established a sufficient divergence between the interpretation of customary law by the sect concerned in the decision and the sect under consideration.

(6) Decisions of the Indian Courts defining personal law, not on appeal to the Privy Council, have not the force of law in nor form part of the general law of Kenya. Mere citation of any such decisions does not take the place of proof of personal law nor discharge the onus of proof resting on the proponor nor does the Supreme Court take judicial notice of any fact of customary law contained in any such decision.

(7) If an immigrant satisfies the Court his personal law ought to be applied, he is none the less obliged to prove the relevant facts of that customary law in a manner sufficient to enable the Court, without more, to decide the dispute. If any fact of that law remains unproved then the proponor may be held not to have succeeded nor is he in a position to submit that the Court is compelled to take judicial notice of and to seek out for itself the facts of that law as if they were part of the general law of the Colony.

(8) Evidence of personal law may be given by the opinions of experts expressed in any treatise, commonly offered for sale, on the mere production of the treatise, as provided by section 60 of the Indian Evidence Act, but the burden of proving that the treatise is admissible is upon the person preferring it under section 60 as well as under section 104 and this may be done by oral expert evidence.

Semble:

 (1) One of the simplest and most obvious ways of seizing a court of sectarian law is to call an expert witness to produce treatises and to swear to their worth, age and authority and to interpret disputed passages as provided by sections 48, 49 and 51 of the Indian Evidence Act, 1872.

(2) Or to make a joint submission to a learned man, after an agreement to accept his opinion on the customary law as final, and to tender his opinion as a joint admission under section 58 of the Indian Evidence Act.

(3) The practice of the court sitting with an assessor, learned in the customary law, under the provisions of Section 87 of the Civil Procedure Ordinance. Cap. 5, has much to commend it.

(4) A court invited to decide a matrimonial cause by weighing up the facts of Mohammedan personal law has to arrive at a judgment in rein involving, at least some sort of status on part of the participants and is probably entitled to require proof of personal law beyond reasonable doubt.

Cases cited : Aziz Bano v. Muhammed Ibrahim Husain. (1925) I.L.R. 47 All. 838; Bhagwan Singh. Bhagwan Singh, I.L.P. 21 All, 412; Mazhar Ali v. Budh Singh,(1885) 7 All. 297: Mairaj Fatima v. Abdul Wahid, I.L.R. 43 All. 673 ; Abdulla bin Abdurrehman v, Abdulla bin Hamad. (1899) 1 E.A.L.R. 11; The Secretary of State for Foreign Affairs v. Charleworth pilling & Co.. (1900) 1 E.A.L.R. 24 P.C.; Gulam Mahomed v. Gulam Fatima, (1916) 6 E.A.L.R. 119, (1917) 7 E.A.L.R. 30 HaIimabai v. Abdarahim Haji Ismail Mithu. (1904) 5 E.A.L.R. (E.A.C.A.) 130; .Abdreman bin khamis v. Khaniis bin Malim, (1918) 7 E.A.L.R. (E.A.C.A.) 110 ; Fazalan Bibi v. Tehran Bibi, (1921) 8 E.A.L.R. (E..A.C.A.) 200; Gajree Siri Krishan v. Krishna Kuniari, (1955) 28 K.L.R. 23, Gulain Mohamed v. Hadayaf Bibi, (1922) 9 E.A.L.R.(E.AC.A.) 76; Hyde 'v. Hyde and Woodmansee, (1866) L.R. I P. & D. 130; Nachimson v. Nachimson, (1930) P. 217 C.A. ; Ali Karniali v. Hirbhai binri Sam/i Nag/i, (1943) 10 E.A.C.A. 13; Said bin Muhammad bin Kassain El-Ria,ni v. Wakf Commissioners. Zanzibar, (1946) 13 E.A.C.A. 32; Rana Rain/i V. Radhabai Na/ha, (1937) 5 Z.L.R. 91, Fafu,na Bac/,00 i'. Majoi'hi Kara Juma Bolia, (1946) 13 E.A.C.A. 50; Ja1unia bin/I Athzu,na v. A/i Baka, (1918) 7 E.A.L.R. 171 ; Madan La/i Kakar v. Nir,nai Kumari, (1943) 0 (2) K.L.R. 34; Hazara Singh v. Amar Singh. E.A.C.A. C.A. No 10 of 1945 (unreported); Mistry A,nar Singh v. Hazara Sing/i. (1946) 13 E.A.C.A. 18; Fazaldin Satardin v. Din Moliamed. (1928) 11 K.L.R. (E.A.C.A.) 41; Khadija binti Masood bin Seif v. Masood bin Self bin Salim El-Miskiri, (1946) 13 E.A.C.A. 72 ; Fatima binti bin Salini Bakhshuwen v. Mohammed bin Sali,n Bakhshuwen, (1949) 16 E.A.C.A. II; Talibu bin Mwijaka v. Executors of Siwa Ha/i, 2 E.A.L.R. 33; Rana Raniii v. Radabai Na/ha, (1937) 5 Z.L.R. 91; Chhagan/al Purs/zo/am Jani v. Umibai Chhaganial Jani, (1952) 19 E.A.C.A. 187; Abdu//a Tairara v. Hussein bin Kasim, (1953) 20 E.A.C.A. 105; Salina bini  Alawa v. Seyyid Saleh bin Alawi, (1955) 22 E.A.C.A. 105; Ma/eksultan w/o Sherali feral v. Sherali feral, (1955) 22 E.A.C.A. 142; Fatuma Bachoo v. Ma/of/il Kara Ju,na Bolia, (1946) 5 T.T.L.R. 163; Srini Vasan otherwise Clayton v. Srini Vasan. (1946) P. 67; Maw/i Dam/i v. Avalbhai Dam/i Devraj, (1955) 22 E.A.C.A. 162; Hussein bin M'Nasar v. Abdu/la bin Ahmed, (1937) 17 K.L.R. 95; Baraka bin Said Ba/imishi v. Salim bin Abed Basawadi,(1942) 20 K.L.R. 34; Masood bin Said v. Said bin Sal/in bin Mohammed G/iu/um, (1954) 21 E.A.C.A. 1; Kha,nis bin Ah,ned v. Ahimned bin All bin Abdurehnian and 0/liens, (1934) 1 E.A.C.A. 130; Alhman bin Mohamed v. All bin Salim, (1915) 6 E.A.L.R. (E.A.C.A.) 91; Stfjernholni v. Stjernholm, (1955) 28 K.L.R. 183; Bimoto bind All p. Dr. Chur Khan, (3929) 12 K.L.R. 104; Sayyed Omar bin Ahmed Saggaf v. Asha binti Said, (1942) 20 (1) K.L.R. 49.

Morgan for petitioner.

O'Brien Kelly and Sheikh Amin for respondent.