BURHAN MIRDHA Vs. MTKHODEJA BIBI

JUDGEMENT

(1.) The question of law which falls for determination in this Rule is one of considerable importance and relates to the jurisdiction of civil Courts in suits relating to the dissolution of Mahomedan marriages. It appears that a suit was instituted by Mt. Khodeja Bibi against Burhan Mirdha, the petitioner in the rule, for a declaration that her marriage with the petitioner was dissolved by divorce given by the petitioner or in the alternative for a dissolution of the marriage on the grounds of desertion, cruelty, etc., and for an injunction. The suit was filed in the Court of the District Judge of Burdwan. By his written defence the husband, amongst other defences, raised the contention that the suit should have been instituted in the Court of the lowest grade, viz. the Court of the Munsif and not the Court of the District Judge, the suit being valued at Rs. 10 for the declaration and dissolution and Rs. 5 for the injunction. The learned District Judge framed an issue on the question and held, negativing the defence of the petitioner, that he has jurisdiction to try the suit, by his order dated 14 March 1936. The petitioner being aggrieved by this order moved this Court and obtained the rule on the opposite party to show cause as to why the order of the learned District Judge should not be set aside. The learned District Judge rested his conclusion on the ground that the District Judge is the Kazi for Mahomedan marriages, and that in practice the District Judge has tried such cases and relied on a decision of this Court in Mafizuddin Mondal V/s. Rahima Bibi .

(2.) As the question is one of some importance as it involves the question of proper forum of Courts for dissolution of Mahomedan marriages, the matter has been referred to a Special Bench. The learned District Judge's decision has been attacked on several grounds: (i) There is a special enactment abolishing Kazis (Act 11 of 1864), and as the question of the proper forum for litigation is one of procedure and not of substantive law the matter must be governed by the Civil Procedure Code. (ii) There is no text of Mahomedan law which countenances the proposition that all matrimonial matters must be determined by the Chief Kazi. (iii) The cases which lay down that the District Judge in British Administration corresponds to the Kazi of Mahomedan times are all oases of wakf and should not be any guide with regard to matrimonial matters. These contentions seem to us to be well founded and must prevail.

(3.) It appears to us that the idea or notion that the principal Court of original jurisdiction under the British Government in India is vested generally speaking with the powers exercised by the Kazi has been derived from cases relating to wakfs under Section 92, Civil P. C, or to cases of granting of leases of wakf property: see Shama Churn V/s. Abdul Kabeer (1899) 3 C W N 158 and Nemai Chand V/s. Golam Hossain (1910) 37 Cal 179. Indeed the Mahomedan jurists themselves restrict the jurisdiction in regard to wakfs and charities to the Chief Kazi (the Kazi- ul-Kuzzat). For example it is stated that the power of sanctioning alteration of investment or change of wakf property, granting longer leases than are ordinarily allowed by law or provided for by the wakfnama, and similar acts, is vested only in the Chief Kazi: see Rt. Hon ble Syed Ameer Ali's Mahomedan Law, p. 480, note (2), Edn. 4. The functions of the Kazi with regard to wakf cases are really the functions of the Chief Kazi who would correspond to the principal civil Court of original jurisdiction. The wakf cases must therefore be kept apart when we are considering the question of the forum regarding matrimonial matters where the parties are Mahomedans. It may be pointed out even in a recent wakf case from Lower Burma the Judicial Committee used language which goes to show that the place of Kazi in the British Indian system is taken by the civil Courts: see Mahommed Ismail Ariff V/s. Ahmad Mulla Dawood AIR 1916 P C 132 at p. Mahommed Adamji Peerbhoy V/s. Akberally Abdulhussein Adanji Peerbhoy . But as these two cases were under Section 92 of the Code, the Civil Court was the District Judge. With regard to matrimonial disputes amongst the Mahomedans however the civil Courts have taken the place of Kazis. In Edn. 5 of the Rt. Hon ble Syed Ameer Ali's Mahomedan Law this position has been made clear as the following extract from the said book, at p. 525, will show: The question naturally arises how should the parties act in British India or even in Moslem Feudatory States where no Kazis have been left to deal with matrimonial difficulties of this character. The civil Courts have taken the place of Kazis.