Henry v Henry

• Jurisdiction: Trinidad & Tobago
• Judge: Gomes, C.J.
• Judgment Date: 22 April 1959
• Neutral Citation: TT 1959 HC 1
• Docket Number: Suit No. 292 of 1958
• Court: High Court (Trinidad and Tobago)
• Date: 22 April 1959

Full Court (High Court)

Gomes, C.J.

Suit No. 292 of 1958

Henry

and

Henry

Appearances:

Hyatali and Dolsingh for the appellant.

Borneo for the respondent.

Family law - Muslim marriage — Application for maintenance — Whether magistrate has jurisdiction to make maintenance order in relation to muslim marriage — Application of Separation and Maintenance Ordinance, Ch. 5, No. 15, s. 3 to muslim marriages — Immigration (Indian) Ordinance, Ch. 20, No. 1, s. 15 established.

Appeal by Joseph Henry against a maintenance order of the Magistrate of Cedros. The facts and arguments are fully set out in the judgment of the court.

Cur. Adv. Vult

A wife lawfully married under the provisions of the Muslim Marriage and Divorce Registration Ordinance Ch. 29 No. 4 brought a complaint against her husband under the Separation and Maintenance Ordinance Ch. 5 No. 15 Sec. 3 for maintenance on the grounds of his wilful neglect to maintain her. The Magistrate found the complaint proved and made an order. The husband appealed. At the hearing of the appeal further evidence was received (pursuant to the provisions of Order IX rule 4 of the Orders and Rules of the Supreme Court of Trinidad and Tobago) from an expert witness in Islamic Law and custom which established that Muslim marriages are potentially polygamous.

• Held: (1) The only kind of marriage that entitles the parties there to the remedies, adjudication and relief of the matrimonial law of England upon which the Trinidad general law relating to marriage is based, is a marriage that is monogamous in the Christian sense of the term.

• (2) A Muslim marriage not being monogamous in the Christian sense of the term the Magistrate had no jurisdiction to make an order for maintenance in this case.

Dicta of Lord Penzance in Hyde v Hyde and Woodmansee [ (1866) L.R. 2 P & D 130 at pp. 133 and 135] and of Barnard J. in Risk (Otherwise Yerburgh) v. Risk [1950] 2 All E.R. 973 at pp. 974 and 975] applied.

Cases referred to:–

Gomes, C.J.

1 In this case the respondent instituted a complaint against the appellant under section 3 of the Separation and Maintenance Ordinance, Ch.5 No.15, requesting the court to order him to pay her a weekly sum for her maintenance on the ground that he had been guilty of wilful neglect to provide reasonable maintenance for her. At the hearing of the complaint, she proved that she had married the appellant on the 18 ^th October, 1942, under the provisions of the Muslim Marriage and Divorce Registration Ordinance, Ch. 29 No.4. She also stated that she went through another ceremony of marriage with the appellant on the 18 ^th October, 1952, which was performed by a minister of the Roman Catholic Church and in support she tendered a copy of the Marriage Register kept by the marriage officer, relating to that ceremony. There was no dispute in the Magistrate's Court as to the validity of the Muslim marriage. The Magistrate found that the parties were lawfully married according to the Muslim Marriage and Divorce Registration Ordinance and consequently was not obliged to deal and did not deal with the alleged second marriage. In our view, therefore, no question in regard to the latter arises for our consideration.

2 The Magistrate who heard the complaint found that the parties had been lawfully married under the Marriage and Divorce Registration Ordinance, that the appellant had left the matrimonial home on the 23 ^rd April, 1954 and that he had thereafter failed to provide reasonable maintenance for his wife. He over-ruled a submission which was made by the appellant's counsel that a woman who is married under Muslim rights cannot be granted an order under the Separation and Maintenance Ordinance, and, therefore, made an order against the appellant for payment to the respondent of the sum of $8 per week for her maintenance and support. At the hearing of this appeal a similar submission was made. Counsel for the appellant submitted that the Magistrate had no jurisdiction to make an order in this case or wrongfully assumed jurisdiction in making such an order because the parties to a Muslim marriage do not achieve the status of husband and wife within the meaning of our matrimonial laws, and that as between each other they are not entitled to the remedies or reliefs given by those laws and that accordingly the respondent in this case is not a married woman who would be entitled to obtain relief under the Separation and Maintenance Ordinance. At the hearing of the appeal, counsel was granted leave to call a witness to give evidence on matters pertaining to the Islamic law. The witness, whom the court considers to be sufficiently qualified to speak on that topic, stated that under Islamic law a man is permitted to have four wives provided that he acts equitably between them.

3 In support of his submission, counsel for the appellant drew the notice of the court to a variety of matters. He pointed out that the Marriage Ordinance, Ch. 29 No. 2 is, according to its long title “an ordinance relating to the solemnization and registration of marriages” whereas the long title of the Muslim Marriage and Divorce Registration Ordinance speaks only of “An ordinance relating to the registration of Muslim Marriages and Divorces”. He also indicated the total absence of the verb “solemnize” and its grammatical variations in The Muslim Marriage and Divorce Registration Ordinance whereas the contrary is the case in The Marriage Ordinance. A perusal of those two ordinances shows that a marriage is “effected” under the Muslim Marriage and Divorce Registration Ordinance, whereas it is “solemnized or contracted” under the Marriage Ordinance and also under the Hindu Marriage Ordinance ...