Rafigue v Rafigue

• Jurisdiction: Trinidad & Tobago
• Judge: Wooding, C.J.,Phillips, J.A.,Fraser, J.A.
• Judgment Date: 10 November 1966
• Neutral Citation: TT 1966 CA 132
• Docket Number: No. 540 of 1966
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 10 November 1966

Court of Appeal

Wooding, C.J.; Phillips, J.A.; Fraser, J.A.

No. 540 of 1966

Rafigue

and

Rafigue

Appearances:

Family Law - Husband and wife — Muslim Marriage — Complainant and Defendant were parties to a Muslim marriage. Question arose whether the Muslim marriage and Divorce Ordinance has put Muslim marriages “now on par with all other marriages recognised by the law of the land”. — The Muslim Marriage and Divorce Ordinance has put Muslim marriages effected or contracted and registered under that or the former Ordinance on par, both as regard status and remedy with all other marriages recognised by the law of the land.

JUDGMENT OF THE COURT:

1 On April 22, 1959, the former Full Court of Trinidad and Tobago delivered judgment in Henry v. Henry (1959) 1 W.I.R. 149 in which it held that –

1

“It is a well established principle of law that the only kind of marriage that entitles the parties hereto to the remedies, adjudication or relief of the matrimonial law of England (which is the basis of our general law relating to marriage) is a marriage that is monogamous in the Christian sense of the term”; 2. the effect of s.15 of the Immigration (Indian) Ordinance “is to establish a clear distinction between Muslim and Hindu marriages on the one hand and monogamous or ‘Christian’ marriages on the other hands the latter being the only kind of marriages that are, in the absence of any statutory provision, e.g. s.10 of the Hindu Marriage Ordinance, subject to the general law”. 3. Nothing in the Muslim Marriage and Divorce Registration Ordinances Ch. 29 No. 4, so provided either by express enactment or by necessary implication; and 4. There was accordingly in respect of a Muslim marriage no jurisdiction in the Courts to make an order under the Separation and Maintenance Ordinance Ch. 5 No.15.

2 Notwithstanding the repeal and replacement of the Muslim Marriage and Divorce Registration Ordinance by the Muslim Marriage and Divorce Ordinance, No.7 of 1961, the magistrate for County Corona sitting in Chaguanas is of the view that the new Ordinance did not cure the vice of the former Ordinance. He therefore stated a case for consideration and determination by this Court whether the Muslim Marriage and Divorce Ordinance has put Muslim marriages “now on par with all other marriages recognised by the law of the land”.

3 One of the distinguishing features of the former Ordinance upon which reliance was had in Henry v. Henry...