Maleksultan v Jeraj

• Jurisdiction: Kenya
• Date: 22 January 1955
• Court: Court of Appeal of Nairobi (Kenya)

East Africa, Court of Appeal of Nairobi.

(Sir Barclay Nihill, President; Sir Herbert Cox C. J. (Tanganyika) and Briggs J.A.)

Maleksultan

and

Jeraj.

Trust Territories — Obligations of Administering Authority — Duty to Recognize Customary Religious Laws in Respect of Marriage — Former Mandated Territory — The Law of Tanganyika.

The Facts (per Sir Barclay Nihill).—“This is an appeal from a judgment of the High Court of Tanganyika. The appellant is an Asiatic woman who by religion is a Khoja Mohammedan follower of His Highness the Aga Khan. On the 3rd of August, 1945, she married the respondent in Dar es Salaam according to the rites and ceremonies, and rules and regulations, of the Khoja Ismaili sect. The respondent at the time of the marriage resided and carried on business in Uganda, to which territory he took his bride. The marriage turned out unhappily and, in 1946, the appellant lodged a complaint before the Ismailia Provincial Council in Dar es Salaam. She appears to have obtained an order equivalent to an order for restitution of conjugal rights, but this order the respondent, who was still in Uganda, ignored. In 1950 the appellant came to know that the respondent had married a Shia Itnashry girl, and in 1951 she again complained to the Provincial Council asking for a divorce, arrears of maintenance, and the delivery to her of certain clothes and ornaments. The Council dissolved her marriage and ordered the respondent to pay her Sh. 18,000. The respondent has never complied with this order.

“It is this non-compliance with the decision of the Provincial Council that caused the appellant to seek a remedy in the High Court of Tanganyika. In her amended plaint she asked for divorce, certain arrears of maintenance and delivery back to her of a gold necklace. Before the amended plaint was filed, the original plaint came before Mr. Justice Mahon of the High Court of Tanganyika on a preliminary issue of jurisdiction. Mr. Justice Mahon held that the High Court had jurisdiction to hear and determine a matrimonial suit arising out of the marriage of non-Christian spouses either of whom is an Asiatic, if at the time of the institution of the suit the petitioner was domiciled in Tanganyika (see section 3 (1) of Cap. 112 of the Laws of Tanganyika, as amended by section 2 of the Marriage, Divorce and Succession (Non-Christian Asiatics) (Amendment) Ordinance, 1947, 1949). He ordered, however, that the facts establishing jurisdiction must be pleaded and proved. When the suit on the amended plaint again came on for hearing, the husband's counsel took the preliminary point that the Court had no jurisdiction to entertain the action. The husband gave evidence, and his evidence established that he did not possess a Tanganyikan domicil. On this evidence the Court was asked to hold that the English legal rules with regard to a wife's domicil applied and that the wife therefore in this case did not possess a Tanganyikan domicil. The learned Judge found as a fact that the husband was domiciled in Uganda and that the domicil of the plaintiff was that of her husband. Accordingly, he further held that he had no jurisdiction to entertain the suit, which he dismissed with costs. …”

On appeal to the East African Court of Appeal, counsel for the respondent raised certain questions regarding the interpretation of the statute law of Tanganyika, which appear more fully in the various judgments reported below. In essence he argued that the High Court of Tanganyika had no jurisdiction under the statute law of the Territory to entertain the case, and...