Bhulji v. Kassam Civ. Case 3-D-70; 31/12/12/70; Biron J.

 

Bhulji v. Kassam Civ. Case 3-D-70; 31/12/12/70; Biron J.

           The plaintiff/wife claimed execution of the judgment of the Aga Khan Shia Ismailia Provincial Council awarding her Shs 5,125/= as moh…and Shs.19, 200/= as compensation on her being divorced by the defendant/husband. The Council had further ordered the month until the children were old enough to be placed in his custody.  A preliminary point was raised by the defendant that the High Court had no jurisdiction to entertain the suit under the provisions of the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance Cap.112 on account of the form in which the suit was brought that is as an ordinary civil suit between plaintiff and defendants. The Matrimonial Causes Rules 1956 applied to all suits brought under the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance. These rules provide specific forms and this suit should have been brought in such form as provided by the suit. In answer it was argued for the plaintiff that the suit did not lie under Cap.112 but was in effect a claim to enforce the judgment of the Ismailia Provincial Council.

                        Held: (1) “In my view, the jurisdiction of this Court to    entertain such a cause as this instant one, is in fact derived from Cap.112, and, but for this Ordinance conferring jurisdiction on the the claim brought by the plaintiff. I therefore – and, I may add, not without reluctance p find myself constrained to uphold Mr. Harjit Singh’s submission that this instant claim by the plaintiff, as it really lied under the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance, is governed by the rules made under that Ordinance.”  (2) “On as comprehensive and objective a view as possible of the position, I consider that in conformity with the rules made under Cap.112, before filing this suit the plaintiff should have applied for directions as to what form her claim should take, as provided for in Rule 3 (3) of the Matrimonial Causes Rules which reads: - ‘Unless these rules otherwise provide, every application shall be made to and leave or direction shall be obtained from a judge by summons in chambers.’  I can only plead in mitigation the absence of any precedent, grant leave for the plaintiff to apply for directions as provided for in rule 3(3) above set out, and in the meantime adjourn giving a ruling on the preliminary point raised, pending the direction given on the application for directions, as it is by no means inconceivable that a court may direct that proceedings of this nature should be brought in the form of a civil suit.”