Saada Jamaliv Hassani Swaleh. Civ. App. 24-D-69; 31/10/69; Makame Ag. J.

Saada Jamaliv Hassani Swaleh. Civ. App. 24-D-69; 31/10/69; Makame Ag. J.

The plaintiff petitioned for divorce in the primary court on the ground that she had agreed with her husband, in accordance with Islamic Law, that if she paid him a sum of money (in this case, Shs. 400/-), he would divorce her by talak within three months, Before the expiry of the period she paid the money into court, but the defendant refused to accept it or to give her a divorce. The primary court held that she was entitled to a divorce. On appeal to the district court, the husband claimed that he had agreed to give a divorce only on receipt of the money and not automatically at the end of the period. The district so held and set aside the primary court judgment.

            Held: (1) “In his judgment the district magistrate referred to section 57 of Nikahi by Buhriy, which says, inter alia:- “Mume alisema wakati wowote unipapo Shs. 100/- nimekuacha, hawezi kukataa tena, na wakati wowote mke atowapo Shs. 100/- ataachika tu..” the magistrate seeks to distinguish this from the agreement in the present case apparently on the basis that the word “nimekuacha” is in the past perfect tense. I am of the clear opinion that such a fine distinetion is wrong.” “Reading the whole khului (sections 52 to 67) as opposed to a mere quotation of a part of section 57 out of context, it emerges quite clearly that the words quoted by the district magistrate are merely one of the possible formulae to be used and are not meant to exclude any other formula. If the learned author had intended to exclude any word other than “nimekuacha” he would have done so specifically.”(2) “In this type of divorce the operative factor is the offer to pay, and once this offer is accepted the operation of the divorce is immediately effective and not postponed until the execution.

In the instant case therefore it would be at the end of the three months agreed upon between the parties. This view is supported by D.F. Mulla in his Principles of Muhammadan Law, 14^th Edn., at page 272.” (3) “It would be inequitable and against the spirit of the law for Swaleh to make Saada fulfil her part of the contract – find and offer to him the Shs. 400/- and then for him to refuse to perform his part of the contract.” (4) “The correct position would seem to be that the transaction was agreed upon as a result of a mutual agreement (and aversion). This makes it a mubar’at divorce and not a khula divorce.” (5) Judgment of District court set aside, Respondent to accept the 400/- and to execute talak. For avoidance of doubt, in either case, the talak was to be talak-i-bain complete, irrevocable, and not subject to ‘rejeya’.