Sabini Duka v. Amani Huruma. Civ. App. 247-D68; -/8/68; Saudi J.

Sabini Duka v. Amani Huruma. Civ. App. 247-D68; -/8/68; Saudi J.

Appellant’s daughter Zainabu and the respondent Amani had been married in the Moslem Ahmadiya sect since 1957. In January 1968, the respondent left the Ahmadiya sect and jointed the Kadian sect. After consultation with two Sheikhs, Zainabu left the respondent and later married another man, on the grounds that her marriage to the respondent had been nullified by the latter’s action in changing his sect, and this therefore left her a free woman. The respondent commenced proceedings, claiming restitution of conjugal rights, although the other party was not Zainabu, but her father. The primary court held that he marriage had been nullified by the respondent’s changing his religious sect. On appeal, the District Court reversed this, and held that the marriage was still valid. On further appeal

Held: (1) “In his Principles of Mohamedan Law, 14^th edition, Mulla deals with the issue of change of sect in paragraph 31 at page 26. there he says that:- “A Mohamedan male or female who has attained the age of puberty, may renounce the doctrines of the sect or sub-sect to which he or she belongs, and adopt the tenets of the other sect or any other sub-sect, and he or she will thenceforth be subject to the law of the new sect or sub-sect”. He [Mulla] says that a marriage between a Shia male and a Sunnni female is valid but the wife’s status is not affected as she retains her rights under the Sunni law to which she belonged before the marriage. Mulla also says in paragraph 259 that a Mohamean male may contract a valid marriage not only with a Mohamedan woman but also with a Kitabi, that is, a person who professed any recognised religion, such as a Christian. Mohamedans are not allowed to marry fire-worshippers or idolaters, but a marriage with one of these is not void and is only irregular. A Mohamedan woman does not enjoy the same privilege, and she cannot contract a valid marriage except with a Mohamedan. But such a marriage between her and a non-Muslim is not void but irregular.’ (2) “The change of religious sect by either spouse need not necessarily nullify his or her marriage with the other ……..[A] marriage between the religious sects of Mohamedans is permitted, and if that is the case there is no valid ground for Zainabu to declare that her marriage with Amani has been nullified by Amani’s change of religious sect so as to entitle her to leave him and become a free woman. The alleged marriage of Zainabu with another man is certainly invalid and cannot stand in the way of Amani’s claim for restitution of conjugal rights, although the court is fully aware of the complications that have been brought about by the second marriage.”  (3) Appeal dismissed.