Hasumati Chhaganlal v Bashirhussein Gulamali & Another 1983 TLR 320 (HC)

HASUMATI CHHAGANLAL v BASHIRHUSSEIN GULAMALI & ANOTHER 1983 TLR 320 (HC)

Court High Court of Tanzania - Zanzibar

Judge Ramadhani CJ

August 7, 1980

MISC. CIVIL APPLICATION 1 OF 1980

Flynote

Family - Marriage between Indian citizen and Zanzibari - Applicable law - 'Lex domicili' of F Zanzibar.

Family Law - Age of Majority - Whether it affects capacity to marry on religion/religious rites of party - Section 2 Age of Majority Decree, Cap. 53.

-Headnote

The Applicant is a citizen of India and the mother of the 2nd Respondent (Padmaben Chhaganlal). Padmaben, aged 14 had fallen in love with a Zanzibar man, and had agreed to convert to Islam and went ahead to contract an Islamic marriage without the knowledge and consent of her parents. The mother petitioned to High Court for the annulment of the marriage, as well as the annulment of the conversion to Islam. Furthermore, she petitioned the Court to punish her daughter's alleged husband under the Spinsters Protection Decree, No. 5 of 1970.

Held: 

(i) In a marriage contracted in Zanzibar between an Indian citizen and a Zanzibari, I the applicable law is that of Zanzibar, the 'lex domicili',

(ii) although according to the Age of Majority Decree, Cap. 53 the age of majority in Zanzibar is 18 years it does not affect capacity to marry or religion or religious rites of the person who has reached the age of discretion;

(iii) in determining the age of discretion a court should consider whether the young person under consideration had full capacity to understand what he/she was doing, in the present case the girl had such capacity and hence the marriage and conversion to Islam were valid;

(iv) since the girl had legally undergone a conversion from Hinduism to Islam, her Hindu father could not under Islamic law become her walii, a role which was legally exercised by the Kadhi.

Case Information

Order accordingly.

Cases referred to:

1. Re An Application by Barbara Simpson Howison [1959] E.A. 568.

2. Agar-Ellis v Lascelles [1883] 24 Ch. D. 317.

3. Mbwana v D.C. Pemba Z.L.R. 20.

4. Soud v Jokha 5 Z.L.R. 16.

5. Salima Alawi v Seyyid Saleh Alawi Civ App. 21 of 1953 HC Zanzibar (unreported).

[zJDz]Judgment

Ramadhani, C.J.: The Petitioner, Mrs. Hasumati Chhaganlal, has moved this court for three things. First, the dissolution of the marriage between her daughter called Padmaben and a young man called Bashirhusein Gulamali which was solemnised by the Hon. Chief Kadhi. Secondly, she and her husband should be given custody of their minor daughter. Lastly, legal action should be undertaken against Bashirhusein Gulamali under Decree No. 5 of 1970. The Petitioner also wanted to know whether the cell leader, one Bibi Mgeni Said, was given custody of their daughter by the court for the night of 1st July, 1980 until the morning of 2nd July, 1980 as she claimed.

The facts of the matter are simple and generally undisputed. The petitioner is a citizen of India holding passport No. K994913. She is the mother of Padmaben. In this judgment H I will refer to Padmaben as the daughter. The daughter is also a citizen of India and is included in her mother's passport. The daughter is aged fourteen years and some seven months. She was born on 23rd October, 1965.

The daughter made acquaintance with Bashirhusein whom I shall refer to as the Respondent. They decided to marry. On Friday 27th June, 1980 these two came to the Chief Kadhi seeking marriage. They told the Chief Kadhi that the daughter, who until then was a Hindu, was willing to convert to A Islamic faith. The Chief Kadhi took the necessary steps to convert her, renaming her Fatma and married them immediately.

The couple left the court for home. On their way they met the father of the daughter who took hold of her and went home with her.

On Monday 30th June, 1980 the Respondent returned to the Chief Kadhi to collect the marriage certificates. He complained about what happened and the Chief Kadhi gave the Respondent a letter to the cell leader of the daughter. The letter was summoning the cell leader, Bi Mgeni Said, to come to the court the following day, 1st July, 1980.

The Chief Kadhi gave a letter to the cell leader for the Chairman of CCM branch of Muembe Tanga. This letter had two aims. First, it was to summon the Petitioner and her husband to come to court. Second, it was authorising the cell leader to have custody of the daughter over the night and to come to court with her the following morning. On 2nd July, 1980, the Petitioner came to court. She was informed by the Chief Kadhi that the daughter had converted to Islam and had married the Respondent. The Petitioner and her husband objected. The cell leader who had been given custody of the daughter surrendered her to the court and the daughter accompanied the Respondent to their marital home.

First and foremost I have to look into the legality of this marriage. To do this I have to satisfy myself of the legality of the conversion.

The Petitioner has given three allegations. First, that the daughter is a minor hence cannot decide on herself on these matters. Second, that neither herself nor her husband were informed on this issue. Thirdly, that the daughter is a citizen of India.

I should deal with the question of citizenship first. I am satisfied that the daughter is a citizen of India and she is included in the passport of her mother, the applicant, bearing No. K994913. The question is what is the applicable law especially on these issues as marriage. This is question of conflict of laws. According to Dicey's Conflicts of Law (6th edn) at page 758 a marriage is valid when.

"(1) each of the parties has, according to the law of his or her respective domicile, the capacity to marry the other; and 

(2) any of the following conditions as to the form of celebration is complied with:

(i) if the marriage is celebrated in accordance with the local form"

(I have quoted only the parts relevant to the case before me). 

Similar views have been aired by Schitthoff in The English Conflict of Laws, 3rd ed. at page 316. He has said that according to the principles of English law the validity of a marriage depends on two conditions:

(a) (if) the incidents pertaining to the form of the marriage satisfy the 'lex celebrations' and, further, if 

(b) the incidents pertaining to the essentials of the marriage satisfy the 'lex domicili'.

The expositions of these two learned authorities have been followed with approval in a case decided here in East Africa by the Supreme Court of Kenya in 1959 in Re An Application by Barbara Simpson Howison [1959] E.A. 568.

I should state from the start that the High Court of Zanzibar is not bound by the decisions of the Supreme Court of Kenya. Nevertheless I have decided to follow this decision on two grounds. First, this is the only case I have been able to find which is similar to the case I am dealing with. Second, the decisions of the Supreme Court are of high persuasive authority especially as they were taken at a time when we had a similar court structure which incorporated the Court of Appeal of Eastern Africa and ultimately the Privy Council.

I am satisfied, therefore, that according to the decision of that case and the exposition of the two learned writers I have referred to, the applicable law in this case is that of Zanzibar and not that of India even though the Applicant and the daughter are both citizens of India. I think I do not have to elaborate on the fact that the laws of Zanzibar F include Mohammedan law on these matters of marriage. At the time of converting to Islam the daughter was fourteen years and seven months old. The question needing my determination is whether she had the capacity to decide on herself the issue of conversion from one religious faith to another. 

The relevant law in Zanzibar is the Age of Majority Decree Cap. 53. The age of majority is eighteen years. Section 2 provides that that age shall not affect:

(a) the capacity of any person to act in the following matters, namely: marriage, dower, divorce, and adoption;

(b) the religion or religious rites and usages of any class of persons in Zanzibar.

I do not think that the provisions I have quoted permit a minor to change his religious I belief without the consent of his parents. I understand these provisions to permit one already of a particular faith to perform what are required A by that faith regardless of the age. Thus for example, a Mohammedan child can fast during the month of Ramadhan even if he is under eighteen. Likewise a Mohammedan female can contract a marriage though she be under eighteen provided she is mature. However, the law recognises such a thing as age of discretion at which one could decide for oneself on such matters as religion and marriage.

As I have said the only case I have been able to find which is on all fours with the present case is Re An Application by Barbara Simpson Howison. In that case the Applicant, Mrs Howison, was a British citizen domiciled in Scotland. Her daughter, called Diane, went to Nairobi, Kenya, where she embraced the Islamic faith on 31st March, 1959 and married a Mohammedan youth called Saifuddin Taherali Patwa. 

Diane who had been a Christian was eighteen-and-a-half at the time. Mrs. Howison moved the Supreme Court of Kenya for an order that a writ of habeas corpus should issue directed to Patwa to have the body of her daughter, Diane, brought before the court. Mrs Howison argued that Diane was a minor under twenty-one.

After reviewing various authorities the Supreme Court of Kenya, judgment being delivered by Rudd, J., decided that Diane had attained the age of discretion in law.

The Court said that the age of discretion was eighteen years. That decision was made in view of the fact that the age of majority for Kenya was twenty-one. This was the same as under the laws of the United Kingdom which recognise the age of discretion to be eighteen.

In Zanzibar the age of majority is eighteen and not twenty-one. The question is what could be taken to be the age of discretion in the Isle. I have not been able to find any case that has been decided by this court or by any court in places where the age of majority is eighteen.

The decision in Re Howison's Application followed that of Agar-Ellies v Lascelles (1883), 24 Ch. D. 317 where Brett, M.R. said that the age of discretion for boys was fourteen and for girls was sixteen. As I have already said according to the English law the age of majority is twenty-one.

For lack of any authority regarding this issue I think the main consideration in fixing the age of discretion is the determination whether the daughter had capacity to fully understand what she was doing.

According to the facts of this case the daughter after making up her mind to marry the respondent approached her parents. But before that she had already told the respondent that the question of marriage between them was impossible due to the difference in their religions. She had also refused to convert to Islam when she was asked to do so by the respondent. She decided to embrace Islamic faith after quite some time had elapsed.

It is quite possible that she had decided to do so because she was pregnant with a child of the respondent and that she feared that her parents would disown her. But both her parents have assured her and before me that they would take her back if she denounced the respondent. The daughter has refused. Her parents made it clear to her that if she did not denounce the respondent and return to them they will disown her. She replied without any hesitation that she did not want to return to them and that it is alright if she is no longer their daughter and that she had already found another mother (the mother of the respondent).

I am satisfied therefore that she did not embrace Islamic faith out of fear of any eventuality. I am satisfied that she converted while comprehending the full import and the nature of her action. I am satisfied, therefore, that she has attained the age of discretion. Hence her change of faith is valid and cannot be annulled on the claim that she is a minor.

Now, I have to look into the validity of this marriage. As I have already said the marriage was solemnised in Zanzibar. In this case by the Mohammedan Law of Marriage.

The Applicant contends that she did not give her consent to this marriage as the parent of the daughter. 

Rudd, J. in the Re Howison's Application at page 573 said: 

"Now, it is also accepted by all authorities that the consent to a marriage, by a parent or a guardian, is part of the form of the marriage and is governed by the requirements of the lex loci celebrationis".

Thus this question of consent is also governed by the Mohammedan Law. The Marriage and Divorce (Muslim) Registration Decree, Cap. 91 does not mention the issue of consent. However, Section 9(2) requires the Registrar of Marriages to register a marriage after being satisfied that it was validly contracted under the Mohammedan Law. So the issue of consent has to be determined under that law. Section 22(c) has authorised forms to be devised for the implementation of the Decree. The form titled H "Registration of Marriage" made under the provisions of this decree has a place written "The signature of the parent or guardian". Thus the consent of the parent or guardian is recognised by the Decree.

The Mohammedan Law in respect of consent varies according to the schools. In this case it is appropriate that I follow the Shafei School. This court had previously decided that a judge should follow his school in deciding cases and not that of the parties. (Mbwana v D.C. Pemba 5 Z.LR. 20 at 24 and also Soud v Jokha 5 Z.L.R. 16). However, that stand has been overruled by the Court of Appeal of Eastern Africa in Salim Alawi v Seyyid Saleh Alawi Civil Appeal No. 21 of 1953 from the High Court of Zanzibar in Civil appeal No. 11 of 1952. It is the school of law of the parties that is to be followed. In the present case, however, it is fortunate that both the parties and the Chief Kadhi are Shafei.

According to the Shafei school the consent of the parent (walii) is mandatory. Minhaj-et-Talbin as translated into English by Van Den Berg and Howard at page 284 (Book 33, Chapter 1) provides: "A woman cannot give herself in marriage, even though her guardian should authorise her to do so".

In this case it is not disputed that the Applicant and her husband did not give their consent to this marriage. In fact they were completely uninformed until six days after the marriage when they were summoned and told by the Chief Kadhi. The marriage was performed on Friday and they were summoned the following Tuesday.

The only question is whether this could nullify the marriage. But before I answer that question I must ask myself a preliminary question. Who is the 'Walii' of a woman? (Who is the person who can legally give a woman in marriage?) Minhaj, at the same page I E have already quoted, provides that:

"Nor can she give in marriage another woman, even as agent of the latter's guardian; nor effect a marriage as agent for the husband". 

Thus in this case the Applicant as the mother of the daughter cannot claim to be the "Walii" (a person qualified to give her daughter in marriage). After having made that determination it was perfectly in order to refuse the application forthright. However, I feel I should pursue this question of Walii and consent a little further.

The proper Walii of a woman is her father. In this case the father did not petition. However, as he had endorsed the application of his wife as containing the truth and also as he gave his explanation before me, even though after I had summoned him, feel it proper to determine this issue of Walii and consent in respect of him also. 

The father did not give his consent. But after being satisfied, as I am, that the daughter is now properly and legally a Moslem can it then be said that the father who is a Hindu is the Walii of the daughter? A non-Moslem cannot be a Walii of a Moslem. Therefore I the father could never have been the Walii of the daughter.

Hence his consent was not necessary to validate the marriage.

According to the Mohammedan Law when there is no natural Walii the Kadhi on the behalf of the State is the Walii (Minhaj at page 286). In this case the Chief Kadhi was properly the Walii.

The Applicant has also said that the daughter was three months' pregnant at the time of the marriage. She contends that under Mohammedan Law a pregnant woman cannot contract a marriage. Such a marriage is void.

I have failed to obtain any authority in support of such contention. What I have been able to find out is that a woman cannot be married during the period of iddat. This comes about either when a woman is divorced or is a widow. One of the reasons for iddat is that a woman would not be married while she is pregnant with another man's child. In this case the daughter was not in iddat.

For the reasons I have given I refuse to nullify the marriage.

I should add that during the proceeding of this case; the daughter, in front of all, told her  parents that she is not prepared to part with the respondent and return home.

Thus even if I could legally nullify the marriage or if I have erred in refusing to nullify it, to declare it null and void is futile. I will not have the power of stopping the daughter from going to the respondent. Rudd J. said at page 572 of Re Howison's Application that:

It may fairly be assumed that if we were to release her from any alleged custody and control of the respondent she would immediately return to him of her own free will and consent unless prevented from so doing by some form of constraint. But in view of the nature of these proceedings, and of the remedy that is sought, we have no power to order her to leave the respondent or to return to the applicant, nor have we the power in these proceedings to make an order against her which would have the effect of putting her in terrorem as regards this court and its order in these proceedings.

The learned judge went further to say that:

In these circumstances, and having regard to the fact that she had undoubtedly attained the age of discretion in law, and having regard to the nature of these proceedings, we cannot see any legal justification for an order that, as far as we can judge, could only be made effective by I subjecting her to some form of physical restraint.

I concur with their lordships entirely. Briefly I would like to discuss two other things which were contained in the application.

First, there is the question of the Spinsters Protection Decree, No. 5 of 1970. I am satisfied that the daughter was pregnant when she married. I am also satisfied that the Chief Kadhi was not aware of this. I am confident that if he had known he would not have performed this marriage. I have no reason whatsoever to doubt his sincerity.

Under this Decree when such thing occurs both the man and the spinster are guilty and are to be sent to the Education Centre for five years.

This Decree has not been strictly adhered to. Under the Decree in Section 6 a Special Committee is created with the responsibility of receiving reports, conducting investigations and directing the Police to prosecute. But in practice the Committee after investigations advises the persons convened to marry. If they agree then special contract forms are filled-in and the persons get married. That then is the end of the matter. However, if the advice of the Committee goes unheeded then the issue is sent to the Police and eventually to the court. This was the explanation given to me in court by LT. Col. Anthony Musa, the Chairman of the Committee, and Ali Zamu the secretary. Thus even if this case had gone to the Committee the parties would have been advised to E marry just the same.

It is not improper to take this occasion to make my observations that this Decree is unsatisfactory. I feel that even the Committee is aware of this and that is why it is not following the Decree to the letter:- If both the man and the spinster are sent to the Education Centre for five years the one actually punished is the infant. In the first place the child will be born in the Centre. Secondly, it will be brought-up in the Centre. Thirdly, even if it should be brought-up outside the Centre by some relatives it will be denied the motherly love and care which is very crucial for any child in its first five years. Not only that but the aim of the legislation is to protect spinsters and hence its title (Spinsters Protection Decree). But when the spinsters are punished as accomplices the purpose of the legislation is defeated. The spirit of the legislation is good but I suggest that the Attorney General and the Government should review the law. 

The Applicant also wanted to know whether the cell leader, Bi Mgeni Said, was given custody of the daughter by the Chief Kadhi for the night of 1st July until the morning of 2nd July. I am satisfied that the cell-leader was given that authority by a letter from the Chief Kadhi. I should like to comment that the Chief Kadhi erred in giving such authority. I hope that this will never recur.

Finally, I should add that when I received this petition I also received a letter from the Consulate-General of India in Zanzibar. Though he did not indicate that fear, I feel I am duty bound to dispel any fear that a trend has started in the Kadhi's Courts of converting young women and offering them in marriage without consulting their parents. I am completely satisfied from these proceedings that there is no such trend and this incident B is not a beginning of such a trend. This is but a case of two youths who decided to do what they have done. This could happen any where as it did in Kenya in 1959 in the case I have already quoted.

As I am satisfied that the daughter has attained the age of discretion and that the marriage is valid under the laws of Zanzibar, I refuse the plea to annul the marriage and to order the daughter to return to the Applicant.

However, as this case is convened with Decree No. 5 of 1970 I order Bashir-husein and Fatma to go to the Secretary of the Special Committee to fill in the contract of marriage forms.

Order accordingly.

1983 TLR p329

E