Mariambai Rajali and John P. Curtis, Matr. Cause 5-D-66, 23/2/68, Biron J.

Mariambai Rajali and John P. Curtis, Matr. Cause 5-D-66, 23/2/68, Biron J.

The parties are Mustims, and were divorced under Islamic law before the Primary Court of Lindi. Petitioner now is claiming maintenance  (kohr)                           due to her during the subsistence of her marriage to respondent. Petitioner is an Asian, but not respondent. The Magistrates’ Courts act, section 14 (1) provides that primary courts have jurisdiction over all proceedings of a civil nature where Islamic law is applicable but then certain exceptions are set out, among them disputes “(b) in which Islamic law is applicable by virtue of the provisions of the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance”, in which instance jurisdiction is expressly conferred on, and therefore limited to, the High Court.

            Held: (1) The jurisdiction of the Primary Court to grant a divorce in this case was at best doubtful. The parties cannot confer jurisdiction on the Primary Court merely by appearing before, it. (2) However, the practical position cannot be ignored; the parties have in fact been divorced by the Primary Court. The parties, or either of them may have remarried and begotten children. To interfere with the divorce would meant to bastardise the children, if any, of petitioner. (The remarriage of respondent would not have this effect, as he is permitted polygamous unions.) The parties are of limited resources, and thus might be unable to appear before the High Court. The divorce was upheld. (3) This petition for maintenance, being ancillary to the divorce proceedings, was transferred to the Lindi Primary Court for hearing under the Magistrates’ Courts Act, section 42.