Kulthum Ally Kara v. Yassin Osman, Misc. Civ. Cause 32-D-68, 14/6/68, Georges C. J.

Kulthum Ally Kara v. Yassin Osman, Misc. Civ. Cause 32-D-68, 14/6/68, Georges C. J.

Applicant, a divorced Muslim wife, applied for custody of their children in District Court. The Senior Resident Magistrate ruled that Islamic Law was applicable and that, therefore, the case must begin in Primary Court. Applicant then applied for a High Court order that the case proceed in District Court.

            Held: (1) Under section 57(1) of the Magistrates Courts Act, proceedings “in respect of marriage, guardianship or inheritance under customary law, or the incidents thereof “ must ordinarily begin in Primary court, unless the High Court grants leave for their commencement in some other court. However, this section does not apply to this case, since the law involved is Islamic law, which is not included within the term customary law.”(2) The Primary Court’s jurisdiction over civil proceedings under Islamic law is not exclusive; the concurrent jurisdiction of the District Court is secured by sections 36 and 35 (2) of the Act. (3) Section 13 of the Civil Procedure Code 1966 requires all suits to be instituted “in the court of the lowest grade competent to try it”; but section 57 provides that section 13 shall not be read to require any proceedings of a civil nature to be commenced in Primary Court. “It would appear, therefore, that once a District Court has jurisdiction and prior permission is not required under section 57, a party can file an action in the District Court if he so chooses, even though the Primary Court would also have  had jurisdiction ….” Ordered that action be remitted to District Court.