El Haji Salum Mbogorowe v. Asumini d/o Ngobesi, (PC) Civ. App. 82-M-68, 11/6/68, Seaton J.

El Haji Salum Mbogorowe v. Asumini d/o Ngobesi, (PC) Civ. App. 82-M-68, 11/6/68, Seaton J.

Plaintiff was married to the son of defendant for twelve years. She bore eight children during their marriage. She left her husband in 1967 and was prevented from marrying another man by the defendant. She sued him for this in Primary Court. She there claimed that her children were not her husband’s he being impotent, and that the true father had been his brother. When she left him, she had given defendant one cow, of the previously paid dowry of one cow and Shs. 200/-, and had taken her one-year-old son with her. The Primary Court dissolved the marriage, ordering that the dower should be returned in full. Finding that the child was in fact the child of plaintiff on condition that they live at her home. She then made repeated attempts to take the child to the home of her lover, and the court ordered the child placed in the custody of defendant, to force plaintiff to live with her son there, the son to be given to her husband if she refused. The District Court held that the child had been born out of wedlock, and that there had been a khula divorce, so that defendant and his son had no claim to her or to the child. Defendant now argues, inter alia, that the khula divorce was not effective because the dowry was not fully returned.

            Held: (1) Under Muslim law, a khula divorce is obtainable “at the initiative of the wife.” The two parties, or their agents, speak or write appropriate words, the wife offering and the husband accepting compensation out of her property for the release of his marital rights. The “dissolution of the marriage is not contingent on the payment of the consideration.” (2) Defendant “had throughout been acting as (his son’s) agent and …..the divorce which was accomplished through the intervention of the court” was a proper khula divorce. [Citing Suddan v. Faiz Baksh, 1 Lahore 402; Bazul ul Raheem v. Luteefut con nissa, 8 M.L.A. 396; Fitzgerald, Mohamedan Law (1931) 78, 79; Tybji,Principles of Mohamedan Law (2^nd ed. 1919 s. 181; Wilson, Anglo-Mohamedan Law(1930) s. 70]. The remaining dowry may be recovered from plaintiff or her father as a civil debt. (3) According to the cited authorities, “a child born after six lunar months from the date of the marriage is conclusively legitimate.” The husband’s alleged impotence “might be grounds for a judicial divorce, but could not rebut the presumption that the children born during ….. wedlock …… were his.” (4) The Primary Court’s order, as it relates to paternity and custody, is restored. It comports with Muslim Law principles, under which the mother should have custody of a male child under seven if that is consistent with the “paramount consideration”, of the child’s welfare.