Amiri Awadhi v. Ahmed Ghoth, Civil Appeal 65 of 1980

AMIRI AWADHI v. AHMED GHOTH

[HIGH COURT OF TANZANIA AT DODOMA, (Lugakingira. J;)l

CIVIL APPEAL 65 OF 1980

Constructlon-Mahr-Whether different from customary mahari or bride wealth  

Construction-Jahari or Jihazl-Its meaning.

family law jahazi -Whether refundable after dissolution of marriage- No provision in the Law of Marriage Act, 1971-Islamic rules applicable -factors to be considered in refund.

The appellant and respondent were in-laws. The appellant had been married to the respondent's daughter and the. marriage was judicially dissolved at the instance of the wife. Then the appellant sued in the Primary Court for recover of Jahazi of shs. 5,000/- and gharama of shs. 3,000/-. The claim of gharama was rejected but he was awarded Jahazi on the ground that the divorce was on act of the court. The respondent appealed to the District Court and his appeal was allowed on the ground that there was no evidence of payment of jahazi and even if there was evidence of payment of jahazi it was still unrefundable since the appellant was adjudged the guilty party. The appellant was dissatisfied hence this appeal.  

 Held: (i) Mahr is a settlement in money or other propert by a husband to his wife under Islamic Law and it is different from the customary mahari or bride wealth; 

(ii) Jahazi (or jihaz in Arabic) is the bride's outfit, furniture, crockery, perfumes, etc., bought by the bride's father from money supplied by the groom.

(iii) Jahazi is refundable following the dissolution of a marriage under Islamic rules which have not been superseded by the Law of Marriage Act, 1971 as it does

not deal specifically with the issue.

(iv) Jahazi is not refundable where it has been established that the husband is a guilty party.

Appeal dismissed.

No cases referred to:

F. S. Chambakare for the Appellant.

November 26, 1980. LUGAKINGIRA, J.: The parties to this case, both Arab Muslims, had been in·laws. The appellant had been married to the respondent's daughter and the marriage was judicially dissolv.ed at the instance of the wife.

Following the dissolution, the appellant sued in the Urban Primary Court, Dodoma to recover jahazi of shs. 5,000/· and gharama of shs. 3,000/- which he claimed to have incurred in connection with the wedding. The oourt rejected the claim for gharama for lack of evidence but it,. Awarded the appellant half the jahazi on the ground that the divorce had been an act of the court. 

The respondent was not satisfied and appealed to the district court. He was denying, as he still does, any knowledge of the jahazi. He was also complaining  that the appellant had altered his claim from one of mahr to jahazi. The appellate Senior District Magistrate agreed with the respondent in these matters. He found that the jahazi had not been paid and that the appellant had been inconsistent in his claim. He therefore allowed the respondent's appeal. He observed, on the other hand, that even if there were evidence of payment of jahazi. if would still be un refundable since the appellant was adjudged the guilty .party in the divorce proceedings. The appellant appealed here through learned counsel Mr. Cham bakare. Apart from remarking that th! Senior District Magistrate had misdirected himself on the proceedings before the trial court, Mr. Chambakare argued before me that the Senior District Magistrate erred in disregarding the opinion of the assessor on the refund to Jahazi.

I think I should first clear the air on the proceedings before the primary court. On 9/8/79 the appellant filed a plaint claiming shs. 5,000/- "Za mahari" and shs. 3,000/· "za gharama". Then on 21·/8/79, and with the permission of the court, he filed an amended plaint in which he claimed shs. 5,000/- "ikiwa ni jahazi" and shs. 3,000/- "za gharama". It seems that he paid fresh or additional fees for the new plaint On these facts,- I do not think that the respondent can rightly complain about the procedure followed. I find it to have been in order. The Senior District Magistrate also misdirected himself in thinking that the appellant had been in consistent. If the appellant had altered the nature of his claim in the court of the evidence, that would have merited the adverse comments which were made, but not otherwise.

I will next turn to the issue of terminology. There is in Islamic Law what is termed mahr, but which is different from the customary mahari or bride wealth. The mahr is a settlement in money or other property by a husband to his wife. It may be specified, termed al-mahru'l - musamma, and payable immediately or deferred. It may also be unspecified, termed mahru '/ - mithl. This case did not concern mahr. There is then what is called jallazi (Arabic: jihaz). This it the bride's outfit; furniture, crockery, perfumes, etc., bought by the bride's father from money supplied by the groom. In this case the appellant claimed that he supplied shs. 5,000/- for this purpose. The appellant also claimed to have incurred general expenses- gharama. 'He said that he bought rice, meat, condiments, etc., which, were used to entertain guests at the respondent's home on the eve or on the day of the wedding. It is these which he valued at shs. 3,000/ -. As we have seen, the trial court rejected this latter claim for want of evidence and the appellant hag never sought to pursue the matter. In "'his appeal we are therefore concerned with jahazi only.

At the outset, I would respectfully disagree with the senior district magistrate in his finding that jahazi was not paid. The appellant called two witnesses who confirmed that he paid shs. 5,000 / - to the respondent. I do no} think that these witnesses had any reason to lie although they were said to be relatives of the appellant. Then in his own judgment· the senior magistrate conceded that in the divorce proceedings, the respondent's daughter was awarded her personal effects which included items I have stated above. I therefore, think that on a balance of probabilities the appellant had proved payment of jallazi. What is important in this appeal is wheth~r jahazi is refundable following' the dissolution of a marriage.

The trial magistrate put the question to the assessor who merely said: "Kwa vile mahakama ndiyo ilitoa talaka basi jahazi liwe nusu bin nusu". I will at once say, with respect that this opinion, which the trial magistrate adopted, does not appear to be founded on any law, Islamic or otherwise. The assessor seems to blame the divorce on the court. I was of the view that he erred in adopting that attitude and I had to consider the law applicable. I first turned to the Law of Marriage Act of 1971 to ascertain whether this subject was not dealt with thereunder. I was satisfied that it was not. Section 69 of the Act deals with the right to damages for breach of a promise of marriage, which is a different thing. Then s. 71 deals with the return of gifts made in contemplation of a marriage which has not been contracted and which, again, is a different thing. There is' thus no provision in the Act dealing specifically with the return of anything subsequent to divorce. For this reason, I am of the opinion that Islamic rules have not been superseded on this subject and continue to be applicable.

Unfortunately, it is not easy to put a finger on these rules. It seems to me that there are variations among the different schools of Islamic Law and even within a particular school. For all I could gather, jahazi is the Islamicised customary bride wealth and its antecedents have local or tribal characteristics. We may start with the views expressed at the trial. The appellant said: "Mimi nikiacha mke vitu (jahazi) halirudi. Nikiachwa au mume akiachwa vinarudi akitaka. Mimi ninataka". His witness P.W. 2 also said: "Mume akimwacha mke jahazi harudishi (sid, Mke akimkataa mume aw~a kudai (khuu) mali - inawezekana thamani ya khuu ikiwa ni lile jahazi au chini yake". It appears from ttiese statements that the issue of guilt is a relevant factor. It would be safe to say even at this stage that when the husband divorced his wife by the old talak he was deemed to be the guilty party and could not be refunded thejahazi. The opposite was true when the wife left her husband. In East Africa and the Southern Arabian Peninsula the predominant school is that of the Shafiis. I believe that the parties to this case subscribe to this school. Speaking of the then Aden Protectorate which comes under this school, Professor Anderson says:

The dower (mahr. sadaq) named at the actual contract of marriage is always small ... But a considerably larger sum, usually termed daf but identifted by some jurists with the bride's jihaz. is also provided by the bridegroom ... It is this payment which represents the bride wealth of pre Islamic Arabia and elsewhere", and part may be recovered if the bride runs away from her husband early in married life ... (J. N. D. Anderson: Islamic Law in A/rica. 2nd Edn., p.20).

The learned author goes on to reveal at p.29. that:- 

Bride-price (dar) is paid to the father who frequently spends it all. or even more, on the jihaz (trousseau, furniture, etc.>: but it is not legally obligatory on a father to provide Jihaz at all and he may instead put all the daf in his own pocket.

He further explains that the jihaz is the equivalent of the yarad of the Somalis in the then British Somaliland and continues, at p. 46.

If the girl refuses marriage after her father has betrothed her and received p~ of the yarad, this may be reclaimed in the subordinate courts. If, however, she runs away from her husband soon after matriage and refuses to return, the repayment of part of the yarad is considered a gentlemanly act. but cannot normally be enfoJced in the courts. (He then adds in a footnote): "Unless the parent or guardian concerned supports her. when return of yarad is apparently regarded as automatic and even enforceable".

Professor Anderson also says that among the ~~unchi of Northern Nigeria who subscribe to the Maliki School, nothing whatsoever is refundable where the husband is gravely at fault.

I think that these instances are sufficient as a guide. In all of them a concept prevails that lahazi is not refundable where the husband is the guilty party. The appellant appears to admit this when he said "Mimi nikiacha mke vitu (jaha::;) halirudi". But in this country the question of the husband divorcing the wife and vice versa does not arise. Apart from death, all marriages can only be dissolved by a court decree. Thus, who is or who is not the guilty party does not depend on who initiated the divorce proceedings. It is all a matter of evidence. It was therefore unfortunate for the assessor to feel his hands tied by reasons of the fact that the marriage was dissolved by the court. That did not excuse the wrongs which any party to the divorce proceedings might have been guilty of. The court did' not follow or invite anybody to litigate. It never does so. Besides, judicial dissolutions are not unknown in Islamic Law. There are in other countries, as there was in this country I dissolutions by Jaskh (sometimes rendered Jaksh) under which a Muslim Kadhi has power to dissolve a marriage on the application of a wife.' For all intents and purposes this is a judicial dissolution. Asaf Fyzee, in Outlines of Muhammadan Law, says that this procedure is founded on Verses 34- 35 of the Fourth Chapter of the Koran. Yet this procedure does not appear to affect the legitimate rights of any party subsequent to divorce. I am therefore of the view that even w here there is dissolution by a court, the refund of jahazi would still be considered in the light of the evidence, regard being had of where guilt lies.

It was found by the trial court, and it has never been disputed, that the appellant was the guilty party in the divo\ce proceedings. In that event he is not entitled to the refund of jahazi. I therefore uphold the decision of the district court and dismiss the appeal with costs.

Appeal dismissed.