Kakar v Kumari (Divorce Cause No. 16 of 1942) [1955] EACA 362 (1 January 1955)

DIVORCE JURISDICTION

BEFORE LUCIE-SMITH, J.

MADAN LALL KAKAR, Petitioner

ν.

NIRMAL KUMARI, Respondent

Divorce Cause No. 16 of 1942

Ordinance—Restitution of Conjugal Rights—Hindu Matrimonial Causes Council. $1921 -$ Marriage—Polygamous Marriage—Kenya Order in Jurisdiction.

Held (10-2-43).—That a Hindu marriage not being monogamous the Matrimonial Causes Ordinance does not apply thereto.

Held further that Art. 4 (1) of the Kenya Order in Council does not confer jurisdiction.<br>C. C. No. 50/38 (Mombasa) Chunilal v. Chunilal approved. Gulam v. Gulam 6 E. A. L. R. 119 referred to.

Mangat for petitioner.

Shah for respondent.

JUDGMENT.—This matter comes before the Court on a petition for Restitution of Conjugal Rights under Section 19 of the Matrimonial Causes Ordinance No. 33 of 1939.

The petitioner and respondent are Hindus and were married in India in the Arya Samaj at Ferozepur according to Hindu Law.

It is admitted by both advocates that a Hindu marriage is not a union of one man and one woman for life to the exclusion of all others. Had I any doubts as to whether a Hindu marriage was monogamous or polygamous they would be completely removed by the statement to be found in Mulla's Principles of Hindu Law (8th Edition) page 498 (Section 430) where he says: "A Hindu may marry any number of wives, although he has a wife or wives living".

In these conditions it is contended on behalf of the respondent that this Court has no jurisdiction to order the relief asked for and Mr. Shah has quoted a number of cases in support of his contention, the latest, in point of date, being Civil Case No. 50 of 1938, Soni Chunilal Mamiya v. Manibai Chunilal, in which case the previous authorities are reviewed.

Mr. Mangat submits that section 19 of the Matrimonial Causes Ordinance is of general application and is not limited to monogamous marriages. He further relies on Article 4 (1) of the Kenya Order in Council, 1921.

As regards the general applicability of Section 19 it appears to me that by reason of the definition of the word "marriage" contained in Section 2 of the Ordinance the words "husband" and "wife" used in Section 19 must refer to a husband and wife who have entered into a monogamous marriage.

As regards Article 4 (1) of the Order in Council it appears to me that the words "with full jurisdiction" must be read as meaning with full jurisdiction to administer any law in force.

While in general agreement with the judgment of my learned brother Hayden in Civil Case No. 50 of 1938 I would respectfully suggest that the last six words of the headnote to Gulam Mohamed v. Gulam Fatima 6 E. A. L. R. 119 should read: "who is a party to a marriage which is or, by the personal religious law of the parties, may be polygamous".

I am satisfied that in the present state of our law in Kenya this Court has no jurisdiction to order restitution of conjugal rights as regards parties married according to Hindu Law.

It is to be noted that we have a Mohammedan Marriage Divorce and Succession Ordinance and it is for the Legislature to consider whether similar legislation should not be enacted in respect of Hindus.

The petition is dismissed with costs.