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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V16) 1 CLR 1
1938 December 8
[CREAN, C.J., AND FUAD, J.]
MUSTAFA MEHMED ALI,
Applicant-Appellant,
v.
EMINE HASSAN,
Respondent.
(Civil Appeal No. 3629).
QUESTION OF THE CUSTODY OF A CHILD OF A MARRIAGE DISSOLVED IN,ACCORDANCE WITH THE MOSLEM LAW-COMPETENT COURT EMPOWERED BY CLAUSE 17 OF THE CYPRUS COURTS OF JUSTICE ORDER, 1927, AND BY SECTION 50 OF THE COURTS OF JUSTICE LAW, 1935, TO HEAR AN APPLICATION IN THIS RESPECT-THE GUARDIANSHIP OP INFANTS AND PRODIGALS LAW, 1935.
The Appellant was the husband of the Respondent whom he divorced in accordance with Moslem Law; the Respondent, the wife, keeping the child. He applied to the District Court of Nicosia (Application No. 42/38) for the custody of his child, and the District Court dismissed the application on the grounds that it had no jurisdiction to grant such an application, and ruled that the only proper and competent Court to make such an order was the Sheri Court. From this decision of the District Court the Appellant appealed.
HELD: (1) That the District Court was right to dismiss the application, as, the matter being a "religious matter" resulting from a divorce between persons of the Mussulman faith, the only proper and competent Court to hear such an application was the Sheri Court.
(2) That the scope of enacting the Guardianship of Infants and Prodigals Law, 1935, was not to interfere with the exclusive jurisdiction of the Sheri Courts in relation to the custody of the children of a marriage contracted and dissolved in accordance with Moslem Law, but to protect the person and property of an infant or a prodigal in certain circumstances.
St. Evangelides for the Appellant:
The District Judge grounded his order on the objects and reasons of Law 32 of 1935, which he was not entitled to do. By section 6 of the above law the father is the lawful guardian of an infant's person and property and should, therefore, have custody thereof. This law supersedes all other statutes in relation to the custody of children.
Kathijiotis for the Respondent.
Section 11 of Law 32 of 1935 only applies where the parties are living together and not where a separation order has been made. As this is a case of divorce under Moslem Law the Sheri Court has exclusive jurisdiction. Clause 17 of the Cyprus Courts of Justice Order-in-Council, 1927, gave exclusive jurisdiction to Sheri Courts. Law 32 of 1935 must be interpreted as providing for the appointment of a guardian in certain circumstances. It does not take away the exclusive jurisdiction, of the Sheri Courts with regard to custody of children after divorce.
Judgment of the Court was delivered by the Chief Justice.
Judgment: CREAN, C.J.: This is an appeal from an order of the District Court of Nicosia dismissing an application made under the Guardianship of Infants and Prodigals Law, 1935.
The application was made to the District Court under sections 6 and 11 of the above law for the custody of a child, and the District Judge dismissed it on the ground that the District Court had no jurisdiction to grant such an application. It was ruled by the District Judge that the only proper and competent Court to make such an order was the Sheri Court.
The facts before the District Court were that the Appellant herein was the husband of the Respondent whom he divorced in accordance with Moslem Law, the Respondent, the wife, keeping the child.
It is argued by counsel for the Appellant that as the words of Law 32 of 1935 are clear and unambiguous and as section 6 thereof says that the lawful father of an infant shall be the guardian of the infant's person and property, then, taking these words in their ordinary meaning, the father, the Appellant herein, is entitled to the custody of this child and cught to succeed in this appeal.
But before deciding this case one has to look at the Courts of Justice Order-in-Council, 1927, and particularly at section 17 thereof where it is set out as follows:-
"17.-(1) From the time of this Order coming into operation the "jurisdiction of the Mussulman religious tribunals known as Mahkeme"i-Sherié shall be restricted to the cognizance of religious matters as "hereinafter mentioned concerning persons of the Mussulman faith, "except so far as regards matters actually pending therein at that "time and except so far as no other provision is made by Cyprus "Statute Law for the administration of Infants' Estates concerning "persons of the Mussulman faith.
"For the purposes of this clause the expression 'religious matters' "shall mean and be restricted to the following matters and no others "concerning persons of the Mussulman faith:-
"(a) Marriage;
"(b) Divorce;
"(c) Maintenance in relation to Marriage and Divorce;
"(d) Inheritance and succession;
"(e) Wills (vessiyet) including registration thereof;
"(f) The registration of vakfiehs."
And one has also to look at section 50 of the Courts of Justice Law, 1935, where it is enacted that, save as provided, nothing in this Law shall confer upon any Court by this law established any jurisdiction to hear and determine any matrimonial cause where either party is of the Moslem faith and the marriage has been contracted in accordance with the Moslem Sacred Law.
In this law of 1935. the definition of "matrimonial cause" includes any action for divorce or judicial separation, and as the Appellant in his affidavit grounding his application admits that he was divorced in accordance with the Moslem Law, then this matter according to the Courts of Justice Law, 1935, was one exclusively within the jurisdiction of the Sheri Court.
It was submitted by Mr. Evangelides that the learned District Judge looked at the objects and reasons for the passing of Law 32 of 1935- The Guardianship of Infants and Prodigals Law- which he was not entitled to do, and that, if he had not done so, he could not have ruled that the application did not come under the above Law- 32 of 1935.
I am unable to agree with this argument; for, it seems to me that on a reading of the whole of Law 32 of 1935 it appears clear that there was no intention to intrude upon the exclusive jurisdiction of the Divorce Court as to the custody of the children of a marriage, which should be the subject of Divorce Court proceedings. And that it would be doing a certain amount of violence to the wording of section 6 of this Law to extend its meaning so that it would include question of the custody of a child of a Moslem who has divorced his wife in accordance with
As I read the Guardianship of Infants and Prodigals Law, 1935, it was enacted for the purpose of protecting the person and property of an infant or a prodigal in certain circumstances. But, it is clear to me, it was not intended by its enactment to interfere with the exclusive jurisdiction of the Divorce Court in relation to the custody of the children of a marriage.
And as there are no express words in this Law- 32 of 1935- making away the exclusive jurisdiction of the Sheri Court in divorce matters, I think the learned District Judge was right when he refused to hear this application for the custody of a child of the marriage which had been the subject of a divorce in accordance with Moslem Law.
FUAD, J.: I concur.
Appeal dismissed with costs.