[1940] EACA 46

## ORIGINAL CIVIL

## Before THACKER. J.

IN THE MATTER OF a Notice of Marriage dated 15th September, 1941, given by Fanuel Lemama to the Registrar of Marriage of the Mombasa District of the Colony of Kenya of his intended marriage with Amina binti Hamisi

$and$

IN THE MATTER OF a Caveat entered by Rashid Warshow against the issue of the Registrar's Certificate to the aforesaid parties.

## Miscellaneous Cause No. 1 of 1941

Marriage-Native Christian male and minor Mohamedan female-Marriage Ordinance, Cap. 167—Caveat by guardian.

A native Christian male gave notice under the Marriage Ordinance, Cap. 167, of his intended marriage with a minor Mohamedan girl aged 15 years and upwards. The girl's father was dead and her mother gave her written consent to the marriage. A caveat was entered by the girl's uncle against the intended marriage on the ground that his consent as her uncle was required to the marriage.

Held (1-11-41).—(1) That as the marriage contemplated was one according to the Marriage Ordinance Mohamedan Law did not apply.

(2) That there is nothing in the provisions of the Marriage Ordinance (Cap. 167) which forbids a marriage under its provisions between a Christian and a Mohamedan.

(3) That the consent of the uncle, although he would appear to be the girl's. guardian by Mohamedan Law, was not necessary to the marriage.

## Parties in person.

JUDGMENT.—This dispute comes before this Court by virtue of sections 15, 16 and 17 of the Marriage Ordinance, Cap. 167, Laws of Kenya. The facts are as follows: -

Fanuel Lemama, a native Christian, gave notice dated 15th September, 1941, of his intended marriage with Amina binti Hamisi. She is a Mohamedan. aged 15 years and upwards. A caveat was entered by the girl's uncle, Rashid Warshow, against the intended marriage on the ground that the girl was a Mohamedan and that his consent as her uncle was required to the marriage. The girl's mother has given in writing her consent to the marriage. The girl's father is dead. The uncle is 19 years old. The Mohamedan parties are of the Hanafi sect. The caveator and Fanuel Lemama both gave evidence—the girl refused to take any oath and so gave no evidence.

The question before this Court is whether or not there is any just cause shown why this marriage should not take place.

There is nothing in the provisions of the Marriage Ordinance, Cap. 167, which forbids a marriage under its provisions between a Christian and a Mohamedan indeed I can find no limitations as to race or creed imposed upon anyone whowishes to avail him or herself of the provisions of the Ordinance.

It seems to be clear from all the authorities that a Mohamedan woman, according to Mohamedan Law, cannot contract a valid marriage except with a Mohamedan. Paragraph 200 (2) of Mulla's Principles of Mohamedan Law (6th Ed.) reads as follows: -

"A Mohamedan wcman cannot contract a valid marriage except with a Mohamedan, But if she does marry a non-Mohamedan, whether he be a

Kitabi (that is, a Christian or a Jew) or a non-Kitabi (that is, an idolater or a fire worshipper), the marriage is not void (batil), but merely invalid (fasid)."

However that may be, it is not Mohamedan Law which applies to this case even though one of the parties to the marriage is a Mohamedan. It is the Marriage Ordinance, Cap. 167, which applies and there is nothing in that Ordinance which forbids such a marriage as is now contemplated.

Incidentally, such a marriage as is now contemplated may be contracted in India according to the provisions of the Indian Christian Marriage Act of 1872 and it would be a valid marriage, in spite of the Mohamedan Law otherwise. That such a marriage as is now contemplated is valid by the Law of England is demonstrated clearly by the case of The King v. The Superintendent Registrar of Marriages. Hammersmith, 1917, 1 K. B. D. 634, which was a case of a Mohamedan male being married to a Christian woman. It is true that in the case before me it is a matter of a Christian male and a Mohamedan female, but I can see by English Law no difference in the two sets of circumstances, although it is true that by Mohamedan Law a Mohamedan male can contract a valid marriage with a Christian female, whereas a Mohamedan female cannot contract a valid marriage with a Christian male. The only question before me is which law applies, the Marriage Ordinance, Cap. 167, or Mohamedan Law?

The marriage contemplated cannot be described as a Mohamedan marriage, for the reason that one of the parties is not a Mohamedan, nor is a Mohamedan marriage contemplated. The marriage contemplated is one according to the Marriage Ordinance.

Clearly in my judgment Mohamedan Law has nothing to do with this case, which must be decided only by reference to the provisions of the Marriage Ordinance. The latter Ordinance provides by section 19 for the consent where either party is a minor of the father, or if he be dead, of the mother being obtained. That provision has been complied with.

By Mohamedan Law the caveator, the girl's uncle, would appear to be the girl's guardian, but I cannot see that he has any right, even by Mohamedan Law, to insist on his consent being granted before the marriage could take place. The. girl is over 15 and quite obviously has attained puberty and even by Mohamedan Law, having attained puberty, she may enter into a contract of marriage without anyone's consent and may marry anyone whom she pleases. The Indian Majority Act, 1875, which raised the age of majority to 18, and is applied to this Colony and Protectorate, does not apply to matters of marriage (S.2). Puberty, it may be mentioned, is presumed, in the absence of evidence, on completion of the age of 15 years—(see Mulla, 6th Ed., p. 161, para. 195, Chapter XIV). In any case, however, it is the consent of the father, and if he is dead, of the mother which is requisite by section 19 of the Marriage Ordinance.

The union of these two persons may not be recognized by Mohamedan Law as valid or as a Mohamedan marriage, but its validity is to be determined by the law of the non-Mohamedan party-(see p. 141 Sir R. K. Wilson's Introduction to the Study of Anglo-Mohamedan Law).

I am unable to find any just cause why this marriage should not take place and I therefore order that the caveat be removed and I shall cancel the word forbidden in the Marriage Notice Book, which is ordered to be returned to the Registrar.