(COURT OF APPEAL)*
FARIDA FOUAD NAKHLA vs. SAMEER AMEER
(AC/APP/5/1957)
Appeal.
Principles
· Jurisdiction of Civil and Sharia Courts — Copt changing religion and divorcing wife — wife’s claim to divorce.
The Civil Courts have jurisdiction to entertain an application for divorce from a woman married under the Excepted Communities procedure, even though her husband has become a Moslem and purported to divorce her in accordance with Moslem law.

Judgment

The plaintiff and respondent, who were both Christians, were married On 24.4.1955 in accordance with the Coptic Orthodox personal law. On 20.5.1956 the husband, the defendant, became a Moslem, and purported to make a declaration of divorce in accordance with Moslem law. The wife applied to the Civil Courts for a decree of dissolution of the marriage. The Province Judge, Khartoum held that he had no jurisdiction and that the only competent Court was the Sharia Court.
Advocates: Labib Sorial……….. for appellant.
Abdin Ismail…………………… for respondent.
M.A. Abu Rannat C.J. stated the facts and continued
The question at issue before us is whether the Civil Court has jurisdiction. The learned Province Judge decided that under proviso
(a) to sec. 12 of the Non-Mohammedan Marriage Ordinance, 19261 the Court of competent jurisdiction is the Sharia Court.
(*) Court MA. Abu Rannat, C .j.; MI. el Nur arid M .A. Hassib JJ.
(1) Sec. 12 of the Non-Mohammedan Marriage Ordinance, so far as relevant is as follows :
Every marriage validly celebrated under this ordinance or any of the ordinances hereby repealed and every marriage made valid by any of the ordinances hereby repealed or by the Marriages Validation Ordinance 1 916, shall continue and subsist until one of the parties thereto shall die or until it shall be dissolved by a decree of nullity or of divorce pronounced by a Court of competent jurisdiction.
At the Court of Appeal the learned advocate for the appellant submits that the marriage was contracted by members of an Excepted Community and that under sec. 5 of the Non-Mohammedan Marriage Ordinance2 the Ordinance does not apply to this particular case. He further submits that under sec. 38 of the Civil Justice3 Ordinance and sec. 6 of the Sudan Mohammedan Law Courts Ordinance4 the Sharia Courts have no jurisdiction, and that under sec. 33 of the Civil Justice Ordinance5 the only court which has jurisdiction is the Civil High Court.

So long as such marriage subsists neither party shall be competent to contract a second marriage whether under this ordinance or otherwise.
Provided always that if the husband becomes an adherent of the Mohammedan faith and by reason of such adherence his personal status comes to be governed by the Mohammedan Religious Law.
a) such marriage shall continue to subsist but may be dissolved in accordance with the Mohammedan Religious Law.
(2) Sec. of the Non-Mohammedan Marriage Ordinance is the section which authoresses marriage under the excepted communities procedure. Ed.
(3) Sec. 38 of the C.J.O. is as follows
Civil Courts shall not be competent to decide, in a suit to which all parties are Mohammedans, except with the consent of all the parties, any questions regarding succession, inheritance, wills, legacies, gifts, marriage, divorce, family relations, or the constitution of wakfs.
(4) Sec. 6 of the Sudan Mohammedan Law Courts Ordinance, so far as relevant, is as follows
The Sudan Mohammedan Law Courts shall be competent to decide —
a) Any question regarding marriage, divorce, guardianship of minors or family relationship, provided that the marriage to which the question related was concluded in accordance with Mohammedan Law or the parties are all Mohammedans.
c) Any question other than those mentioned in the last two sub-sections provided that all the parties, whether being Mohammedans or not, make a formal demand, signed by them asking the Court to entertain the question and stating that they agree to be bound by the ruling of Mohammedan Law.
(5) Sec. of the C.J.O. is as follows:
The original jurisdiction of the High Court shall be exercised by its Judges sitting singly, and, save as otherwise provided by this or any other ordinance for the time being in force, the High Court shall have jurisdiction throughout the Sudan to hear and determine all suits.
Note also sec. 4 (3) of the C.J.O.: “Court” means a Civil Court except where other wise expressly stated.”
As we see it this appeal must be allowed. In the first place, the Non-Mohammedan Marriage Ordinance does not apply to this particular case, since the parties belonged to an excepted community, as is published in Part 1 of the Second Schedule of the Non-Mohammedan Marriage Ordinance. Secondly, sec. 38 of the civil Justice Ordinance only excludes the jurisdiction of the Civil Courts if all the parties to the suit are Mohammedans.
In this case the wife is not a Mohammedan and she did not give the consent necessary to give the Sharia Court jurisdiction. Sec. 6 of the Sudan Mohammedan Law Courts Ordinance gives the Sudan Mohammedan Law Courts jurisdiction in questions of marriage or divorce, if the marriage was concluded in accordance with the Mohammedan law, or if all the parties are Mohammedans, or if all the parties, whether Mohammedans or not make a formal demand signed by them, asking the Sharia Court to entertain the question, and stating that they agree to be bound by the ruling of Mohammedan law. In this case the marriage was not contracted in accordance with Mohammedan law, and the wife is not a Mohammedan, and no formal demand was made by her asking for the Sharia Court to decide this question of divorce. It is clear from this that the Sharia Court has no jurisdiction, and that the only Court which has jurisdiction is the Civil Court.
We therefore order that the decree of the Province Judge, Khartoum, dated 27.2.1957 be set aside and a declaration made that the competent court in this case is the Civil Court. No order is made as to costs.
M.I. el Nur, J. — I concur.
M.A. Hassib, J. — I concur.
Appeal allowed