Family law-c-Separation proceedings-Both parties members of the Armenian
Catholic Church-Choice of law-Cannon law-Rule of Creek Church

Jurisdiction-Separation proceedings

Personal law-Definition-Persons domiciled in foreign countries-Persons
domiciled in Sudan-Law of the religious community to which a Sudanese
domiciliary belongs

Words and phrases-"Personal law"

1. The courts of the Sudan may entertain suits for judicial separa-
tion and alimony.

2. The "custom applicable to the parties" referred to in section 5 (a).

Civil Justice Ordinance 1929, is the personal law of the parties. When the

•. Court: Owen CJ., Halford and Gorman J1.

parties are domiciled in a foreign country possessing a national law of per-
sonal status, such law is to be regarded as a body of customs within the
meaning of the section. When the parties are domiciled in the Sudan, or
in a country with no national law of personal s:atus, it is the customs of
the religious community to which they belong which comprise their personal
law.

3. The custom of the religious community to which regard must be
paid is the universal and characteristic custom of the church concerned. and
not any code or custom which it may have been compelled to adopt in a
particular locality at particular times. Therefore, in ihe case of such com-
munities of the Catholic Church as the Syrian or the Greek Catholics, the ap-
propriate body of customs is not the Moslem code which they may have
been obliged at some time to adopt, but, failing any special Syrian or Greek
Catholic customs, the canon law of the Catholic Church.

4. Cannon law will permit a temporary separation on the grounds of
incompatibility of temperament.

Civil Justice Ordinance, s. 5.

Appeal

1934. Gorman J.: This is an appeal from a decree of the District
Judge, EI Obeid, on the respondent's petition for judicial separation
and alimony, in which the judge made an order for judicial separation
and payment by the appellant of £E.6 per month alimony. The ap-
pellant has appealed and in the course of the appeal four points
emerged:

1. Have the courts of the Sudan any jurisdiction to make a decree
ordering judicial separation and awarding alimony?

1. If so, what law is to be applied in a. suit for such a decree?
2. Has the court found sufficient facts to warrant, on applying the
   proper law, the making of such a decree?

4. If so, what should be the form of the decree?

1. It was argued that, because in the Civil Justice Ordinance
there is no jurisdiction expressly given to the court to make a decree
for judicial separation, therefore the court has no such jurisdiction. In
particular, our attention was called to section 5 of the Ordinance, and
it was argued that, while the matters enumerated in this section, includ-
ing divorce and family relations, may undoubtedly be considered in
certain suits, the inference to be drawn from the language of the sec-
tion is that these matters can only be considered incidentally in suits
raised alio intuitu; they cannot themselves be the subject of a suit. ]
cannot agree with this contention. Nowhere in the Ordinance it is de-

fined what sort of suits mayor may not be raised before the courts,
though limits are placed to the competence of minor courts, and in my
view the courts of the Sudan may, up to the limits of this competence,
if any, entertain a suit for any decree which is called for by equity,
justice or good conscience. In this the courts will be guided by the
general practice of developed systems of jurisprudence, and;ln partic-
ular, they would not, in my opinion, refuse jurisdiction in any suit of a
kind which the national courts of most or all civilised countries have
found it necessary to entertain. Section 5 of the Ordinance is not in
conflict with this view; that section, together with the whole of the part
of the Ordinance in which it occurs, has no concern with the question
of jurisdiction, but is concerned only with the sources of the law to be
applied in suits properly entertained according to the above principle.

2. The second point is this: granting the court has jurisdiction,
what Jaw is it to apply in suits of this kind? Here section 5 is definitely
in point, and the court is by this section directed in a suit involving
personal status or family relationship to apply any custom relating to
such matters applicable to the parties concerned. Such custom or
body of customs is usually referred to as the personal law of the
parties. It has been decided in this court that where the parties are
domiciled in a country other than the Sudan, which possesses a na-
tional law of personal status, such law is to be regarded as a body of
customs applicable to the parties within the meaning of section 5: the
law of the domicile is in these matters adopted by the law of the Sudan
as their personal law. But where the parties are domiciled in the Su-
dan, or in a country with no national law of personal status, then, it has
been held, it is the customs of the religious community to which they
belong which are to be looked to, and which comprise their personal
law. In the present case, the respondent "vas born and has lived all
her life in the Sudan; the appellant although born in Syria, has lived
continually for many years in the Sudan, and is the holder of a Sudan
passport. They are, in my view, both domiciled in the Sudan, and
the latter of the two alternatives stated above is applicable, therefore,
in this case. Both are members of the Catholic Church and in com-
munion with Rome, and look to the head of the Roman Church as
their ultimate spiritual head, although both are members primarily of
the Armenian Catholic Church, while their marriage was celebrated in
the Greek Catholic Church. When the parties first began to have dif-
ferences, the matter was referred by them to the only Catholic priest
in EI Obeid, namely the Greek Catholic priest in that town, who in
turn referred the matter to his Archimandrite ill Omdurrnan, who

made a sulh. The sulh, however, was not observed by the appellant,
and the respondent brought the matter before the civil court, claiming
judicial separation and alimony. In the course of her petition she set out
that she and her husband were both subject spiritually to the Vicar
Apostolic in Khartoum. The judge obtained a certificate of church
custom both from the Vicar Apostolic and the Greek Catholic Arch-
imandrite. The Archimandrite certified that Greek Catholics are gov-
erned by the Moslem Hanafite Code, while Bishop Bini, the Vicar
Apostolic, set out the Canon Law on the subject. Bishop Bini went
further and explained that when, as in El Obeid, there is only one
Catholic priest in a locality, he has under him all Catholics, no matter
to what particular rite of the Catholic Church they belong; whether
Latin, Greek Melchite, Coptic, Chaldean, Syrian, Maronite or Armen-
ian, but that these rites are grouped into two, namely Greek Melchite,
Coptic, Chaldean and Syrian on the one hand, and Latin, Maronite
and Armenian on the other, and that, if a priest of each of the two
groups is present, each has under him all Catholics of his respective
group. This explains why the parties, being at £1 Obeid, consulted
the Greek Catholic priest there: they were subject to him but not to his
church customs.

I am satisfied that the customs applicable to these parties and to
be enforced by the courts are those set out by Bishop Bini, but I will
go further and say that, had the parties been Greek Catholics, I should
in any event refuse to follow the certificate of the Greek Archiman-
drite. One can only assume that the Greek Catholics during the cen-
turies when they were under the Turks were forced to adopt the prev-
alent Moslem Code, but this fact does not make such Code a body of
customs applicable under section 5 of the Civil Justice Ordinance.
Where, in accordance with the interpretation which has been put on
this section, the courts of this country have to consult church customs,
it is the essential, universal and characteristic custom of that church to
which regard is to be paid, not that which it may have been forced to
adopt in a particular locality at particular times. Therefore, had these
parties been Greek Catholics, I should not have consulted the Hanafite
Code but, in default of any Greek Catholic custom in the above sense
being proved, I should, they being Catholics, have looked to the canon
law as the highest expression of the Catholic Christian law.

3. As to the findings in this case: it is to be regretted that the
learned judge, while discussing at length the allegations made by both
~hl"_, appears to have been reluctant to make specific findings against