(COURT OF APPEAL)*

DANSA OUTA v. ARGASI-l DANGO FILIGH

AC-APP-11-1966

Principles

·  Family Law—Marriage between excepted communities under Non-Mohammedan Marriage Ordinance. s. 5 be valid it must be celebrated according to the Ordinance

If the parties belong to an excepted community under Non-Mohammedan Marriage Ordinance. e.g.. Coptic Orthodox Church, for their marriage to be valid and recognized by Sudan courts, it must be celebrated in accordance with the formalities under Non-Mohammedan Marriage Ordinance, s. g.

Judgment

Babiker Awadalla C.J. February 1, 1967:-This is an appeal against the judgment and decree of His Honour the Province Judge, Northern Province, granting to respondent, Argash Dango Filigh, a decree of divorce against appellant, Dansa Outa.

The parties to the proceedings arc Ethiopians who claim to belong to the Orthodox Coptic Church, and as such, have to seek their remedy on a matter of this sort before the civil courts.

Before His Honour the Province Judge, respondent contended that she is domiciled in the Sudan and that she was married to appellant at Atbara in accordance with the Coptic Orthodox faith, but that the marriage was not celebrated in Church, but was only concluded in the house of appellant’s mother before witnesses, one of whom was the Sheikh of the Ethiopians at Atbara.

Appellant did not appear in the court below. The court called as a witness the Priest of the Coptic Church at Atbara who emphatically denied the possibility in accordance with Coptic personal law of concluding a valid marriage otherwise than in Church.

Nonetheless, His Honour the Province Judge heard lay witnesses who attended the alleged marriage. They both gave evidence that a customary civil marriage is recognized between Ethiopian Christians where the parties enter into a loose union which can be dissolved on any of several grounds, e.g., cruelty, desertion, mutual agreement, etc.

Accepting such evidence as expressive of the personal law of the parties, His Honour the Province Judge on October 26, 1965, gave a decree nisi in favour of respondent and three months later, i.e., on January 13, 1966, passed a final decree of divorce.

Before us, appellant contended that the marriage was conducted by an Ethiopian priest named Laiken Abba and submitted what purported to be a marriage certificate written both in English and Ethiopian, but signed neither by the priest nor by the parties.

This court had to order summons of the said priest, hut summons could not be duly served owing to the fact that the said priest had left the Sudan. The Bishop of the Ethiopian Church in Khartoum under whose diocese the absent priest is alleged to have been functioning, was therefore duly summoned and examined under the Civil Justice Ordinance, s. 172

He admitted that the Ethiopian community in the Sudan belongs to the Coptic Orthodox Church.

He recognized the certificate and gave evidence that it was in the hand of Laiken Abba who was the priest sent by him to celebrate the marriage at Atbara. He contended that the certificate of marriage was filled in by the priest in question after his return from Atbara, and that is the reason for his failure to obtain the signature of the married Coupled.

The attention of this Bishop was directed to the fact that the certificate in question is not in accordance with the form prescribed by the Ordinance for the Excepted Communities, but he displayed deplorable ignorance of the existence of the Non-Mohammedan Marriage Ordinance, 1926, and stated that he gets the blank forms for these certificates from Addis Ababa.

Now, if the parties to this appeal belong to the Coptic Orthodox Church, then they belong to the category of Excepted Communities enumerated in Part I of the Second Schedule to the Non- Mohammedan Marriage Ordinance, and as such their marriage can only be celebrated by a Minister of their religion if—and only if—the pro of the Non- Mohammedan Marriage Ordinance, s. ç, have been complied with.

Those requirements are:

(i)                   The marriage must be celebrated by a minister of the community

(ii) According to the rites in use in such community; and

(iii) All the requirements of the personal law of the parties have been complied with.

According to the evidence of the priest of the Atbara Coptic Orthodox Church a valid marriage according to their Church or personal law must be celebrated in Church according to certain rites.

As the marriage in question was neither celebrated in Church nor solemnized in accordance with the rites in use in the community it cannot be recognized as a valid marriage by the Orthodox Coptic Church and therefore cannot be given any recognition in a court of law in the Sudan.

The decision of His Honour the Province judge recognizing the said marriage as a valid marriage and ordering its termination by divorce is therefore wrong.

This appeal is therefore allowed with costs, and the decision of His Honour the Province Judge is hereby set aside.

Osman El Tayeb J. February 1, 1967: —I agree.

 El Fatih Awouda J. February 1, 1967: - agree.