(COURT OF APPEAL) *

RAGINALLA AHMED FADLALLA vs. ABDUL GASIM HASSAN

AND RAGAB MURGAN

AC-Revision-222-59

Revision

Principles

  Practice and procedure—Jurisdiction of Civil and Sharia Courts—Sadag

     A claim to Sadag (dowry) for a Mohammedan girl cannot be brought in the Civil Courts. being included in the excluded subject of “marriage” in Civil Justice Ordinance. S. 38, except with consent of all the parties. If an action claiming Sadag is brought in a Civil Court, the Court itself should take the
* Court: M. A. Abu Rannat C.J., Abdel Mageed Imam J.
                                                                                                  
jurisdictional point, if the parties do not do so. Semble the fact that both sides
argue the case on the merits in the Civil Court does not amount to consent, which must appear on the record.
Decision of Wad Medani District Court (CS/2024/58) held ultra vires and void.

Judgment

      An action for Sadag having been brought in the District Court, the parties argued it on the merits. The Judge then gave judgment, for the revision of which the unsuccessful party (the mother) claimed in the Court of Appeal. Semble, the defendants did not argue the jurisdictional point, but on the other hand nothing appeared in the record to show that they had consented. All the parties were Mohammedans.

  13th October1959 Abdel Mageed Imam J. : —In Wad Medani District Court, Blue Nile Province, a claim by a mother for recovery of the sum of £S.28, being Sadag of a daughter of hers, was allowed, heard to the finish, and finally dismissed with costs.

   Civil Courts have no jurisdiction to hear and determine such matters as Sadag, which is an incident of marriage. Civil Justice Ordinance, S. 38, reads:

   “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.”

    There is nothing in the record to show that the defendants had submitted themselves to the jurisdiction of the above-mentioned District Court.

   As the Court of first instance has no jurisdiction, the application should be summarily dismissed, but in fairness to the applicant (and plaintiff) her fees in the District Court should be refunded so that she may take her hopeless claim to the Sharia Court if she dares to chance another course of fruitless litigation.

Referred to Chief Justice under Civil Justice Ordinance, s. 176 (1).

    14th October M. A. Abu Rannat C.J.: —Application is summarily dismissed. I further order that the fee she has paid be refunded to her.

                                                                                                    (Order accordingly)