IN RE MARRIAGE OF MOHAMMEDANS ORDINANCE, CAP. 129 (1951 REV.); IN RE REGISTRATION OF MARRIAGE BETWEEN BYROUTHYAND AKYERE; EX PARTE ALI.
by CECILIA KORANTENG-ADDOW J.
Jurisdiction
HIGH COURT
Judge
CECILIA KORANTENG-ADDOW J.
Catalog Type
Case
Judgement Date
Jan 25, 1980
Summary
The applicant applied for an order for the issue of a certificate to authorize the registration of a marriage allegedly celebrated in 1946 in accordance with Islamic law. The evidence showed that the parties had initially contracted a marriage under Fanti customary law, which was subsequently solemnized under Islamic law. However, the marriage was never registered as required by the Marriage of Mohammedans Ordinance. The applicant contended that the failure to register the marriage was due to inadvertence and sought to regularize the position many years later. The issue before the court was whether a marriage celebrated under Islamic law could be validly registered several decades after its celebration and after it had effectively come to an end. The court held that under section 5 of the Ordinance, every Islamic marriage must be registered, and section 9 provides that such a marriage is not valid unless it is registered. Although section 6(10) allows for late registration in certain circumstances, the court held that such an application must be made within a reasonable time after the celebration of the marriage and while the marriage is still subsisting. The court found that the application, brought approximately 34 years after the marriage and after the death of the bridegroom, was made far too late. It reasoned that the death of the husband had brought the marriage to an end, and therefore no valid marriage existed that could be registered. The court further emphasized that timely registration is essential, particularly for purposes such as succession to property. Accordingly, the court held that granting the application would effectively validate an invalid marriage, which the law did not permit. The application was therefore misconceived and was struck out.
Full Content
CECILIA KORANTENG-ADDOW J.
This application is brought under section 6 (10) of the Marriage of Mohammedans Ordinance, Cap. 129 (1951 Rev.). The applicant is seeking an order for the issue of a certificate authorising any district chief executive to register a marriage which was alleged to have been celebrated in accordance with Islamic law in 1946 between one Abena Akyere, a cousin of the applicant, and one Mohammed Sadallah Byrouthy, a Lebanese, now deceased.
From the facts deposed to in the affidavit in support of the motion, the said Abena Akyere was married according to Fanti custom to the Lebanese who was then resident at Agona Swedru, and that the custom was performed to the father of Abena Akyere. Subsequently, the marriage was solemnised in accordance with Islamic law. The said marriage was blessed with one child but it was not registered as required by section 5 of the Ordinance. The applicant says it was through sheer inadvertence that the marriage was not registered, and by this application he is seeking to regularise the position. The application is supported by a statutory declaration made by the said Abena Akyere and one Abdul Salem Annewetey, a cousin of the deceased, Byrouthy, to the fact that the marriage was celebrated under Fanti customary law and subsequently solemnised under Islamic law.
By section 5 of the Ordinance, every Islamic marriage celebrated in this country after the commencement of the Ordinance “shall” be registered. And by section 9 no marriage contracted by persons professing the Islamic faith shall be valid unless so registered. Section 6(1) provides that the registration shall be done within one week after the said marriage. Section 6 (10) lays down the procedure by which the marriage can still be registered after the expiry of the statutory one week period. It is under this subsection that the applicant is proceeding. It is therefore necessary to quote the subsection in full. Section 6 (10) provides:
“(10) If the period of one week limited by subsection (1) shall have lapsed before registration of a marriage which should have been so registered as aforesaid, or if it shall prove impossible or impracticable to obtain the attendance of any person, other than a licensed priest, whose signature of the register is hereinbefore required, it shall be lawful for a judge of a Divisional Court, on an ex parte application by the bridegroom or bride’s wali, supported by an affidavit stating the reason for the delay or non-attendance, as the case may be, to issue a certificate under his hand authorising any District Commissioner to register such marriage at any time within one month from the date of such certificate, and on such registration to dispense with the signature of any person, other than a licensed priest.”
Although no time limit is set by the subsection as to when such an ex parte application may be brought, it is apparent from the Ordinance that time is of the essence, and that is why the period of registration is stated to be one week. It is my view that such an application should be brought within a reasonable time after the ceremony; at any rate, while the marriage is subsisting. The purpose, of the registration is to validate the marriage according to Islamic law. Section 9 provides:
“9. No marriage contracted or divorce effected in the Gold Coast after the commencement of this Ordinance by persons professing the Mohammedan faith shall be valid unless registered under this Ordinance: the proof of every marriage or divorce under this Ordinance, when such marriage or divorce shall be in issue, shall be by the production of the register in which the same is entered, or of an extract therefrom certified under the hand of the District Commissioner, or of the certificate of such marriage or divorce.”
But after the marriage has been brought to an end, whether by the parties’ own act or by operation of death, there can be no marriage subsisting which the applicant will be seeking to validate by registration. According to the affidavit the bridegroom has died. By his death, the marriage was brought to an end. While the marriage subsisted it was not registered, so under Islamic law it remained invalid.
That marriage cannot now be validated by a registration 34 years after it was contracted and after its termination. No marriage exist now for registration.
Section 10 of the Ordinance reinforces my argument that time is of essence in registering the marriage. By that section, on the death of a Moslem whose marriage has been “duly registered” under the Ordinance, the succession to his or her property shall be regulated by Islamic law. If registration could be effected any time after the celebration of the marriage, the legislators would not have employed words like “duly registered.” Commonsense dictates that the registration should be effected soon after the marriage when evidence of it and parties whose signatures are relevant would be available. The signature of the registered priest is necessary for such registration and it would be useless to give an order which cannot be put into operation. The essence is not the fact of the ceremony but the registration; that gives the marriage validity. Therefore the marriage between the said Abena Akyere and Mohammed Sadallah Byrouthy was invalid according to Islamic law, and it must be so declared; it cannot be validated. To grant this application and issue a certificate would amount to validating a marriage which is invalid. The application is misconceived and must be struck out.
Appearances
CHINNERY FOR THE APPLICANT.