IN RE MARRIAGE OF MOHAMMEDANS ORDINANCE, CAP. 129 (1951 REV.); IN RE REGISTRATION OF MARRIAGE BETWEEN BYROUTHYAND AKYERE; EX PARTE ALI. [1980]DLHC1072

IN RE MARRIAGE OF MOHAMMEDANS ORDINANCE, CAP. 129 (1951 REV.); IN RE REGISTRATIO... [1980]DLHC1072

Date	1980-01-25
Suit No.
Citation No.	[1980]DLHC1072

CECILIA KORANTENG-ADDOW J.

CHINNERY FOR THE APPLICANT.

[1980]DLHC1072
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													<main id="main" class="content" style="min-height: 60rem" >IN RE MARRIAGE OF MOHAMMEDANS ORDINANCE, CAP. 129 (1951<o:p></o:p>REV.); IN RE REGISTRATION OF MARRIAGE <o:p></o:p>BETWEEN <o:p></o:p>BYROUTHYAND AKYERE; EX PARTE ALI.<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1978] GLR 872<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
25 JANUARY 1980<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

CHINNERY FOR THE APPLICANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CECILIA KORANTENG-ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF CECILIA KORANTENG-ADDOW J.<o:p></o:p>This
application is brought under section 6 (10) of the Marriage of Mohammedans
Ordinance, Cap. 129<o:p></o:p>(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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p>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<o:p></o:p>&nbsp;(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:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(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.”<o:p></o:p><o:p>&nbsp;</o:p>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:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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</main>