Development of customary law and its modification by Islamic law
Customary law, it must be remembered, is not static and where the applicable customary law has been deeply modified by Mohammedan law or is identical with it in its rules regarding a particular issue, there is, in my view, nothing in the Marriage of Mohammedans Ordinance prohibiting the application of such customary or modified customary law.
It is necessary therefore that when an action is governed by rule 6 a plaintiff who wishes to avoid the effect of the general rule should make a clear-cut and positive assertion that he does not wish his claim to be adjudicated in terms of the common law. The choice is that of the plaintiff, not that of the court, and must be made in clear and precise terms.
Whether a person married under the Marriage Ordinance remains subject to customary law
We are of opinion that a person subject to customary law who marries under the Marriage Ordinance, does not cease to be a native subject to customary law by reason only of his contracting that marriage. The customary law will be applied to him in all matters, save and except those specifically excluded by the statute, and any other matters which are necessary consequences of the marriage under the Ordinance. Consequently, when such a person has a case in Court, native law and custom would be deemed to be the law applicable to that cause or matter, as provided under section 87(1) of the Courts Ordinance. We think it would be unreasonable, and repugnant to natural justice, to hold otherwise, as such a proposition would in effect exclude from access to Native Courts all persons married under the Ordinance, because it would follow from such an opinion that they had by their marriage choice elected to make themselves “non-natives”. To state the matter in this away clearly indicates the absurdity of the proposition, and its inherent improbability.
