Haque v Haque [1962] HCA 39; (1962) 108 CLR 230 (2 August 1962)

HIGH COURT OF AUSTRALIA

HAQUE v. HAQUE [1962] HCA 39; (1962) 108 CLR 230

Private International Law

High Court of Australia
Dixon C.J.(1), Kitto(1), Menzies(1) and Owen(1) JJ.

CATCHWORDS

Private International Law - Domicil - Indian resident in Western Australia for twenty-nine years apart from three visits to India - Muslim - Carrying on family business in Western Australia - First wife and two children residing in family home in India - Second wife and two children residing in Western Australia - Indian domicil of origin retained.

HEARING

Perth, 1962, June 12, 13;
Sydney, 1962, August 2. 2:8:1962
APPEAL from the Supreme Court of Western Australia.

DECISION

August 2.
THE COURT delivered the following written judgment:-
The proceeding before us consists in an appeal and a cross-appeal from a The judgment was given in an action which, as it began, presented features that were unusual, but was not complicated; such complications as there are it acquired as it proceeded. It was a claim by two infant children of one Abdul Haque deceased, a son named Saiful and a daughter named Farida, and by Azra Haque, their mother, against Nural Haque, the deceased's brother, to whom probate of his will had been granted as the executor named therein. The will constituted him universal legatee and devisee subject only to some precatory words imposing no trust but expressive of a desire on the part of the testator that Nural should distribute one third of the property amongst charities according to Islamic law and dispose of the other two thirds according to Islamic law. The claim was based upon an agreement under seal made between the deceased Abdul and the plaintiff Azra immediately before their marriage, which was celebrated at Perth on 23rd September 1951 according to the rites of the Muslim faith. Nural Haque was sued upon the agreement as executor but he was also named as defendant in his personal capacity: for the agreement provided in effect that the plaintiff Azra and her children should be entitled to all the rights to the deceased's property which Muslim law allowed and these rights would override the defendant's title under the will. The defendant Nural Haque resisted the enforcement against him of the agreement on various grounds. He said that the Muslim marriage at Perth was no marriage and the agreement thus contemplated cohabitation outside matrimony and accordingly could not be enforced by the Courts of Western Australia. He said that, however that might be, Abdul had divorced Azra according to Muslim law and therefore the agreement according to its true construction would not avail her: for Muslim law, though it entitled a wife to share in her deceased husband's property, gave no share to a wife whom her husband had divorced in his lifetime. In the course of the proceedings in the action in the Supreme Court it appeared that, before his marriage in Perth to Azra, Abdul had married a first wife in India. Her name is Kulsum Bibi and there are two daughters issue of the marriage: they are named respectively Sufia Ahmed and Jebon or Jabonessa Begum. The learned Chief Justice caused these parties to be notified by the plaintiffs of the proceedings in the action and to be informed that if they wished to contend that Azra did not marry the deceased or that she was divorced by him or that the children were not his son and daughter or that for any other reason the plaintiffs were not entitled in the distribution they might apply to the Supreme Court of Western Australia to be joined in the action. In the result they were joined as defendants and filed a defence and counterclaim. They said that the domicil of the deceased Abdul was India, it was his domicil of origin unchanged, that he was a Sunni Muslim, that he did marry Bibi and also the plaintiff Azra but that he divorced the latter. They said that as to movables everywhere and immovables in India the property of the deceased Abdul was distributable among his son and daughter by Azra, his two daughters by Bibi and his widow Bibi, the son taking fourteen-fortieths, the three daughters seven-fortieths each and the widow Bibi five-fortieths, but bringing into hotchpot whatever the children of Azra obtained from immovables in Western Australia. They counterclaimed for relief on that basis. (at p238)

2. The result was a suit perhaps unusually constituted: but so far as can be seen all the parties interested or possibly interested appear to have been before the learned Chief Justice and he made a final, if not complete, declaration of their respective rights in the estate of Abdul deceased. He decided that the domicil of the deceased was India and held that the distribution of his property (presumably movables) was accordingly governed by Muslim law. He found that Azra had for the purposes of Muslim law been married to Abdul and that she was later validly divorced under that law and that under Muslim law the divorce meant that she could not share and his Honour construed the deed as giving her no greater right. He held that the dispositions of the will in favour of Nural were under Muslim law void. The judgment or decree declared accordingly that the will was totally void in its dispositions and that the persons entitled in the distribution and the proportions in which they were so entitled were as follows: Saiful, the son of the deceased Abdul by Azra (fourteen-fortieths), next Farida, the daughter of Azra, and Sufia Ahmed and Jabonessa Begum, the two daughters of Bibi (each seven-fortieths) and the widow Bibi (five-fortieths). From this decree the defendant, the original defendant that is to say, Nural Haque, appealed on the ground that the domicil of his deceased brother Abdul was in Western Australia and that the will operated in his favour according to its terms: for various reasons the deed did not confer any superior right on Azra or her children Saiful and Farida. The plaintiff Azra cross-appealed against her exclusion from the distribution. If her cross-appeal succeeded and otherwise the decree stood it would mean that she would share with Bibi the widow's portion of five-fortieths, each taking a share amounting to five-eightieths. It is to be noted that the decree does not distinguish between immovables situated in Western Australia and movables. It seems to be thought by the parties, however, that the decree was not intended to include immovables situated in Western Australia. But attention does not appear to have been directed to the question of the classification or characterization of certain assets as movable or immovable, it being assumed perhaps that they were movable and accordingly that the distinction was of little practical importance. (at p239)

3. The foregoing statement, lengthy as it is, has the purpose only of making it clear in what way the questions which govern the proprietary rights in dispute are presented to this Court. No decision of the matter, however, could be satisfactorily explained without giving some further account of the facts of the case as they are to be gathered from the evidentiary material before us and at the same time attempting to show what is their legal bearing whether under Muslim law or our law. If the narrative is told chronologically it begins with the arrival in Fremantle in the year 1870 of the father of the deceased. He came from a village called Milky in West Bengal not far from Hooghli and he was a Sunni Muslim. He set up a business in Fremantle which he carried on for many years. We are told that he returned to India and his village at intervals of perhaps three to five years. On 16th October 1912 the deceased Abdul was born at Hooghli. That information comes from a file in the custody of a passport officer who was called. From the same source we know that he was brought to Australia in 1927 when he was fourteen years of age. He seems to have been married to Kulsum Bibi in 1925 before he left West Bengal. Abdul is said to have returned to India in 1936 or 1937 and to have remained there until 1940. His daughter by Kulsum Bibi, Sufia, was born there in 1938 and his daughter Jebon in 1939. His father returned to India finally at an unspecified date - the year 1936 is suggested. He died in India. It will be seen that, notwithstanding the possession of a wife in India for a portion of the period, he had lived so long in Fremantle and had such settled business interests there that Western Australia might well have been regarded as his domicil of choice so that his son Abdul would begin with a domicil of origin in Western Australia. But this view was not put at the trial and on the pleadings it was admitted that "the deceased Abdul was domiciled in India until the year 1927". It was alleged that "thereafter until his death he was domiciled in Western Australia". It is obvious that much importance must attach to the determination of the personal law of Abdul at the time of his death but in doing so it seems necessary to begin with the assumption that his domicil of origin was Indian. If his father between Abdul's birth in 1912 and his becoming sui juris acquired a new domicil it would become Abdul's domicil. "In India, broadly speaking, a minor is a person who has not completed the age of eighteen years.": Outlines of Muhammadam Law by Professor Asaf A. Fyzee, p. 172, ed. 1948, O.U.P. This appears to flow from statute. Muslim law had placed the age at fifteen years: but in any case there is no authority for the view that capacity to acquire a domicil of choice is governed by any law but that of the domicil the acquisition of which is sought. In the United States of America that view has apparently been taken - "It is clear that if a person claims domicil in a state in the courts of that state he must have capacity to acquire a domicil by the law of that state. To that extent at least, the law of the forum would be the only law to be applied." Joseph Beale, Conflict of Laws, (1935) vol. 1, p. 108, para 10.2. On the other hand, Professor Graveson in his Conflict of Laws, 1st ed. (1948) p. 69, says categorically "A domicil of choice can only be acquired by a person of full age and capacity. Whether he is of full age and capacity is determined by the law of his existing domicil." (at p240)

4. On the hypothesis that neither in 1912, when Abdul was born, nor in 1927, when his father brought him to Fremantle at the age of fourteen or fifteen years, had his father acquired a domicil of choice in Western Australia notwithstanding his residence there since 1870, Abdul's domicil must turn upon the question whether he acquired for himself a domicil of choice there. For the facts put out of account the theoretical possibility that between his arrival and his attaining full age some six years later his father changed his own and with it his son's domicil by dropping some intention to return to India and forming an intention permanently to reside in Australia. It appears that Abdul ultimately took over his father's business in Fremantle. The business premises included a dwelling and this he made his residence until 1955 when the business was sold. He visited India in 1937 and remained until 1940. He again visited India in 1953, staying about six months and then returning to Fremantle. Throughout he conducted the business in Fremantle. He described himself as a draper. His brother Nural who was born on 30th August 1917 and so was his junior by nearly five years became a partner and eventually other members of the family, making the number at least ten, came to share so that he held no more than a tenth share. This partnership was called A. Haque & Co. Another partnership between himself and Nural, called A. & N. Haque, was formed - perhaps to hold and deal in land. Abdul's first wife Bibi and a wife of Nural are said to have been brought into this partnership. At the date of Abdul's death some of the land had been sold but, whether in this or the other partnership, it is not clear that none of the proprietary rights of the deceased could be regarded as immovables: cf. Halsbury's Laws of England, 3rd ed. vol. 7, pp. 28-30. In September 1951 Azra Bux arrived in Fremantle from West Pakistan accompanied by her younger brother. Another brother was at Geelong. It had been arranged through her father and her uncle who was in Western Australia that she should marry Abdul Haque. She was of course a Muslim. She was born at Lahore on 12th November 1928 and therefore was twenty-two years of age. When she was sent out she was studying at the Lahore College for Women and was to take her Arts degree that year. The ceremony of marriage was performed a few days after her arrival. It was of course performed in Muslim fashion and though apparently she did not know that Abdul had an earlier wife - Bibi - she knew that Muslim marriage was polygamous or perhaps one should say polygynous. Before the ceremony but on the same day an agreement between them was executed under seal. The instrument began: "These marriage articles are made the 23rd day of September 1951 Between . . . ". Then followed the names and description of the parties. His was given as Abdul Haque of 196 John Street North Fremantle Draper; hers as Azra Amir Bux (daughter of Mohamed Amir Bux) formerly of 102 McLeod Street Lahore West Pakistan but now of Perth Hostel 196 William Street Perth. After a recital of the intended marriage the deed proceeds: "Now in consideration of the marriage this deed witnesseth as follows". The first clause requires the husband to pay to the wife the Mehr, or Mahr, as to which see Syed Sabir Husain v. Farzand Hasan (1937) 65 IA 119 which although a case of Shia Mohamedans explains the institution and sets out the exposition of Lord Parker in Hamira Bibi v. Zubaida Bibi (1916) 43 IA 294, at pp 300, 301 . The second clause declared that the husband should in every way be responsible for the maintenance and benefits of the wife according to the husband's station in life. The third clause provided that the husband should permit the wife every two years to visit her parents in Pakistan and he should bear all travelling and incidental expenses of the wife for such purpose. The fourth clause said that the wife and the issue of the marriage should be considered for all intents and purposes the husband's lawful wife and children and as such should be entitled to all the rights and claims to the husband's present and future property as the Muslim law allows them irrespective of any contrary testamentary or other disposition the husband may make with reference to such property. The fifth and last clause is designed to make the Muslim law the proper law of the contract or of the obligation of the deceased. It provides that the construction and effect of this deed should be determined in all respects according to the law of the Muslim Religion and that the rights and liabilities of the parties hereto and those claiming under them should be regulated by the Law of the Muslim Religion although some or all of them might be domiciled in the State of Western Australia. It is evident that the object of this deed, which was doubtless sought by Azra's uncle and brothers for her protection, was to affix to the solemnization or celebration in Australia of the Muslim ceremony all the consequences which would flow from it had it been celebrated in India or Pakistan. In form it is a deed deriving its obligatory character from the significance attached by the common law to the delivery of a deed duly sealed. But in substance its provisions mean to place the parties in exactly the same situation as if the marriage had taken place at Hooghli or at some other place in the Valley of the Ganges, whether in India or Eastern Pakistan. One consequence, for example, might be that the children of the marriage may be considered entitled to benefit under the provisions: cf. Khwaja Muhammad Khan v. Husaini Begam (1910) LR 37 IA 152, at p 159 where Mr. Ameer Ali speaking for the Privy Council said: "Their Lordships desire to observe that in India and among communities circumstanced as the Mahomedans, among whom marriages are contracted for minors by parents and guardians, it might occasion serious injustice if the common law doctrine was applied to agreements or arrangements entered into in connexion with such contracts." But the importance of the deed really depends in one aspect upon the domicil of Abdul at the time of his death and in another aspect upon the value of "immovables" in Western Australia forming part of the deceased's estate. For if the deceased was at his death domiciled in Western Australia, then his will must take effect upon his immovables in that State and his movables there and, so far as the lex rei sitae of any particular movable allows, elsewhere. But the effect that it takes must depend upon the degree to which the deed operates upon the proprietary interests of the deceased and his dispository power. Again, if his domicil was not in Western Australia but in India, his immovables will still be governed by the will but in the same way the effect that the will takes on them must depend upon the degree to which the deed operates upon the deceased's proprietary interest in and his dispository power over the immovables. (at p243)

5. After the execution of the deed the Muslim ceremony of marriage took place. It was not of course a marriage in conformity with the marriage laws of Western Australia, and belonging as it did to a polygamous system it stood outside the monogamous institution of marriage for which our laws provide. But according to the law of her Pakistani domicil it was a valid marriage, although of course that meant that she lost her Pakistani domicil and took her husband's domicil whatever that was. (at p243)

6. After the ceremony and a reception given by her uncle, Azra was driven by her husband Abdul to the place, already mentioned, where he lived at North Fremantle and there she resided until Abdul's death. In March 1952 she visited Pakistan, travelling with her two brothers; the occasion was her sister's wedding. She returned in June and was living with her husband at North Fremantle when her first child, Saiful Haque, was born on 30th August 1952. She executed a deed poll dated 18th August 1952, prepared for some reason that has not been made clear, changing her name from Azra Bux to Azra Haque. Perhaps the reason was that, though her marriage under Muslim law would mean the change of name, as it was not a marriage celebrated in accordance with Western Australian law it was considered that it would not operate here to do so. (at p244)

7. The Muslim law of divorce, which it will be necessary to explain, makes divorce easy and does not require the intervention of a court or public authority. Abdul's mind seems to have recurred to the possibility of divorcing Azra from time to time. One may guess, however, that he was advised that the marriage had no validity here. At all events Azra received from a solicitor in Fremantle a letter dated 15th September 1953 requesting her to vacate the house: it purported to be written on her husband's behalf. She says that she was shocked to receive it. She consulted her brothers and spoke to her husband about it repeatedly. He said that they would go to India and have the marriage registered. In May 1954 he made the will appointing Nural executor and leaving all the property to him subject to the precatory expressions already mentioned. Azra, Saiful and Abdul arrived in India on 12th July 1954. Her second child, her daughter Farida, was born on 13th December 1954 at a hospital in Calcutta. She left the hospital on 22nd December 1954 with her husband Abdul. Her husband visited his people and the village called Milky, twenty miles from Calcutta, whence they came. At length on 29th December 1954 he flew back to Australia, arranging that she and the children should follow by ship. In the meantime she visited her sister, presumably at Dacca in Eastern Pakistan. To her surprise she received by post in an envelope of a solicitor in Fremantle a formal communication of three "talaqs" divorcing her. It was dated 28th December 1954 as of Milky, the place whence the Haques came, and it was addressed to Azra at Dacca. The document said: "This is to inform you that my present life and circumstances compelled me to resolve that - I should dissolve the marriage, concluded according to the Islamic rites, with you. Hence, I have on this day, just now and in the presence of the persons, who sign herein below as attesting witness, dissolved my marriage with you by the usual method of pronouncing three 'talaks', according to Mohamadan rites. You are at liberty to re-marry, if you so desire. I therefore hereby communicate this fact of univocable (sic. irrevocable?) dissolution of my marriage with you, which please acknowledge in writing by return of post." The communication went on to say that as he had paid the dowry (or Mahr) he would have no further liabilities. The two witnesses, one of whom was Nural, subscribed the document and so of course did Abdul Haque. Mr. Mohammed Abdul Latif, a barrister of Lincoln's Inn and an advocate of the High Court at Calcutta, who gave evidence as an expert in Muslim law, on being shown the document said that it was a proper divorce. It is called a "talaq-nama". Professor Fyzee, writing under the heading "Dissolution of Marriage by Act of Parties. 1. By the husband (1) Talaq (Repudiation)" says: "The word talaq is usually rendered as 'repudiation'; it comes from a root (tallaqa) which means 'to release (an animal) from a tether'; whence, to repudiate the wife, or free her from the bondage of marriage. In law, it signifies the absolute power which the husband possesses of divorcing his wife at all times. A Muslim husband of sound mind may divorce his wife whenever he so desires without assigning any cause. Such a proceeding, although abominable, is nevertheless lawful. The divorce operates from the time of the pronouncement of talaq. . . . The pronouncement of talaq may be either revocable or irrevocable. As the Prophet of Islam did not favour the institution of talaq, the revocable forms of talaq are considered as the 'approved', and the irrevocable forms are treated as the 'disapproved' forms. A revocable pronouncement of divorce gives a locus poenitentiae to the man; but an irrevocable pronouncement leads to an undesirable result without a chance to reconsider the question." See Ma Mi v. Kallander Ammal (1926) LR 54 IA 61 . If the divorce is by triple talaq remarriage between the parties can only take place under conditions one of which is that the wife shall have remarried some one else and that that marriage should have been dissolved. Furthermore, after an irrevocable divorce neither of them can inherit from the other, that is of course unless they validly remarry one another. The definitive effect of a triple talaq is illustrated by the judgment of Lord Thankerton for the Privy Council in Rashid Ahmad v. Anisa Khatun (1931) LR 59 IA 21 . (at p245)

8. Azra, on receiving this document, went to her people at Lahore but in June 1955 she returned by ship with her children to Fremantle. It is not necessary to narrate the somewhat strange course that was then taken. It is enough to say that eventually Abdul asked her to come back. He was then in a new house and contemplating buying another business; but he said he would finally return to India. (at p245)

9. On 20th January 1956 they went through another ceremony of marriage and he paid another but small Mahr. They lived together until he died on 29th September of that year. (at p245)

10. Upon these facts it appears unfortunately to be certain that according to Muslim law in consequence of the triple talaq she ceased to be Abdul's wife and that the remarriage was irregular and gave her no title to share in the inheritance of his property. That is made clear by the decisions of the Privy Council already cited, the work of Professor Fyzee and the testimony of Mr. Latif. Unless by force of the deed therefore she must be excluded and her cross-appeal must fail even upon the footing that Nural fails in his attempt by means of his appeal to establish that Abdul's domicil was in Western Australia. It was contended on her behalf that the true interpretation of the deed entitled her to share as Abdul's wife or widow on his predeceasing her whether he died her husband or not; that the very object of the deed was to replace all reliance on the actuality of her married status and to substitute definite rights under Western Australian law measured on the assumption that she was and remained his Muslim wife. The purpose, it was maintained, was to remove misgivings as to the effect of the Muslim wedding in Fremantle, that is in the Australian jurisdiction. When cl. 4 provides that the wife and the issue of the marriage shall be considered for all intents and purposes the husband's lawful wife and children and as such shall be entitled etc., it means, so it was argued, not only that she shall be considered a wife in the beginning but that she shall be so considered to the end and accordingly entitled to the right of a wife in her husband's present and future property. This argument appears to press the deed beyond its true purpose as well as to put a more rigid meaning on its words than they in fact bear. It has not been thought necessary here to reproduce again the whole of cl. 4, but when it is read as a whole it seems clear enough that it is designed to establish Azra as a Mohammedan wife enjoying all the rights which belong to that situation; not to secure her in a position whether as to property or otherwise which is not subject to the conditions and contingencies which belong under Muslim law to her status. Some attempt was made also to treat the expression "Muslim law" as restricted, so to speak, to the purely religious law of the Koran and as not describing the actual law applied to Sunni Muslims by the Courts of India. There is nothing to support such a meaning: it would give an altogether artificial and impractical effect to the rights of the parties. It follows that Azra's counterclaim must fail. As to her children Saiful and Farida, the question whether they might perhaps fall back on the deed need not be considered unless it turns out that Abdul was domiciled in Western Australia or unless by chance the question should arise in reference to immovables not affected by domicil, but the latter question has not so far been raised in the proceedings. Then was Abdul domiciled at his death in Western Australia? If the case is stated simply as one in which a father came here in 1870, remained building up a business and returned to his native land only at the end of his life, leaving a son to carry on the business until in all eighty years passed, it seems astonishing that the son should be domiciled elsewhere. But if you take the close association always maintained with the family in the Valley of the Ganges and the village of Milky, the visits there, the formation of partnerships with relatives there, the constant intercourse with what they evidently regarded as the base and home, the existence of wives there, the birth and education of children like Abdul and Nural there, it begins to seem that they all regarded the business in Fremantle as a station - trading station perhaps - to which some of them went for unlimited periods perhaps but not as persons taking up a permanent home. Evidently they did not put off in the least degree their Mohammedanism and the ways of life it involved and they did not identify themselves with the Australian community or share in its life or manner of living. All this attitude must be counted against mere length of time, prolonged as it was. It might be easier to show that Abdul's father acquired a domicil of choice before Abdul was born than that Abdul acquired one on the assumption that his domicil of origin was India. But it must be borne in mind that no evidence was directed to the question of the domicil of Abdul's father and so it would be a mistake simply to give effect to the natural presumption to which length of residence gives rise. We do know that his son Abdul was brought here by him from India when he was fourteen or fifteen and that it is necessary to accept the assumption that Abdul was then domiciled in India and that means that his domicil of origin was in India. Great weight seems now to be placed by authoritative decisions on the domicil of origin and the presumption in favour of its continuance. It is true that the decisions in Winans v. Attorney-General (1904) AC 287 and Ramsay v. Liverpool Royal Infirmary (1930) AC 588 have been considered by many to go very far in treating length of residence and other factors associating the de cujus with a place or country as insufficient to overcome the presumption that the domicil of origin is unchanged. The domicil of origin "is a legal tie which binds a person at the moment of his birth to a given system of law and continues to operate throughout his life in the absence of any other domicil which he may acquire, either of choice as an independent person of full age or a domicil of dependence." : Professor Graveson: The Conflict of Laws, 1st ed. (1948) p. 65. In the case of a Muslim in India, the place in which he may have his domicil is India but under the law of that place he is governed by Muslim law - it is his personal law. This fact is not only of importance in determining his "personal" law but it is a consequence of his belonging to the Muslim community. Once the relations of Abdul to his relatives and the Muslim community in India or Pakistan are understood, it is much easier to see why the length of time he spent in Western Australia cannot in itself justify the inference that he had formed an intention to make Western Australia his permanent home. For an intention to remain permanently or at all events "indefinitely" in the country where he has taken up residence must be established to show that a man has acquired a domicil of choice in exchange for his domicil of origin. In Ramsay's Case (1930) AC 588 there is a passage in Lord Macmillan's opinion which brings out the point and shows how the standard must be applied. His Lordship said: "The acquisition of a domicil of choice is a legal inference which is drawn from the concurrence of evidence of the physical fact of residence with evidence of the mental fact of intention that such residence shall be permanent. So far as physical residence is concerned the evidence in the present case is amply sufficient. The deceased left Scotland between thirty and forty years before his death and never again set foot on his native soil. During all these years, with the exception of a short visit to the United States and a holiday trip to the Isle of Man, he lived continuously in Liverpool, where he ultimately died. But residence alone is not enough. The real question in the case is whether this prolonged residence in England was accompanied by an intention on the part of the deceased to choose England as his permanent home in preference to the country of his birth. The law requires evidence of volition to change. Prolonged actual residence is an important item of evidence of such volition, but it must be supplemented by other facts and circumstances indicative of intention. The residence must answer a qualitative as well as a quantitative test" (1930) AC, at pp 597, 598 . On all the facts the conclusion adopted by Wolff C.J. that the domicil of Abdul was his domicil of origin, viz. India, appears to be correct. That means that Muslim law as administered in India forms his personal law. His will, which was made on 7th May 1954, could not under Muslim law dispose of his property inconsistently with the rights of his children and his widow or widows. Muslim law recognizes the marriage celebrated in Fremantle between Abdul and Azra on 23rd September 1951 as a union the issue of which would be legitimate, whatever the law of Western Australia might say. The children Saiful and Farida are therefore entitled to share in the distribution of movables situated in Australia notwithstanding the dispositions of the will. But as to immovables in Western Australia the will must prevail, that is unless in some way the children can make a claim arising under the deed. That question was not argued before us and ought not in our present state of information on the whole subject of immovables to be dealt with by the Court. (at p249)

11. The evidence shows that the shares in movables which Saiful, Farida, Kulsum Bibi, Sufia and Jebon or Jabonessa take under Muslim law are those stated in the decree. It seems necessary, however, to substitute for the words "real and personal estate" in par. (b) of the decree the words "movable property" and to add a paragraph lettered (c) after the aforesaid par. (b), declaring that neither the said paragraph nor par. (a) affects immovables in Western Australia and directing that any question arising in relation to immovables be reserved for the further consideration of the Supreme Court. (at p249)

12. It is only necessary to add that in the view expressed above an argument advanced against the effectiveness of the deed does not arise. The argument was that the deed was unenforceable in our Courts because it contemplated cohabitation between man and woman without lawful marriage, for the polygamous marriage celebrated within Western Australia had no effect as a marriage under our law. In the circumstances of this case it is by no means certain that a court would adopt such a position: for it was an attempt by Muslims honestly and genuinely to establish a relation which Muslim law would recognize although the ceremony was performed in Australia where the law would not recognize a polygamous marriage entered into within Australia. That observation should perhaps be accompanied by a reference to a paper by Sir Eric Beckett on the Recognition of Polygamous Marriages under English Law (1932) 48 LQR 341; see too Russ v Russ (1962) 2 WLR 708; (1962) 1 All ER 344 ; cf. Soegito v. Soegito (1961) 105 SolJo 724 . (at p249)

13. Subject to the variations of the decree referred to above the appeal should be dismissed with costs. The cross appeal should be dismissed. The costs of the cross appeal so far as they are not covered by the foregoing order should be dealt with under par. (c) of the orders contained in the judgment under appeal. (at p249)

ORDER

Vary the judgment of the Supreme Court dated 7th November 1961.

(i) by substituting in par. (b) of the declaration the
words "movable property" for the words "real and
personal estate";

(ii) by adding, after the said par. (b) a paragraph lettered
(c) as follows: - "That the aforesaid declarations
(a) and (b) do not affect immovables in Western
Australia and that it is directed by this order that
any question arising in relation to such immovables
be reserved for the consideration of the Supreme
Court".

Subject to such variations, dismiss the appeal with costs and dismiss cross-appeal. Let the costs of the cross-appeal so far as they may not be covered by the foregoing order, be dealt with under par. (c) of the orders contained in the aforesaid judgment of the Supreme Court.