T. S. FERNANDO, J.—Mafthooka v. Thassim
Present: T. S. Fernando, J,M.A. S. MAFTHOOHA, Petitioner, and A. S. M. THASSIM and
S. C. 373 of 1962—^Application, under Section 45 of the Courts Ordinance(Cap. 8) for a Mandate in the nature of a Writ of Habeas Corpus.
Muslim, law—Custody of infant female children—Mother’s right thereto—“ Unworthyof being trusted "—Habeas corpus.
Among Ceylon Moors a mother is entitled to the custody of her infant femalechildren unless she by her conduct has disqualified herself from claiming theright to such custody.
Any disqualification of the mother on the ground of her being “ unworthy ofbeing trusted ” must arise out of misconduct.
S. A. Marikar, with M. D. K. Kulatunqe, for the petitioner.
H. W. Jayewardene,Q.C., with M. S. M. Nazeem and
M. T. M. Sivardeen, for the 1st respondent.
June 18, 1963. T. S. Feeiundo, J.—
The petitioner, the wife of the 1st respondent, makes this applicationfor an order from this Court directing her husband to hand over to her■custody the 2nd and 3rd respondents who are their children. The2nd and 3rd respondents are both females, and are today of the agesof 4 and 2 years respectively. The petitioner has left her marital homeand says that the 1st respondent prevented her from taking these twochildren away1 with her.
for a writ of habeas corpus.
Cur. adv. milt.
T. S. FEPuNANDO, >T.—M^fihaoha v. Thatsvtn
There is no dispute between these parties who are Ceylon Moors thatthey are governed, by the law applicable to the Shafei sect of Muslims.Under that law, the petitioner as the mother is ordinarily entitled tothe custody of her female -children. -That night “to custody which isknown as kizanat is lost—
by the subsequent marriage of the hazina with a person not related
to the child within the prohibited degrees ;
by her misconduct;
by her changing her domicile so as to prevent the father or tutor
from exercising the necessary supervision over the child;
by her abjuration of Islam ;
by her neglect or cruelty to the child—vide Mahommedan Law
by Ameer Ali (5th edition), p 256.
At the inquiry made on this application by the Magistrate of Matarathe respondent failed to establish the existence of any one of the abovefive grounds. Mr. Jayewardene, stating that on an application for thecustody of a child the paramount consideration is what is in the bestinterests of the child, argued that the authorities indicate that wherethe evidence shows that the mother is “ unworthy of being trusted ”she is not entitled to custody of the child. There is no doubt that thecourt is called upon to adjudicate in the best interests of the child, butthat adjudication must be reached within the framework of the lawgoverning the parties. Under that law, as I apprehend it, it is not opento this Court to refuse a mother the custody of her infant female children,unless she by her conduct has disqualified herself from claiming the rightto such custody. The allegation that the petitioner is “ unworthy ofbeing trusted ” is put forward on the basis that the evidence shows thatshe is a weak-willed woman, completely under the domination of herelder sister. But as Ameer Airs treatise itself indicates—vide p. 257—'any disqualification on the ground of being “unworthy of being trusted ”must arise out of misconduct. Misconduct is not established on theevidence here, and even if it has been shown that the petitioner is awoman of weak will that infirmity has not led to misconduct or, I mightadd, even neglect such as is contemplated in the relevant law. Thatbeing so, the respondent has failed to show that the best interests ofthese two infant children, require that the person who prirna facie isentitled to their custody should be denied that right.
The application is allowed and I make order directing the 1st respon-dent to hand over the 2nd and 3rd respondents to the custody of thepetitioner. This order will be executed by the Magistrate's Court ofMatara.
M. A. S. MAFTHOOHA, Petitioner, and A. S. M. THASSIM and 2 others, Respondents