JlloJtideen v. Si thy Kalhecja
1957*Present :T. S. Fernando, J.
A. C. M. MOHIDEEX, Petitioner, and SITHY KATHEEJA,
S. C. 22G—In the mailer of an Application for a Writ of Habeas Corpus
.Habeas corpus—Muslim law—Custody of infant child—Preferential right of motherthereto.–
AVhero a Muslim father of the Shafci sub-sect who was entitled by Jaw tosupervise fho upbringing of his four year old child sought to removo the childfrom tho custody of tho child's mother for about a fortnight onco in threo' months during the child’s school holidays—
Held, that the granting of the application would amount to a soriousencroacbnirnt on tho mother’s legal right to thophysic.il custody of tho child.
T. S. FJSRXAXDO, J.—Mohidccn, t>. Sithy Kathceja.
^Application for a writ of habeas corpus.
C. S. Barr Kmnarakalasinghe, with Izadecti Mohamcd, for thepetitioner.
J/. Jlafid:, for the respondent.-
Cur. adv. vult.
March 19, 19o7. T. «S. Ferxaxdo, J.—.
The petitioner made this application oil 2Sth February 195G seekingan order from tin's Court for the production by his wife, the respondent,of his son, Abdul Alcem, in court and a further order granting him thecustody of this child who was 4 years old at the time. It is not disputedtha t the law relating to the physical custody of children of Muslim parentsin Ceylon who belong to the Shafei sub-sect of the Sunni sect is laid downcorrectly in the case of In re ITappu Jlarihar 1, where Wood Renton J.stated that the cursus curiae in Ceylon has been in favour of granting thecustody of infant children of Muslim parents to the mother and thematernal relatives in preference to the father. It is there stated thataccording to the Shafei law the custod}' of a boy remains with the mother-till the completion of his seventh year at all events, and from thenceuntil puberty he may place himself under either parent whom he chooses.If, therefore, the respondent is entitled to the physical custody of thechild justification for making this application woidd have to be soughtin some real attempt by the respondent to prevent the petitioner fromseeing his child at reasonable hours and thereby interfering in someindirect way with his rights to exercise supervision over the child.
Notwithstanding the circumstances that the legal custody may be inthe mother, it is alleged that the Muslim law recognizes a right in thefather, by virtue of his duty to maintain the child, to supervise theupbringing of the child. This position is conceded by learned counselfor tha respondent who states that at the inquiry before the Magistratewhic-h preceded the argument before me the petitioner admitted undercross-examination that he was never prevented from seeing the childat the respondent’s home and that the respondent has done nothing toestrange the child from him. I have no reason to doubt that the res-pondent -who is an educated woman is genuinely desirous that the childshould grow up—to use her own -words—“ acknowledging the petitioner 'as his father
The only dispute between the parties to this application centres roundthe petitioner’s insistence that lie should be permitted to have the child(w ho now attends a school nominated by him) with him for a part of thechild’s school holidays. The respondent is equally insistent that thechild • should not spend even a single night away from her. Her
(7.977) 77 JV. £,. Ji. 226.
T. S. FERNANDO, J.—Alohideen v. Su?ty Kathecja
unrelenting attitude on this point appears to be due to an anxiety forthe child’s health -which she fears will suffer if the petitioner is allowedto take him away. Certain previous experiences apparently seem tohave left on her an impression sincerely formed that the petitioner under-stands nothing of the likes and dislikes of the child. At the beginningof the argument I was inclined to view the petitioner’s claim with someS3rmpathy, but there are circumstances now disclosed winch deter mefrom acceding to the petitioner’s request, even if I had the power to doso. One is that the petitioner has divorced the respondent after thisapplication was presented to the court, but the other and more compellingcircumstance is that the petitioner’s duties as an inspector of village worksinvolve much travelling and consequent absence from his residence whichat the moment is at Kathankudy in the Batticaloa District. He docsnot appear to have a relative or other fit person living with him who canlook after the child while the petitioner is attending to his official duties.Moreover, an arrangement by which a child of tender age is taken awayfrom its mother and left -with the father even for a short period becomesmeaningless when the father himself is so circumstanced as to be unableto have the child properly looked after and cared for. On the otherhand, X can see no good reason why the petitioner cannot make useof his holidajTs to travel up to Jaffna where the child and its mothernow live and see the child at all reasonable hours during suchholidays..
Learned counsel for the petitioner has invited my attention to certainobservations contained in the judgment of the Judicial Committee of thePrivy Council in Imambandi v. Mutsaddi 1 which indicate that the motheris not the natural guardian of the child. I fail, however, to see whatrelevance these observations are in the present context. The PrivyCouncil was concerned with a mother’s right to deal with a minor child’sproperty. What Their Lordships pointed out was that the custodyof the person was not guardianship ; it was not disputed at any stagein that case that the mother is entitled to the custody ofher minor children up to a certain age according to the sex of thechild.
As I have stated alread3‘, it is not disputed by the respondent that thepetitioner is entitled to supervise the child’s upbringing. At the sametime, as the respondent is entitled to the physical custody of the child,to permit the petitioner to take the child away for a fortnight or so oncein three months would appear to me to be a serious encroachment on therespondent’s rights in respect of that physical custodjr. It follows thateven if I had taken a view on the facts favourable to the claim of thepetitioner I would not have had the power in law to grant his prayer..This application must therefore be refused with costs.
(1917-1S) L. Ji. 45 Jnd. App. at p. S3.
A. C. M. MOHIDEEN, Petitioner, and SITHY KATHEEJA Respondent