071-NLR-NLR-V-60-A.-L.-M.-HANIFFA-Petitioner-and-A.-A.-RAZACK-et-al.-Respondents.pdf
SINNETAMBY, J.—Haniffa v. Bazack
287
1958Present: Sinnetamby, J.
A. L. M. HANIFFA, Petitioner, and A. A. RAZACK et cd.,
Respondents
S. C. 1,222—Application for a writ of Habeas Corpus
Habeas corpus—Muslim minor—Father's right to custody.
A Muslim girl is freed from the patria potestas on attaining 16 years of age.• Her father, therefore, is not entitled to elaim oustody of her against her will.
PPLICATION for a writ of habeas corpus.
M.I. M. Haniffa, for the petitioner.
8. Nadesan, Q.G., with V. J. Martyn, for the respondents.
Gw. adv. mitt.
May 15,1958. Sinnetamby, J.—
The facts of this case as found by the learned Magistrate are set oatin his recommendation and I do not propose to set them oat in detailhere. Suffice it to say that the 1st respondent who was married to thesister of the corpus, Sithie Fareeda, and was living with his wife in hisfather-in-law’s house, took advantage of his position in the householdto elope with Sithie Fareeda and carry her away to the house of the3rd to 5th respondents where she is living with the 1st respondent. Inthe same house the 1st respondent’s wife also lived at the time of themagisterial inquiry. The learned Magistrate was no doubt machinfluenced by the dastardly conduct of the 1st respondent in recommendingthat the corpus be delivered to her father. It is, however, necessary toconsider the altered circumstances and the law in coming to a decision.The corpus continues to live with the 1st respondent who has sincedivorced his wife, the sister of the corpus. He has produced a certifiedcopy of the Register of Divorces kept by the Kathi. He intends tomarry the corpus. The corpus who was questioned by me stated thatshe has become a Hanafi, which means that she no longer needs herfather’s consent to marry and may appoint her own “ Wali ” for thatpurpose. (Abdul Coder v. Bazik1). It is admitted that she is nowover 16 years of age and in the case of girls over that age the generallaw of the land is that the girl’s wishes in the matter should be con-sidered. This is applicable equally to Mohamedans—vide Marikar v.Marilcar2, where Wood Renton, C.J., held that a Mohamedan minorreached the age of discretion and was freed from the patria potestas onattaining puberty which has been fixed at 14 years for a boy and 16years for a girl.
* (1952) 54 N. L. B. 201.
(1915) 18 N. L. B. 481.
388
SINNETAMBY, J.—Hamffa v. Raatclc
It was conceded that a Mohamedan girl reaches the age of discretionon attaining 16 years of age and it cannot therefore be said that thecorpus in this case is being kept against her will by the respondents.I have seen the corpus.- She is very mature for her age and I amsatisfied that her decision to remain where she is, is her own. Thereis also the added fact that in the case of Mohamedan minora the motherand not the father it is who is entitled to the custody of an infant child.The mother of the corpus, it is to be noted, is not a party to theseproceedings.
In view of the above the writ of habeas corpus is not available to thepetitioner and the notice that issued in this case is accordingly discharged.
Application refused.