Bassen v. Marikkar
1953 aPresent: H. A. de Silva J.
R. A. HASSEN, Petitioner, and C. L. M. MARIKKAR et al.tRespondents
S. C. 689 and 465—Habeas Corpus Application
Muslim law—Custody of children—Preferential right thereto after mother’s death.
Under the Muslim law the custody of a male child remains, at least up tohis seventh year, with the maternal relations, the mother being dead, and, inthe case of female children, until they are married.
XXaBEAS corpus application.
M. I. M. Haniffa, for the petitioner.
Izadeen Mohamed, for the 2nd respondent.
Cur. adv. vult.
8 (1916) 3 C. W. R. 366.
14 Cr. App. R 1.
TT A. DE SILVA J.—JETassen v. Marilekar
March 31, 1953. H. A. de Silva J.—
The petitioner who is the father of the 3rd, 4th, and 5th respondentsasks for their custody.
The petitioner’s wife, A. L. M. Khadija Umma, the mother of thesethree children, died in July, 1950. The 1st respondent is petitioner’slate wife’s father. The 2nd respondent is a sister of petitioner’s deceasedwife. The 2nd respondent claims the custody of these three children onthe ground that on the death of the children’s mother she as a maternalrelative has a preferential right to their custody. The learned Magistrateto whom this matter was sent for inquiry and report has after inquirysent his report. In his report the Magistrate recommended that thecustody of these three children be given to their maternal aunt, the 2ndrespondent, in whose custody they are at present. The learned Magistrateafter considering the facts placed before him and the arguments on thelaw has made bis recommendation. The facts as found by him are these.The petitioner after his marriage to A. Xi. M. Khadija Umma in the year1944 lived with his wife in the 1st respondent’s house where the 2ndrespondent too was living. The 2nd respondent married after two ofthe children of the petitioner were born. She too continued to live inher father’s house with her husband. She has three children. Thelearned Magistrate has found further that these three children have beenlooked after well and that they have not been subjected to any indifferenttreatment which has rendered their living with the 2nd respondentunhappy.
The petitioner is a business man who is away from his home duringthe day-time attending to his business and he proposes to place thesechildren now in charge of his widowed sister. The eldest of the threechildren is a male and the other two are females, their respective ages atthe date the petition was filed were 6, 4£ and 3 years. After his wife’sdeath the petitioner was away for sometime in India. The 1st and 2ndrespondents looked after the children from the date of their mother’sdeath. The children are quite used to their maternal grandfather andmaternal aunt. There appears to have been a dispute- between thepetitioner on the one side and the 1st respondent, his father-in-law, onthe other regarding the estate of the late Khadija Umma which is said tobe worth about Rs. 30,000. Hitherto the 1st and 2nd respondentshave brought those children up at their expense and under their care.As far as the facts go it seems pretty obvious that the children are quitehappy and are being well looked after by the 1st and 2nd respondents.
The next point one has got to consider is the legal position. Mr.Haniffa has contended that on the death of the mother the custody of thechildren should be with the father under the law applicable to Muslims.The parties are Muslims admittedly of the Shafee sect which is a sub-division of the Sunnis. He cited to me the following authorities amongstothers :— 9 S. G. G. 42, 29 Ar. L. R. 136, 51 N. L. R. 509. I may saythat the case reported in 29 N. L. R. does not help the petitioner. LyallGrant J. held as follows : “ Where a Muslim child was in the custody ofher maternal aunt from her infancy till the ninth year, the Court willnot restore the child to her father’s custody, where it is of opinion that such
H. A. HE SILVA J.—Saseen v. JUtarikkar
a change would be to the detriment of the child’s welfare The caseon which Mr. Haniffa laid emphasis is the one reported in 9 S. O. C. 42;there Burnside C.J., Clarence and Dias Jj., held that the father shouldbe preferred to the maternal grandmother of an infant whose motherwas dead. Dias J. has observed that in that case there was no proofas to the sect of Mohammedans to which the infant’s parents belonged.On the other hand this authority has been considered and dissented fromin the subsequent decisions of this Court. Vide 14 N. L, R. 225. WoodRenton J. after considering the decisions in 9 S.G.C. and the other decisionsheld that the Moors in Ceylon belong to the Shafee sect of Sunnis and thataccording to the Shafee law the custody of a girl remains with the mothernot merely until puberty but till she is actually married. In the caseof a boy the custody remains with the mother till completion of hisseventh year at all events, and from thence until puberty he may placehimself under either parent whom he chooses. Jayawardene A.J. in32 N. L. R. 63 has come to a similar conclusion. In Junaid v. Mohideenet al., 34 N. L. R. 141, having considered most of the earlier authoritiesincluding the case reported in 9 S. C. C. 42, Drieberg J. came to theconclusion that under the Muslim law the maternal grandmother of agirl is entitled to her custody on the mother’s death in preference to herfather.
The authorities seem to indicate that the custody of a male child atleast up to his seventh year remains with the maternal relations, themother being dead, and in the case of females until they are married.
The petitioner’s application fails and it is dismissed. The custody ofthe children will remain with the 2nd respondent with whom they areat present.'
Return papers to the Magistrate to communicate this order to theparties.