150-NLR-NLR-V-44-FAIZ-MOHAMED-v.-ELSIE-FATHUMMA.pdf
574 WIJEYEWARDENE J.—Faiz Mohamed v. Elsie Fathumma.
1942Present: Wijeyewardene J.
FAIZ MOHAMED v. ELSIE FATHUMMA.
In the Matter of an Application for a Writ of Habeas Corpus.
Muslim Law—Custody of child—Right of father—Writ of Habeas Corpus.
Under the law applicable to the Hanafi sect of Muslims the father isentitled to the custody of a male child on the completion of the seventhyear, unless there are strong grounds for interfering with his right.
*rJ1 HIS was an application for a writ of habeas corpus.
S. A. Marikar, for petitioner.
D. Cosme, for respondent.
November 12, 1942. Wijeyewardene J.—
This is an application for the custody of a male child. The petitioneris the father of the child. He is a Baluchi belonging to the Hanafi sectof Muslims. The second respondent, the mother of the child, is a memberof the'Burgher community. She was a Christian until her marriage whenshe became a convert to Islam. The child Was born on September 27,1935. The petitioner and the second respondent lived together for a fewmonths after their marriage and then separated. In June, 1936, thepetitioner applied for the custody of the child and his application wasrefused by this Court in January, 1937, on the ground that the secondrespondent was entitled to the custody of the male child under sevenyears.
Under the Hanafi law the mother’s right to the custody of a son endswith the completion of his seventh year. Vide Ameer Ali (4th edition),Vol. 2, p. 295. The present application cannot, therefore, be refusedunless there are strong grounds for interfering with the legalrights of the father Idu v. Amararii1; Ran Menika v. .Paynter*.The proceedings in this case do not disclose any such grounds. Thepetitioner has .maintained the child during the last seven years andprovided for his education at Zahira College. On the other hand thesecond respondent lives with her parents and sisters all of whom areChristians. They appear moreover to be in impecunious circumstances.So long as the boy remains in the custody of the mother he will be broughtup in a non-Muslim home. I hold that, the petitioner is entitled to thecustody of the child, and order that the child be given over to the petitioneron or before January 31, 1943. I have suspended this order untilJanuary 31, 1943. in order to enable the second respondent to give moreopportunities to the child to come in contact with the petitioner and getto know him more intimately.' I trust that the second respondent willconsult the true interests of the child and try to instil into his mindfeelings of love for the father so that he may not feel keenly the separationfrom the mother when he leaves her at the end of the period fixed by me.J make no order as to costs.
Application allowed.
2 34 N. L. R. 127.
1 8 all. 323.