041-NLR-NLR-V-34-JUNAID-v.-MOHIDEEN-et-al.pdf
Junaid v. Mohideen.
141
1932Present: Drieberg J.
JUNAID v. MOHIDEEN et al.
In the Matter of an Application for a Writ of habeas corpus forthe Production of Sithi Marliya.
Habeas corpus—Muslim girl—Right of grandmother to custody—Muslim law.
Under the Muslim law the maternal grandmother of a girl is entitledto her custody on the mother’s death in preference to her father.
The rule of Muslim law is in force among the Ceylon Moors in such_acase.
1 (1931) 1 C. L. W. i70.
34/13-
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DRIEBERG J.—Junaid v. Mohideen.
^^PPLICATION for a writ of habeas corpus.
R. L. Pereira, K.C. (with hirn Gratiaen and Ismail), for the petitioner.
H. B. Koch, K.C. (with him Chelvanayagam), for the respondents.
November 14, 1932. Drieberg J.—
The wife of the petitioner died in February, 1932. leaving an only cnild,Sithi Marliya, aged four and a half years who, for some time since hermother’s death, has been with her maternal grandmother, the secondrespondent, Balkees Umma. The petitioner asks that the girl be givenover to him.
If the second respondent is entitled to the custody of the child inpreference to her father the petitioner, there are no special considerationsas I shall point out, why the second respondent should be deprived ofthis right.
The parties are Ceylon Moors who belong to the Shafei sect, of Sunnisand there is no question, it is admitted by the counsel for the petitioner,
• that under the Shafei law the second respondent as maternal grand-mother is entitled to the custody of the child. It is clear that this ruleof the Muslim law was adopted by and is in force among the CeylonMoors. This was recognized by the Full Court comprised of Creasy C.J.,Sterling J., and Temple J. in D. C. Colombo 29,370 and C. R. Colombo,9,370 decided on July 22, 1862, reported in 1860-1862 Rarrianathan 144.In the same volume of Ramanathan’s reports on page 38. in the case ofAysa Natchia, Temple J. on August 6, 1861, in an application of habeascorpus upheld the right of the maternal grandmother. Counsel for thegrandmother relied on a decision of the Supreme Court of June 14, 1843.Thomson 3. in his Institutes of the Laws of Ceylon, published in 1866,volume 2, page 545, says: —
“ The grandmother of a Mahomedan child is entitled to the custodyof the child after the mother’s death. The obligation of providing forthe child’s maintenance is paramount on the father, although thegrandmother has the child in her custody, and although the fatherwishes to have the child in his own."
He refers to the two cases reported in 1860-1862 Ramanathan’s Reports.
That the Muhammadan lav/ on this point was in force among theCeylon Muslims does not appear to have been questioned, to judge fromthe reports, until 1890 in the case of S. M. L. Ahamedu Lebbe Marikar That was a habeas corpus proceeding in which the father of a boy threeyears of age, his mother being dead, claimed custody of the child againsthis maternal grandmother. The matter was dealt with by Burnside C.J.in Chambers. He stated his doubts whether the Muhammadans couldbe exempt from the ordinary law, but said.he was bound by the decisions.He felt that these should be reviewed and directed that the matter beheard by the Full Court which then consisted of three Judges, It
i 9 S. C. C. 42.
DRIEBERG J.—Junaid. v. Mohideen.
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appears, however, to have been brought before a bench of two Judges,Clarence J. and Dias J., who held in favour of the father on the groundthat there was no evidence that the Muhammadan laws and usages onthis point were adopted in Ceylon; a point was also made that under theShiah law the father had preference and that there was nothing to showwhether the mother of the child belonged to the Shiah or the Shafei sect.
In the case of Wappu Marikar and UmmaniummaWood Renton J.declined to follow the judgment in 9 S. C. C. 42 on the ground that it wasnot a judgment of three Judges, though no doubt Burnside C.J., inreferring it from Chambers, expressed his view of the case. WoodRenton J. said: “ the cursus curiae, has, I think, been in favour of givingthe custody of infant children of Muhammadan parents to the motherand maternal relatives in preference to the father.” He referred toThomson’s Institutes, Vol. 2 p. 545, and the cases in 1860-1862Ramanathan, which I have cited, as express authorities to that effect.With the one exception of the case of Mohamadu Cassim v. Cassie Lebbe*the cursus curiae has continued. The record-keeper has traced a numberof similar cases which I have examined. They are—Petition 340 of1912 decided by Ennis J. on November 12, 1912. Petition 36 of 1916decided by Sampayo J. on February 18, 1916. Petition 394 of 1917decided by Sampayo J. on September 21, 1917. Petition 274 of 1920•decided by Schneider J. on August 31, 1920. Petition 681 of 1926decided by me on February 8, 1927, in that case the maternal aunt waspreferred to the father. Petition 446 of 1929 decided by Akbar J. onJune 11, 1929. Petition 287 of 1929 decided by Akbar J. on April 22,1929. Petition 653 of 1930 decided by Jayewardene A.J. on September3, 1930.
In Mohamadu Cassim v. Cassie Lebbe (supra) the father of a girl of nineyears claimed custody of her against her maternal aunt. The child hadbeen with the aunt from infancy. Lyall Grant J. refused to give overthe child to the father but not however on the ground that the maternalaunt was legally entitled to custody to it, for he considered that in segoMeera Lebbe Ahamado the Full Court decided in favour of the preferentialright of the father. There was a good deal against the father personallyand he held that there was sufficient ground to interfere with the father’slegal right in the interests of the child. He said he did not think thedecision in 9 S. C. C. 42 had ever been questioned. It was not broughtto his notice apparently that it was considered and not followed byWood Renton J. in Wapu Marikar v. Ummaniumma (supra) and thatthat judgment was thereafter followed.
The second respondent being entitled to the custody of the child, itremains to be considered whether any special circumstances exist whichmake it necessary, in the interests of the child, that she should not be leftwith the second respondent. All that can be urged against her is herstate of health. She suffers from an organic disease which ordinarilyis progressive. It renders her liable to uraemic coma and she had oncean attack of it, but Doctor Paul who saw her when she was in that con-dition says that the ailment is sometimes stationary and that she might» 14 N. L. R. 225,= (1927) 29 N. L. R. 136.
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DRIEBERG J.—Junaid v. Mohideen.
not have a return of it in an embarrassing form for some length of time.He says that men with this ailment have carried on active and successfulprofessional work. She is extremely stout and the Police Magistratethought she was too lethargic to attend to the child properly.Doctor Paul calls it a pathological type of fatness but he says itshould not prevent her from giving the child all the attention she needs.The girl appears to be well looked after and very fond of the secondrespondent.
I do not think it necessary in the interests of the child that she shouldbe taken away from the second respondent.
The application of the petitioner is dismissed.
Application dismissed.