091-NLR-NLR-V-70-M.-C.-M.-HAMEEN-Petitioner-and-A.-C.-M.-MALITHA-BABY-and-another-Respondents.pdf
Hameen v. Maliha Baby
405
Present : Manlcavasagar, J.M. C. M. HAMEEN, Petitioner, and A. C. M. MALIHA BABY
and another, Respondents
S. C. 791/64—Habeas Corpus Application
Muslim law—Dissolution of marriage— Mother's right to the custody of her child—
Forfeiture thereof if she re-marries—Habeas corpus.
In Muslim law (Shafei sect) a woman, whose marriage has been dissolved,forfeits her right to the custody of a male child of that marriage if she marriessubsequently a person who is not related to the child, unless special circumstancesare shown which require that the child should continue to remain in the mother’scustody.
406
MANIC AV AS AG AH, S.—Hameen v. Maliha Baby
Application for a writ of habeas corpus.
M. T. M. Sivardeen, for the Petitioner.
M. 8. M. Nazeem, for the Respondent.
Cur. adv. vult.
May 6, 1967. Manioavasagar, J.—
In these proceedings, the petitioner seeks an order from this Courtfor the custody of his son Cassim Mohamed Hameen who is at presentliving with his mother, the former wife, the respondent.
The petitioner and the respondent are Muslims and belong to theShafei subsect; they were married in 1951 and their marriage was dissolvedin 1957 : Hameen was born in May 1953 and will be 14 years next month ;he has been in the custody of his mother since the dissolution of themarriage.
The learned Magistrate has in a careful analysis of the evidence con-sidered every fact relevant to the issue, and found on the one hand thatthere is no factual circumstance which militates against the petitionerhaving the custody of his son, and on the other, that the child has notsuffered one whit from being with his mother, who has cared for himand looked after his health and education as any mother is expectedto do. But the Magistrate took the view that the law applicable tothe parties is such that the father should have the custody of his son.
Under any system of law, a paramount and, indeed, a vital considera-tion on an issue such as the instant one is the interest of the children,any other consideration being subordinate to it. The law applicableto the Muslims of the Shafei Sect recognises this by granting to themother her natural right to the custody of her child either on account oftenderness of age or weakness of sex, up to a specified time, 'which normallyis the 7th year in the case of a male child ; at this age the law permitsthe male child the choice of living with either of his parents until heattains puberty, when on the attainment of this or on reaching 15 years,whichever is earlier, he is personally emancipated from the Patria Potestas(Ameer Ali : Mohammedan Law, Vol II, (5th Edition) page 251, and50 N. L. R. 102 at 105).
In this case the boy has opted to live with his mother ; it is submittedthat his decision is not of his own free will but has been influenced bythe fact that he lives with his mother and has been persuaded to say so.This is a submission which needs consideration : as against this the boyhas lived with his mother for many years and being well cared for hemay have made his choice untrammelled by any extraneous influence.The Magistrate, however, though he does not say so, explicitly appears to
ALLES, J.—Ceylon Transport Board v. Abdeen
407
think that the boy has been unduly influenced. I also lean to the sameview because the boy denied knowledge of the petitioner being his father,though he lives in close proximity to his father’s home and has spokento him. I think it most unlikely that he does not know the petitioner tobe his father. In any event village gossip would have made him wiseon this ; his ignorance does not appear to be true and his choice thereforeis of doubtful value and not made in good faith. But there is a morecogent reason ; his mother has contracted another marriage and it isconceded that her husband is not related to the child. Under Muslimlaw a mother forfeits the right of custody by marriage to one who is notrelated to the child within the prohibited degrees (Ameer Ali : page 256),unless it is shown that there are special circumstances pertaining to theexclusive interests of the child which require that he should be in hismother’s custody ; the evidence does not disclose any such circumstances.
The recommendation by the Magistrate is adopted and is made anorder of this Court. The boy will soon reach the age when he would beemancipated ; he is old enough to have access to his mother of his ownfree will and he should not be restrained from exercising his rights.
Application refused.