079-NLR-NLR-V-77-M.-H.-M.-SUBAIR-Petitioner-and-M.-S.-M.-ISTHIKAR-and-2-others-Respondents.pdf
Sttbavr v. Isthikar
397
1974 Present: Wijayatilake, J., Walgampaya, J., and Ismail, J.M.H. M. SUBAIR, Petitioner, and M. S. M. ISTHIKAR and 2others, Respondents
S. C. 47/73—Application for a Mandate in the nature of Writ ofHabeas Corpus for the production in Court of the body of M. S.Mohamed Isthikar
Habeas corpus—Muslim law—Right to the custody of a male child whohas passed the age of 7—Father’s right is not absolute—Welfareof the child is the prime consideration—Effect of second marriageof the child’s mother.
Application for a writ of habeas corpus was made by the petitioner,a Muslim, for the custody of his male child (1st respondent) whowas over the age of seven years. The child was in the custody ofhis maternal grandmother, with whom was also living the 2ndrespondent, who was the mother of the child, and the 3rd respondentwho married the 2nd respondent after the marriage of the petitionerto the 2nd respondent had been dissolved.
Held, that under the Muslim law, the father of a male child whois over the age of seven years does not have an absolute right tothe custody of the child. After the age of 7 years a male child hasthe option to decide whether he should remain with the fatheror the mother. It is also clear from the authorities that the primeconsideration is the welfare of the child. In the present case thesecond marriage of the child’s mother would not entitle thepetitioner to the custody of the child.
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ISMAIL, J.—Subair v. Iathikar
Application for a Writ of habeas corpus.
M.T. M. Sivardeen, for the petitioner.
M. Markhani, for the respondent.
Cur. adv. vult.
July 3, 1974. Ismail, J.—
This matter arises for consideration as a result of an applicationmade by the father of the corpus for custody of the child M. S.Mohamed Isthikar from the custody of his maternal grand-mother.
The facts briefly are that the Petitioner had married the 2ndRespondent in December, 1963. The parties had been divorcedin 1964 after they had lived together for a couple of months orso. This child had been bom after the Petitioner left the 2ndRespondent, in November 1964—vide PI. Subsequently the 2ndRespondent'had married the 3rd Respondent. The 2nd and 3rdRespondents with the child had continued to live right throughin the house of the grandmother. The Petitioner even at thetime 2nd Respondent married the 3rd Respondent on 3.11.68 hadmade no effort to get the custody of this child.
It is also in evidence that the Petitioner had paid no attentionwhatsoever to the corpus, had not visited the corpus and hadnot maintained the corpus from the time of the child’s birthright up to his making this application to this Court. The learnedMagistrate was amply justified in coming to the conclusion thatthe Petitioner’s story of having visited the child at the schoolon two occasions is probably untrue.
It is also in evidence that the 2nd Respondent had made anapplication to the Quazi Court for maintenance and an orderfor maintenance in a sum of Rs. 100 had been made against thePetitioner. It therefore appears to me that the Petitioner hasmade this present application for custody of the child only as aresult of an order for maintenance made against him in the■Quazi Court. It is also to be noted that the Petitioner hasappealed against the order for maintenance. Therefore, there isno doubt from the facts and circumstances which the learnedMagistrate has referred to in the course of his order that thepresent application apparently has been brought in view of theorder for maintenance made against the Petitioner, to circumventthat order.
ISMAIL, J.—Subair v. Isthikar
399
The evidence in this case amply indicates that the child inquestion is being very well looked after, considering his statusin life, by his mother and grandmother. There is also ampleevidence to indicate that the child is getting on happily in theenvironment in which he is now. It is also equally obvious thatthe Petitioner—the father—is a complete stranger to the childand the child categorically stated that until he came into Courtsin connection with this application before the Magistrate that hehad never set eyes on his father. The child has also expressedcomplete opposition to his leaving his grandmother’s house andgoing to reside with his father.
Custody of the child with the Petitioner would necessarilymean that the child would be taken away from the place of hispresent residence and being put into completely new surround-ings and being educated possibly at Kalutara as indicated by thePetitioner. It is also the Petitioner’s evidence that he is in receiptof an income of only about Rs. 100 per month all inclusive andthat too an allowance from his father. With this paltry sum it isapparent that the Petitioner will not be capable of maintainingthe child in the circumstances which the child has become usedto.
From the facts and circumstances that have transpired in theevidence it is clear that it is not love, affection, family loyalty orsome similar sentiment which motivated the Petitioner to come toCourt and ask for the custody of the child. On the other hand,it is equally clear that the reason for the Petitioner comingin at this belated stage and asking for the custody of the childis solely attributable to the order for maintenance made againsthim by the Quazi.
In the light of these facts it will be necessary to examinevarious authorities cited by the counsel appearing for Petitionerto determine whether the claim of a father for custody of a malechild over the age of 7 years under the Muslim Law is paramountor whether one should take into consideration the welfare andthe well-being of the child. Counsel appearing for Petitionercontended that the Muslim Law as it s+ands now gives absoluteright to the father for custody of a minor male child of over 7years of age.
In the case reported in 14 N. L. R.—page 225—it was heldthat, “ the Cursus Curiae in Ceylon has been in favour ofgiving the custody of infant children of Muhammadan parentsto the mother and the maternal relatives in preference to thefather. According to the Shafei Law the custody of a girl remainswith the mother, not merely until puberty, but till she is
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ISMAIL, J.—Subair v. Islhikar
actually married; in the case of a boy, till the completion of hisseventh year at all e^nts, and from thence until puberty hemay place himself under either parent whom he chooses. ”
In 29 N. L>. R.—page 136—it was held, “ Where a Muslim childwas in the custody of her maternal aunt from her infancy tillthe ninth year, the Court will not restore the child to her father’scustody, where it is of opinion that such a change would beto the detriment of the child’s welfare. ” No doubt in this case,the corpus was a female. But, in the light of several decisionsreferred to in the course of the judgment the right to custodyof the child was held not to be absolute. Lyall Grant, J.,stated in the course of his judgment, “I do not think that thisCourt has ever felt itself compelled to order a child to beremoved from the custody of relatives who are performingtheir duty towards the child in a perfectly satisfactory mannerand to be handed over to the custody of its natural guardian,where the Court is of opinion that such a change would be to thedetriment of the welfare of the child. The Magistrate hasreported in this case that in his opinion “ the handing overthe custody of the child to the petitioner would affect the childadversely and strongly work for her unhappiness ”. I see noreason to disagree with his opinion.
It will therefore be seen that of the principles that are a guideto Courts in considering the question of custody of a child, thechild’s welfare and happiness are the prime consideration.
In the case reported in 70 N. L. R.—page 405, it was held that“ in Muslim Law (Shafei Sect) a woman, whose marriage hasbeen dissolved, forfeits her right to the custody of a male childof that marriage if she marries subsequently a person who isnot related to the child, unless special circumstances are shownwhich require that the child should continue to remain in themother’s custody.” In the course of the judgmentManicavasagar, J., stated—“ Under any system of law, aparamount and, indeed, a vital consideration on an issue such asthe instant one is the interest of the children, any other conside-ration being subordinate to it. The law applicable to the Muslimsof the Shafei Sect recognises this by granting to the motherher natural right to the custody of her child either on accountof tenderness of age or weakness of sex, up to a specified time,which normally is the seventh year in the case of a male child ;at this age the law permits the male child the choice of livingwith either of his parents until he attains puberty, when on theattainment of this or on reaching 15 years, whichever is earlier,he is personally emancipated from the patria potestas. ”
ISMAIL, J.—Subair v. Islhikar
401
Ameer Ali in volume II—Mohammedan Law—at page 251 says,“ Shafeis and Hanbalis allow a boy at the age of seven, thechoice of living with either of its parents. Should he prefer tocontinue with his mother, he is allowed to do so until he attainsthe age of puberty, when he has no option and his guardianshipdevolves on the father. In practice, however, the father’s rightto the custody of the boy’s person terminates with his puberty.For he is then personally emancipated from the patria potestas. ”
At page 257—Ameer Ali discusses the question of the subse-quent marriage of the Hazina—that is the woman having custodyof the child—to a person who is not related to the child withinthe prohibited degrees. It appears that normally when such amarriage takes pace the woman loses the custody of the child,but he says, “ Although ordinarily the woman entitled to thecustody of a child forfeits her right on contracting a marriagewith a stranger, special considerations regarding the interestsof the child may require that its custody should be retained byher. For example—if a woman separated from her first husbandwere to marry a second time in order to secure for her infantchild better and more comfortable living, she would not forfeither right to custody. The Courts would preserve to the motherthe custody of the child, if it be in its interest that it shouldremain with her. So also where the Hazina contracts a secondmarriage, and the father does not, within a reasonable space oftime from the date of such marriage, or from the date of hisknowledge thereof claim the person of the infant, he should besupposed to have abandoned his right over it, and it shouldremain thenceforward definitely under her care. ”
Tyabji, in his principles of Muhammandan Law 1913 Edition atpage 207 comments as follows: —“ There are many cases inwhich the Courts have said broadly that the welfare of theminor shall be the paramount consideration in appointing (ordeclaring) guardians ; and this may afford an explanation ofdifferent views taken on the point whether the Courts shouldconsider the welfare of the minor in the first instance or sub-ordinate that consideration to the law by which he is governed
For the law is professedly based on a regard for the
welfare of the minor ; assuming that it fails in its purpose, itis not the function of the judicial tribunals to set right theshortcomings of legislators. ”
At page 209—he has incorporated the translation from theSharsh-I—Viqaya which reads, “ The minor cannot be givenan option except according to Imam Shafii (who considers thatthe child has the option of remaining with either parent, and hisview is based on the tradition that the Prophet (on whom and
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ISMAIL, J.—Subair v. Isthikar
whose descendants be peace) gave the child the choice betweenits mother and father, and said, * go to either as you desire ’, andsaid, ‘ Oh God, direct him (the child) rightly, ’ and the childchose its mother.”
Therefore, it will be seen, that the trend of authorities inCeylon has consistently followed the priciples which I havereproduced based on the law applicable to Muslims and whichhave been commented upon by the authorities both in India andin Ceylon to which I have made reference earlier.
The considered views appear to be that after the age of 7 yearsa male child has the option to decide whether he should remainwith the father or the mother, when no doubt the mother’s rightto custody ceases when the male child passes the age of 7. It isalso clear from the authorities that when the Court has tointerpret the law relating to minors among the Muslims the primeconsideration must necessarily be the welfare of the minorconcerned.
The facts in the present case indicate that the father had notbeen concerned in any way with the welfare of the minor frombirth right up to the time he came into Courts asking for thecustody of the child in these proceedings. He had initiated theseproceedings purely to circumvent the order for maintenancemade against him on application made by the mother. It is alsoapparent from the findings of the learned Magistrate that thePetitioner on his own evidence is not in a position to maintainthis child and look after it in the manner the child has becomeaccustomed to. In the initial stages of the submission—counselfor the Petitioner conceded that the Petitioner himself hasmarried again and has children by his second marriage. Thisfactor would indicate that the Petitioner is further burdened onthe paltry income he is in receipt of. Even apart from this fact,it appears to me that taking into consideration the welfare ofthis child and the child’s preference, the custody should be withthe mother. In the circumstances, I am of opinion that therecommendation of the learned Magistrate should be accepted.The application of the Petitioner is dismissed with costs fixedat Rs. 200.
Wijayatilake, J.—I agree.
Walgampaya, J.—I agree.
Application dismissed.