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Present: Lyall Grant J.
In the Matter of an Application for a Writ of Habeas Corpus.MOHAMEDU CASSIM v. CASSIE LEBBE.
Habeas corpus—Muslim lavs—Father's right to the custody of child.
Where a Muslim child was in the custody of her maternal aunt fromher infancy till the ninth year, the Court will not restore (be 'child tt her father's custody, where it is of opinion that such a.change would be to the detriment of the child's welfare.
PPLICATION for a writ of habeas corpus by the father of amuslim girl.
The facts appear from the judgment.
H. V. Per era (with Sri Nissanka), for applicant.
Hayley, (with Vethevanam), for respondent.
Jupe 15, 1927. Lyall Grant J.—
This is an application for a writ of habeas corpus by the father: of; agirl of about nine years of age. All the parties are Mohamedans.
The child's mother died in July, 1919, and gave the infant-, whowas then about an year old, into the custody of her sister, who is thewife of the respondent. The child'has since that date been in tbecare: of.her maternal aunt, and it is from this custody that her fatherseeks to recover her. Strictly speaking the petitioner's sister-in-lawought to have been made- the respondent to this petition, but ■ therespondent does not press the point.
The matter was remitted to the Police Magistrate of Kandy forinvestigation of the facts, who, after recording evidence, has foundthe following facts to be proved:—“The respondent is a verywealthy and well known man; the petitioner is a man who before hismarriage appears to have had nothing, and who since his marriagehas. run through his wife's dowry and whatever of his property,including his aunt’s jewellery, came his way. Of his wife's dowrythere remain only the houses in Trincomalee street, Kandy, whichare mortgaged to a Chetty.”
He finds that an allegation made by the petitioner that the child spresent custodian belongs to a family of chronic consumptives is nottrue. In regard to an allegation that the respondent is mismanagingthe minor’s estate, he reports that on the evidence it would appearthat but for the respondent the minor’s property would alreadyhave been sold out. He also reports that the father has taken nointerest in .the child.
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The remaining ground on which the applicant asks for the custodyof the child is that his sister-in-law is not entitled to the custody ofthe child as she is married to a man not within the prohibited degrees,and also that a female custodian can only have the custody of afemale child up to nine years, whereas if she attains the age ofpuberty and is a virgin the father can have the custody.
These arguments are founded upon Mohamedan law, and if theyset out correctly the Mohamedan law applicable to this case, theyraise the question how far that law will be applied in cases of thisnature where it would lead to a different result from the ordinarylaw of the land.
The general law in regard to the custody of children is stated bythis Court to be that the father has the right to the custody of thechildren. This view of the law was adopted by this Court in thecase of the Application of Sego Meera Lebbe Ahamado,1 which was aFull Bench case, and I do not think that this decision has ever beenquestioned.
This agrees with the English law, and as Mr. Justice Dias said inthat case:—“According to the laws of all civilized countries theparents are the natural guardians of their children, and as such areentitled to their custody.“
The decision in that case, however, was chiefly directed to the ques-tion whether there was a Mohamedan law in force in Ceylon whichwould deprive a father of his right to such custody, and it was heldthat there was no such law.
Although, however, this is the general principle of our law, it issubject to exceptions where such exceptions are shown to be for thebenefit of the child. That is true not only of the ordinary lawadministered in this country, but also of the law applied to Moha-medans.
In the case of the Application of Wappu Marikar and his wifeZhnmaniumma,2 Mr. Justice Wood Renton held that according tothe Shafei law, which is the Mohamedan law governing the Moors ofCeylon, the custody of a girl remains with the mother not merelyuntil puberty, but until she is actually married.
This view of the Mohamedan law is borne out by what is said bySir Ameer Ali in his book on Mohamedan Law, Vol. 2, p. 294, wherehe says that among the Shafeis a mother is entitled to the custodyof her daughter until the latter is married, but adds at page 297: —“ That as the right of hizanat (guardianship) has in view of theexclusive benefit of the infant, each particular case would begoverned by the doctrine in force among the sect to which the childis supposed to belong; or, if that cannot be ascertained, by a con-sideration of w’hat would be best for. the child as a Moslem child.”
This is the rule followed in Algiers.
1 9C. C. 42.
MohameduCaesim v.Cassie Lebbe
* 14 N. Z. R. 225.
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MokameduCasmn v.Came Lcbbe
There would appear, therefore, to be no essential differencebetween the fundamental principle which guides the Court in deal-ing with the custody of children other than Mohamedans and theprinciple which it follows in dealing with the custody of Mohamedanchildren.
The .grounds upon which a parent’s rights may be interfered withwere considered in England in the case of Regina v. Gyngall.1 Inthat case the Court of Appeal decided that although the mother of nfemale infant aged fifteen had not been guilty of any misconduct todisentitle her to the custody of the child, yet the Court would, ifsatisfied that it was essential for the well being of the child, refuse togive the mother such custody. The facts in that case were in somerespects not unlike the facts in the present case. Lord Esher M.R.said that the Court had to consider the whole of the circumstances ofthe case, the position of the parent, the position of the child, the ageof the child, and the happiness of the child.
The principle there enunciated appears to me to be the same asthat upon which the Courts in Ceylon act. It was the principleacted upon by the Court in. re the Application of Aysa Natch ia* andit appears to be the ruling principle in other cases.
I do not think that this Court has ever felt itself compelled toorder a child to be removed from the custody of relatives who areperforming their duty towards the child in a perfectly satisfactorymanner and to be handed over to the custody of its natural guardian,where the Court- is of opinion that such a change would be tothe detriment of the welfare of the child.
The Magistrate has reported in this case that in his opinion ” thehanding over the custody of the child to the petitioner would affectthe child adversely and strongly work for her unhappiness.” I seeno reason to disagree with his opinion.
The application is refused.
»(1893) 2 Q. B. 232.
5 (1862) Ram. Rep. (1860-1862) 130.