[1952] EACA 318

# DIVORCE JURISDICTION

#### Before Connell, J.

#### BIBI binti AHMED, Petitioner

$\nu$ .

### MOHAMED bin ALI LAHAMUDI, Respondent

## Cause No. 9 of 1951

Mohammedan law—Custody of minor after parents divorce.

Custody of a daughter was claimed by her mother in the following circumstances: —

The parents were married by Muslem law in September, 1943. The daughter was born in 1944 or early in 1945. After September, 1944, the mother ceased to reside with the father, who went to Mombasa. The daughter was looked after by her mother's parents. In 1947 the mother and father were divorced and the mother went and lived with a man for some years and subsequently left him.

The agreement as to the custody of the daughter at the time of the divorce was in dispute. The father remained and in 1950 obtained his daughter from hergrandparents and refused to return her.

Held (24-3-52).—(1) Under Mohammedan law if a minor is old enough to form an intelligent preference, the Court will consider that preference. The child would therefore remain in her father's custody.

(2) The father cannot remove the child to such a distance that the mother cannot, see it daily if she so chooses.

Petitioner in person.

Tank for respondent.

JUDGMENT.—A petition is filed by the mother of a child for return of the daughter in the following circumstances:-

The petitioner married the respondent by Moslem marriage on 30th September, 1943. The daughter must have been born in 1944 or early in 1945 as she is. admitted to be aged seven or over. After September, 1944, the petitioner ceased to reside with the respondent, the respondent having gone to Mombasa, and the child was looked after by the petitioner's father and mother. In 1947 the petitioner and respondent were divorced and about that time the petitioner lived with one Salimu for some years and subsequently left him.

What happened at the time of divorce is contested; the respondent's caseis that it was agreed between them both that petitioner should have custody of the child until she attained the age of seven and that thereafter the child should be restored to the respondent. Whether that was the agreement or not in my view this case falls to be decided upon the principles of Mohammedan law governing the question as to who is properly entitled to custody of the child; if the mother did enter into that agreement she has decided to back out of it.

Now the Registrar of Mohammedan Marriages has given evidence that this agreement merely follows the law and custom applicable to the Shafei sect of which at any rate one party is a member. I am by no means satisfied that that

is necessarily the case, as it is stated at page 248 in Amir Ali's Mohammedan Law that "The Fatawa Alamgiri which gives the opinion of several jurists, points to the conclusion that the right of Hizanat terminates when the girl is marriageable". Be that as it may a further governing principle as to the exercise of the right of "hazira" is stated at page 253. "The qualifications necessary for the exercise of the right of Hizanat are the following: (1) that the Hazari should be of sound mind, (2) that she should be of an age which would qualify her to bestow on the child the care which it may need, (3) that she should be well conducted, (4) that she should live in a place where the infant may not undergo any risk morally or physical." Further at page 250 it is stated "as a general rulethe right of Hizanat has in view the exclusive benefit of the infant... by a consideration of what should be best for the child as a Muslim child. Further at page 260 it is stated "The right (Hazinat) is founded primarily for the benefit of the child and is to be exercised by those relations who are most likely to bestow care and kindness on it."

Now what happened as I find was that the petitioner left the child in her own parents house whilst she went to live with one Salimu, hardly a desirable course of conduct if she wishes to keep the child till the child is of marriageable age. The respondent father has lawfully remarried and has four other children. He decided, however, to send Hadida to Lamu to live with other relations. Some time in 1950 the respondent came to Nairobi, told (as I find) his father-in-law and mother-in-law that he wanted the child to stay with him for two months, this consent was given but instead of returning the child he has kept the child ever since; according to the petitioner's father the child lived under the custody of himself and his wife until it was so taken away. Regarding the agreement to keep custody of the child till seven and then return it to the father I believe the respondent that that was the agreement entered into and I do not believe the petitioner when she says she never entered into such an agreement. On the other hand I believe the petitioner and her witnesses that they did not agree to the respondent taking the child away in 1950 (before it had reached the age of seven).

As to how I should decide the case, if the petitioner were altogether a fit and proper person I should seriously consider ordering that she had custody of the child till she reached marriageable age but in my view I am bound to consider yet on another aspect of "hizanat" and that is "if the minor is old enough to form intelligent preference, the Court may consider that preference". This principle seems to me to be entirely consistent with Mohammedan law. See Minhaj Talibin, 1919 edition, page 392. The child herself has forgotten her mother, is intelligent and well dressed and being well looked after. I am satisfied that taking all relevant matters into consideration, it will be more in the child's interest and in accordance with her wishes for her to remain in her father's custody. The father, however, in my judgment has no right to take away the child to Lamu, as it would be next to impossible for the mother to visit her there. Amir Ali at page 261 states the father cannot remove the child to such a distance that the mother cannot see it every day if she choose." I order that the child remain at Mombasa in the custody of her father and that the mother may visit her as and when she chooses. The petition is therefore dismissed.

Regarding the cost of the case the father took away the child before he was entitled to. I think it would be unfair to saddle the petitioner with costs Each side will pay their own costs.