[1942] EACA 2

# ORIGINAL CIVIL

# BEFORE LUCIE-SMITH. J.

### NANA BINTI MZEE, Plaintiff

#### $\mathbf{v}$

## MOHAMED HASSAN. Defendant

# Civil Case No. 65 of 1932

Infant—Child of Mohammedan parents—Guardianship—What law applicable.

Held (5-1-42).—Questions of guardianship of minor children of Mohammedans are to be determined by the Courts of the Colony according to English law.

The facts appear from the ruling.

Khanna for applicant.

### Sorabiee for respondent.

RULING.—In the present ruling we have to deal with the question of what law is applicable to the custody of children in this Colony.

It may be of interest to sketch briefly the history of this litigation.

On 10th March, 1932, the plaintiff in the action filed her petition whereby she prayed for the custody of the child Asha binti Mohammed.

On 23rd March, 1932 the petition was heard before me, the petitioner (the child's maternal grandmother) appearing in person and the respondent (the child's father) being represented by Mr. Finch. At the close of the petitioner's case the respondent gave evidence and called the Registrar of Mohammedan Marriages to give evidence as to Mohammedan law. I granted the prayer of the petition and gave the following reasons: — "The point to be decided is a question of the Mohammedan law as regards the custody of children. I have had the evidence of the Registrar of Mohammedan Marriages, himself a Sheikh, and have referred to the works of Sheikh Abdul Kadir of Aden and the Minhaj et Talibin. They appear to clearly lay down that the maternal grandmother of the child is the proper custodian up to a certain age in the absence or disability of the child's mother. I have been referred to the work of Mr. A. D. Russell but I am inclined to think the explanation given by the witness of section 1062 is correct."

From that decision no appeal was lodged but on 3rd September, 1932, the respondent applied to have the order made on 23rd March, 1932, reviewed. The affidavit in support of that application set out inter alia that he was a Somali by birth and the petitioner a Masai and that it was for the benefit of the child that he should have the custody. That application was adjourned into Court and heard on 20th September, 1932. Mr. Hopley appeared for the then applicant, the then respondent appearing in person. Mr. Hopley in his opening dealt with Mohammedan law and called two witnesses learned in Mohammedan law. All the evidence both for the then applicant and the then respondent went to show the fitness or unfitness according to Mohammedan law of the then respondent.

My order which appears at p. 11 of the record concludes: $-$ "No evidence has been produced before me which to my mind would justify me in depriving the grandmother of her rights under Mohammedan law to the custody of her grandchild. The application is dismissed with costs against the applicant."

No attempt was made to appeal from this order and there matters rested until 26th March, 1941 when Mr. Khanna acting for the present defendant applied by way of Originating Summons "that the custody of the above-named infant Asha binti Mohammed may be committed to the said Mohammed Hassan during minority or until marriage or until further order." Paragraph 11 of the affidavit in support of the Originating Summons reads as follows: — "That I am advised and verily believe that according to Mohammedan law while prior to the age of puberty the said Nana binti Mzee (the present plaintiff) had a preferential right to the custody of the above-named Asha binti Mohammed she has no further right to the custody of the such child".

After argument the Originating Summons was dismissed on the 5th July, 1941, on the grounds that the procedure adopted by the present defendant was wrong. From this dismissal there was an appeal to His Majesty's Court of Appeal for Eastern Africa.

In dismissing the appeal (C. A. No. 13 of 1941) the learned President stated "The Supreme Court originally made an order giving the custody of the child to the child's grandmother. This order was proper and in accordance with Mohammedan law". I take it that that statement must be taken as obiter as no question was raised in the appeal as to what law was applicable.

Having failed in the Court of Appeal, Mr. Khanna acting for the defendant herein returned to the attack and on the 11th September, 1941 took out a notice of motion asking for an order that the order of this Court dated 23rd March, 1932. be varied and that the custody of the said child may be committed to Mohammed Hassan. The application is made "for the reason that, as held by this Honourable Court, the guardianship of the petitioner expired when the child attained the age of seven, and thereafter the guardianship belonged and belongs to the respondent according to the principles of Mohammedan law".

So far as I am aware this Court has not held in this matter that the guardianship of the petitioner expired when the child reached the age of seven years.

Raragraph 3 of the present applicant's affidavit in support is incorrect. Paragraphs 11 and 12 of the affidavit deal with Mohammedan law and it is only in paragraphs 13, 14 and 15 that it is for the first time contended that the question of custody must be decided by English law.

I must confess that I was somewhat startled when this proposition was put before me so late in the day.

In Mbaruk bin Diwansap v. Hamsini bin Jumbe Kimemeta, 11 K. L. R. 56 Pickering, J. held that Mohammedan law was applicable to the custody of a marriageable girl.

In Hamisi bin Ali v. Mariamu binti Ali, 12 K. L. R. 51 Thomas, J. held, following the decision in Civil Appeal No. 20 of 1923 Shariff Abdullah v. Zwena binti Abedi, that questions of guardianship are determined according to English law.

In Fazalan Bibi v. Tehran Bibi, 8 E. A. L. R. 200 the Court of Appeal upheld the decision of Guthrie Smith, J. that he had jurisdiction to make orders for the custody of children and their property but that the jurisdiction is exercisable according to English and not Mohammedan law.

On the authorities it is I think clear that questions of guardianship are to be determined according to English law and I so hold.