In The Matter Of An Application For A Writ Of Habeas Corpus By Nona Sooja

1930 Present: Jayewardene A.J.

In the Matter of an Application for a
writ of habeas corpus by Nona Sooja.

Habeas corpus-Muslim law-Custody of girl-Marriage of mother-Right of grandmother.

Under the Muslim law the right which a mother has to the custody of a minor daughter is lost on the marriage of the mother to a person not related to the minor within the prohibited degrees.

In such a case the right of custody devolves on the maternal grandmother of the girl.

APPLICATION for a writ of habeas corpus by the petitioner, the mother of a girl of 11 1/2 years. The respondents were the grandparents of the girl.

Bandaranaike (with Hanifa), for respondent.

October 13, 1930. JAYEWARDENE A.J.- The petitioner is the mother of Nona Rahuel, a girl of the age of 11 1/2 years. The respondents are the grandparents of the girl, the first respondent being the petitioner's mother, and the second respondent her father. The petitioner was first married to one Kamer, and the girl Nona Rahuel was their daughter. The petitioner divorced her first husband, the father of the child. She next married one Miskin, who is now dead. She was then married for a third time to one Laxana, who is now living with her. The parties are Malays and are governed by the Muhammadan law. According to the Muhammadan law applicable in Ceylon the mother is entitled to the custody of a girl not merely until she attains puberty but till she is actually married. (Re application of Wappu Marikar and his wife Umani Umma [1 (1911) 14 N. L. R. 225.] followed in Mohamadu Cassim v. Cassi Lebbe. [2 (1927) 29 N. L. R. 136.] ) Two interesting traditions are mentioned in the Hedaya, vol. I., 385 : Abu Bakr, the first Caliph, addressing Omar, who claimed the custody of his child, said, " The spittle of the mother is better for thy child than honey, O Omar " ; and on a similar occasion, a woman applied to the Prophet saying " O Prophet of God ! this is my son, the first of my womb, cherished in my bosom and suckled at my breast, and his father is desirous of taking him away from me into his own care." To which the Prophet replied, " Thou hast a right in the child prior to that of thy husband so long as thou dost not intermarry with a stranger." The custody (hizanat) of a boy until he has completed his seventh year and of girl under the age of puberty belongs to the mother, if alive and not disqualified, and, failing her, to the mother's mother and other females in due order.

A woman otherwise entitled to the custody of a boy or girl is disqualified however by being married to a man

not related to the minor within the prohibited degrees, so long as the marriage subsists. (Wilson's Mohammadan Law, 183, 184.)

According to the Maihaj et Talibin, which forms the basis of the legal literature of the school of Shafei, to which the Ceylon Moors belong, the education of a child can never be entrusted to the mother, if she has married again {Vandenberg, p. 392, French ed. translated by Howard). Baillie in his Digest of Muhammadan Law observes that when a woman marries, she loses the right to the custody of her child( Baillie's Muhammadan Law, Part II.. p. 96).

The rights of all women are made void by marriage with strangers, and when the child has no mother and, none that is entitled and competent to take charge of it, the mother's mother is preferred to all other persons (Baillie, Part I., pp. 431, 432).

According to Tyabji 236, in the absence or the disqualification of the mother, the custody of the child belongs to the mother's mother, the principle being that the custody of an infant belongs as of right to its mother's relations. He mentions the marriage of the mother as one of the disqualifications.

Ameer Ali quotes the Radd-ul-Muktar as an extremely valuable and authoritative work on Muhammadan law and states that the mother is best entitled to the custody (

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