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HASSEN A.R.A. v. MARIKKAR C.L.M.
NLR55V190
1953 Present: H. A. de
Silva J.
A. R. A. HASSEN, Petitioner, and C. L. M. MARIKKAR et al.,
Respondents
S. C. 689 and 465-Habeas Corpus Application
Muslim law-Custody of
children-Preferential right thereto after mother's death.
Under the Muslim law the custody of a male child remains, at least up to his
seventh year, with the maternal relations, the mother being dead, and, in the
case of female children, until they are married.
HABEAS
corpus application.
M. I. M. Haniffa, for the petitioner.
Izadeen Mohamed, for the 2nd respondent.
Cur. adv. vult.
March 31, 1953. H. A. DE SILVA
J.-
The petitioner who is the father of the 3rd, 4th, and 5th respondents asks for
their custody.
The petitioner's wife, A. L. M. Khadija Umma, the mother of these three
children, died in July, 1950. The 1st respondent is petitioner's late wife's
father. The 2nd respondent is a sister of petitioner's deceased wife. The 2nd
respondent claims the custody of these three children on the ground that on the
death of the children's mother she as a maternal relative has a preferential
right to their custody. The learned Magistrate to whom this matter was sent for
inquiry and report has after inquiry sent his report. In his report the
Magistrate recommended that the custody of these three children be given to
their maternal aunt, the 2nd respondent, in whose custody they are at present.
The learned Magistrate after considering the facts placed before him and the
arguments on the law has made his recommendation. The facts as found by him are
these. The petitioner after his marriage to A. L. M. Khadija Umma in the year
1944 lived with his wife in the 1st respondent's house where the 2nd respondent
too was living. The 2nd respondent married after two of the children of the
petitioner were born. She too continued to live in her father's house with her
husband. She has three children. The learned Magistrate has found further that
these three children have been looked after well and that they have not been
subjected to any indifferent treatment which has rendered their living with the
2nd respondent unhappy.
The petitioner is a business man who is away from his home during the day-time
attending to his business and he proposes to place these children now in charge
of his widowed sister. The eldest of the three children is a male and the other
two are females, their respective ages at the date the petition was filed were
6, 41/2 and 3 years. After his wife's death the petitioner was away for sometime
in India. The 1st and 2nd respondents looked after the children from the date of
then* mother's death. The children are quite used to their maternal grandfather
and maternal aunt. There appears to have been a dispute between the petitioner
on the one side and the 1st respondent, his father-in-law, on the other
regarding the estate of the late Khadija Umma which is said to be worth about
Rs. 30,000. Hitherto the 1st and 2nd respondents have brought those children up
at their expense and under their care. As far as the facts go it seems pretty
obvious that the children are quite happy and are being well looked after by the
1st and 2nd respondents.
The next point one has got to consider is the legal position. Mr. Haniffa has
contended that on the death of the mother the custody of the children should be
with the father under the law applicable to Muslims. The parties are Muslims
admittedly of the Shafee sect which is a subdivision of the Sunnis. He cited to
me the following authorities amongst others- 9 S. C. C. 42, 29 N. L. R. 136, 51
N. L. R. 509. I may say that the case reported in 29 N. L. R. does not help the
petitioner. Lyall Grant J. held as follows: " Where a Muslim child was in the
custody of her maternal aunt from her infancy till the ninth year, the Court
will not restore the child to her father's custody, where it is of opinion that
such
a change would be to the
