Mahfudh v. Salehe (PC) Civ. App. 54-D-69; 20/11/70; Makame J.

 

Mahfudh  v. Salehe  (PC) Civ. App. 54-D-69; 20/11/70; Makame J.

        At the time when the appellant/husband and respondent/wife divorced in 1968 they had five children of the marriage aged 12, 9, 6½, 4 and 2½ years respectively.  The children stayed with the appellant after divorce without the respondent objecting. Appellant then wanted to take the children to Arabia. Whereupon the respondent objected and went to court.  It was not disputed that the appellant’s mother in Arabia was very old and blind and that the appellant was a busy businessman.  The trial court and District Court refused to allow the appellant to take out the children. The District Court awarded custody of the last three children to the respondent in spite of appellant’s argument that since respondent    had re-married, she had lost all her rights to custody. On appeal it was argued that the District Court had erred in awarding custody, a relief that the respondent had not asked for

         Held: (1) “I agree that according to Mohammedan Law a divorced woman looses the right of custody of her children if she marries a person who is not related to the minor within the prohibited degrees. The responded has re-married, I have no  doubt, however, that at least in this country even when children are the fruit of an Islamic association the welfare of the children is of paramount importance. I respectfully agree with the view expressed by Mustafa J. (as he then was) in SHELL MOHANA vs. ASHURA GULAMRASUL, Dar es Salaam (PC) Civil Appeal 122 of 1969. Also both the learned authors Mulla and Fyzee would generally seem to endorse this view.”  (2) “I suppose that the District Magistrate’s order was so as to ensure that the children were not taken away to Arabia.”  (3) “I think that the more reasonable course would be to order, and I so order, that in the interests of the five children they should not be taken out of Tanzania before they are     sixteen.  The evidence on record suggests that they have never been out of Tanzania before and if they went to Arabia they would feel lost in what may be strange surroundings to them.  In the meantime the appellant, that is the father, should have the custody      of all the children and the mother should have reasonable access to them. If the appellant should go out of Tanzania before the children are sixteen the respondent, that is the mother, should have the custody of the children until the appellant returns to Tanzania.”  (4)  “For the avoidance of doubt, after the children have attained the age of sixteen they may not be taken out of the country against    their personal wishes.  (5)  Appeal allowed in part.