Mbegu v. Chauzi (PC) Civ. App. 79-D-70; 23/9/70; Pandu Ag. J.

 

Mbegu v. Chauzi (PC) Civ. App. 79-D-70; 23/9/70; Pandu Ag. J.

In proceedings by the respondent/wife for maintenance of her children, a dispute arose as to the custody of the children. The appellant / husband alleged that the respondent decided to start planting crops on the strip. The appellant and the owner of the land objected to this move. Whereupon the appellant took the dispute to court. The Primary Court held that the respondent

            Held: (1) “In Muslim law it is a rule in cases of separation that children should remain in the custody of their mother till at the age of seven. But even at this age it is not flatly that the custody is to  return to the father, but the law directs that after seven years a child should be asked, before the two parents, as with whom is he/she going to live and whoseever custody the child choses it is to be accepted. In case of mother’s death or say mental defect; this right is to be transferred to the maternal side, to mother’s sister or mother etc. on the other hand, the principle of interest of child’s welfare demands that children in general and particularly those under the age of seven should be in the custody of their mothers. It is the duty of thus Court to positively have in mind when deciding any matter in which children’s well being is in question. The age of the children involved in this case are, the elder about 5¹/₂ years and younger just over a year.” (2) Children to be in the custody of their mother.