Yasin Osman v. Kulthum Ali Kara. Misc. Civ. App. 20-D-68, 19/3/69, Georges C. J.

 Yasin Osman v. Kulthum Ali Kara. Misc. Civ. App. 20-D-68, 19/3/69, Georges C. J.

“This matter is now before the High Court for the second time. On 14th June, 1968, I delivered a ruling on the issue as to whether or not the district court had jurisdiction to entertain an application by a divorced Muslim wife for the custody of the children of the marriage and their

maintenance. I then held that the Court did have jurisdiction, though normally such suits should begin in the Primary Court. The action proceeded, and on 26^th October, 1968, the Senior Resident Magistrate, Dar es Salaam, delivered judgment awarding custody of all the children to the respondent [i.e. the wife], the females until the age of 9 and the males until the age of 7. He fixed maintenance at Shs. 300/- per month and ordered the appellant to pay costs. From this judgment the appellant has appealed.

Held: “There was much argument as to whether the law application in this case should be Islamic law or the ordinary law of contract. It was argued that the suit was framed as if in contract on a document signed by the appellant at the time of the divorce, in which he agreed that the mother should have custody of the children and that he should pay maintenance for them. ….. I do not accept this argument. In any event, my view is that Muslim law is applicable, because it is the personal law

of both parties and it is also the law under which they were married and divorced. The point, however, is academic, because whether one applies Islamic law or the common law as received into Tanzania and adopted, the paramount consideration in all such matters is the welfare of the children involved. The matter was decided in Zanzibar as far as the Shias were concerned in Kassam Ladha v – Khatija binti Abdallah sheriff (1899) 1 Zanzibar Law Reports 98. There the custody of a female child who had reached the age of 7 was in dispute. The Judge gave custody to the mother, a divorce, holding that “Islam regards largely the interests of the child and especially that of a divorce”….. The parties there were Shias, but the law is the same with the Sunni sect. The Zanzibar case was quoted with approval in Abdul Wahid-v-Nabab Begum binti Hasandin (1933) 1 T.L.R. 570 …… The Judge held that even where the mother had agreed not to ask for custody, such an agreement was contrary to the policy of the law and unenforceable. In more recent times, Biron J., on 2^nd May, 1968, in Khadija d/o Abdallah –v- Saidi Omari (PC) Civil Appeal No. 89 of 1968, Dar es Salaam, held that in custody matters under Islamic law, the welfare of the child was the primary consideration. [See: (1968) H.C.D. n. 248]. The principle seems well established and is eminently sound. No reference is made to that principle in the judgment of the learned senior Resident Magistrate …. The decision appears to be based firmly on the Islamic rule that mothers should have custody of their male children till age 7 and their female children till age 9. There is good reason for thinking that this very rule is only a particular application of the general rule, since normally children of tender years need a mother’s care and attention, more than those who are capable of looking after themselves ….. I am satisfied that the learned Senior Resident Magistrate did not direct himself fully on the Islamic law on the question of custody”. Judgment set aside and retrial ordered.