ABDULRAHMAN SALIM MSANGI v MUNIRA MARGARET 1984 TLR 133 (HC)

ABDULRAHMAN SALIM MSANGI v MUNIRA MARGARET 1984 TLR 133 (HC)

Court Court of Appeal of Tanzania - Mwanza

Judge Nyalali CJ, Mustafa JJA and Kisanga JJA

January 17, 1983

B H.C. APPEAL NO. 37 OF 1983

Flynote

C Family Law - Dissolution of Islamic marriage - Issue of custody of children upon

dissolution of marriage under Islamic law.

-Headnote

The appellant and respondent were married in 1975 according to Moslem rites and

their marriage was dissolved in 1982 by Islamic 'talaks' effected by the appellant upon

the respondent. The respondent was granted the custody of two children of the

marriage aged two and five by the Kadhi's court in Zanzibar. The appellant now

objects to the grant of custody of children to the respondent.

D Held: According to Islamic law infants who have not yet attained the age of some

understanding, which is usually taken to be seven, are left in the custody of their

mothers provided they satisfy the following seven conditions.

E (a) the mother must be of sound mind;

(b) she is a free woman, not a slave;

(c) she should have a religion (Islam);

(d) she should have the ability to bring up children;

(e) she should be faithful;

F (f) she has to be single, and lastly

(g) she must have a domicile.

Case Information

Order accordingly.

G Cases referred to:

1. Kassam Ladha v Khatija binti Abdallah Shariff, 1 Z.L.R 98.

2. Kassim bin Mohammed Barwani v Awadh bin Salim bin Awadh 8

Z.L.R. 24.

3. Suleiman Ali Doongersi v Sherrobinti Kanji 1 Z.L.R. 251.

H 4. Fakir Adam v Suleiman Athuman Swahili and (2) Mama Assora 1

Z.L.R. 282.

5. Saleh Mohamed Sachoo v Jenabai binti Dhala Versi 4 Z.L.R. 67.

I 6. Mohamedali Issaji Bohora v Bachuli binti Karimjee H.C. Civ Appeal

No. 16 of 1938.

1984 TLR p134

MUSTAFA JA

7. Salem bin Yeslum v Nuru binti Ahmed & Another 3 Z.L.R. 49. A

8. Salum v Asumini [1969] E.A. 255.

[zJDz]Judgment

Ramadhani, C.J.: The appellant, Abdulrahman, and the respondent, Munira were man

and wife who are now divorced. They were married since 1975 and on 30th October,

1982 the appellant wrote out B three talaks divorcing the respondent. Official

divorce was prepared some time later. I did not have the opportunity to see that one

but it was not necessary for the purpose of this judgment. From the pleadings in the

Kadhi's Court it is evident that the appellant was granted the custody of C their two

children under the arrangement of the official divorce. These two children are Kheri

aged five and Mustafa aged two. Both are boys.

The respondent, Munira, filed a suit before the Kadhi, Sh. Ameir Tajo, Civil Case No.

141/82. She made three claims: first, that she be granted the custody of the two

children as they are infants still; D second, that she be paid the sum of Shs. 450/= per

month for the period of her iddat, and that she be given accommodation for the

duration of her iddat. Shk. Ameir Tajo decided the first and the third issue in favour

of the plaintiff, Munira (now the respondent). The Kadhi decided the second E issue

against her on the ground that as she has been given three talaks she is not entitled to

maintenance.

The appellant now objects to the grant of custody of the children to the respondent.

The appellant has said nothing regarding the maintenance of the children if the

custody is granted to the F respondent. Likewise, the appellant has not objected to

the order of providing accommodation to the respondent. On the other hand the

respondent has not objected to the order of not giving her any maintenance during

her iddat. Thus the appeal is solely on the issue of custody of children only. G

In entertaining this appeal I invited two Sheikhs to advise me. These are Shk. Mussa

Makungi, the Principal of the Islamic School, and Shk. Hamdani Muhiddin. I asked

both parties and none objected to either of the two Sheikhs as assessors. They are my

advisors. Therefore I did not require them to H give their opinion in the open court.

They did so in private. There has been a long practice in this High Court to obtain

such advice in appeals of cases involving Islamic Law. In the case of Kassam Ladha v

Khatija bint Abdalla Sheriff Z.L.R. 98 Cracknall J. said: I

1984 TLR p135

MUSTAFA JA

A ... in recent conversation with a leading local Kadhi he expressed the view that

...

Similarly Sir John Gray, C.J. in Kassim bin Mohammed Barwani v Awadh bin Salim

bin Awadh 8 Z.L.R. 24 at page 27 said:

B I have had the advantage of being able to consult the learned Senior Kathi,

Seyyid Omar bin Ahmed bin Sumeit of the Shafei School on this matter and he is of

the opinion that ...

C There are a number of cases before my predecessors where similar consultation

took place. Therefore I do not think that I have erred in getting their opinion. In fact

I feel that it has been just as well that I have obtained the opinion from people who

are not objected to by the parties and after D the Sheikhs themselves have heard the

whole appeal. However, even if I have erred in not treating the two Sheikhs as

assessors, which I think I have not, still this judgment is not based on their advice

only but on several authorities of this Court on matters of custody.

E The appellant has given nine grounds of appeal. First, that the respondent was a

Christian but converted to Islam upon marriage, hence there is a likelihood that she

might re-embrace her Christian faith again and as such she cannot properly bring up

the two boys according to Islamic rites. Second, that the appellant has a long

experience of bringing-up children as his first wife died leaving F him with six

children. Thirdly, that if the appellant is granted custody the two boys will be in the

company of those other six children. Fourth, that the respondent is not good in

upbringing of children. He has given several reasons to prove this allegation. First,

the appellant said that the G respondent was entrusting the care of the infants to a

paid nurse during working hours and even after office hours she would go on her own

ways. The appellant when he had returned from Ethiopia found Kheri in an

unsatisfactory condition. Secondly the respondent has drinking habits and that H

she had even requested to be sent a bottle of brandy when the appellant was in

Ethiopia. Thirdly, the respondent has been interfering when the appellant was

helping Kheri in reading. Fourthly, before the divorce the respondent had said that

she will do all possible to make the two boys hate the appellant. Fifthly, the

respondent works in the hospital and she is at times on night duties hence I she

cannot give proper care to the children in those circumstances. Sixth, that the

respondent has already been transferred to Dar es Salaam hence she would be

1984 TLR p136

MUSTAFA JA

taking the children away from the jurisdiction of this Court. Seventh, that it is not

true that the A respondent was paying school fees for Kheri at the rate of Shs. 60/=

per month because the appellant used to send to her up to Shs. 3,000/= per month

while he was in Ethiopia. Eight, that the appellant's going to Ethiopia was due to the

call of duty and not because he had failed to look after the children. Lastly, for all the

period in which the respondent had custody of the children he has B not been able

to see them. Various excuses have been put-up to prevent him access to the children.

The respondent has said as follows: First, as to religion the respondent has said that

the appellant himself does not impart any religious instructions or life style to the

children. The appellant does C not look after the religious upbringing even of the

other older children. For example, he does not send them to religious schools. The

respondent said that she was herself undergoing religious instruction. The

respondent also pointed out the ways in which her own divorce was against the D

Islamic Law as evidence of the appellant's religious indifference. However, these are

not relevant to the issue before me and hence I do not deem it necessary to recount

them. The respondent has, therefore, asked that religion is a non-issue. Second,

regarding the issue of up-bringing of the E children, the respondent has said that she

also has a long experience. She said that barely three years after the death of the first

wife of the appellant she (the respondent) got married to the appellant. So she has

helped him bring up the children for eight years. Apart from the care of the children

of the appellant by his first marriage and her own two children, the respondent had

taken F care of her own young brothers and sisters before she married. The

respondent has objected to the claim that these two children will be in the company

of their half-sisters. The respondent has said that only two of the half-sisters are

currently at home and then they will soon get married and in any G case plans are

under way to sent them to the mainland for schooling. But apart from that, the

respondent has submitted that, the half-sisters can never have a better right to the

children than she, the natural mother. The respondent has added that the

circumstances at the appellant's home are not good and pitiful. However, she did not

want to elaborate lest to embarrass the appellant. Then H the respondent has said

that if she was incapable of looking after children properly it is obvious that the

appellant would not have entrusted her with that when he left for two years in

Ethiopia, when he left her not only with these two boys whose custody is in dispute

but also with his own I daughters. At the time the appellant left for Ethiopia

1984 TLR p137

MUSTAFA JA

A they had been married for six years, hence the appellant knew the ability of the

respondent in taking care of the children. As for the drinking habits the respondent

has put the appellant to strict proof of the allegation. The respondent has admitted

that during working hours the children are B under the care of a paid nurse. But

after office hours she is at home with the children and the nurse goes home. The

nurse was not residing within the premises. Only for six months did they have a

nurse who resided with them in the house and at that time the respondent was

receiving tailoring instructions. The respondent did this after the appellant had given

his consent. The respondent C showed a letter from the appellant while he was in

Ethiopia as proof of this. After the instructions in tailoring the respondent attended

cookery classes. Thus the respondent has denied the allegations that after office hours

she went her own ways. All that the respondent did was to allow Kheri to go D to

play with the children of the neighbours just like other children. The respondent also

admitted that she works in the hospital but added that since 1978 she has never been

on a night duty. But besides that when the appellant married he knew of these facts

and therefore the question of night E duties is not new. She added that many

mothers who are employed with the armed forces, for instance, have night duties.

The important thing, she said, was to have a reliable person to be with the children at

night when, as a matter of fact, they do not need any care as they are fast asleep. In

the day time the mother returns home and she is able to be with the children at the

time when they F really need care. As for the sixth ground the respondent has

admitted that she has been transferred to Dar es Salaam. However she had pointed

out that Tanzania is one country and that the Court orders of one part of the Republic

can be executed in the other part. Moreover, both the respondent G and the

appellant are not domiciled in Zanzibar. The appellant came because of employment

and the respondent followed her husband. A day will come when the appellant will

have to return to the Mainland too. In addition the marriage was celebrated on the

Mainland while the divorce was H granted in Zanzibar. Likewise the Zanzibar

Court may grant her custody of the children while she will stay with them on the

Mainland. The respondent has refuted the allegation that she was paying school fees

for Kheri out of the Shs.3,000/= that was sent by the appellant. She agreed that

amount was being sent but with special instructions as to its use. She added that

even after the appellant I returned from Ethiopia she continued paying the fees. The

respondent also said that she was the one who was paying the wages of their servant

1984 TLR p138

MUSTAFA JA

which was Shs.350/= per month. Lastly on the question of access the respondent has

claimed that A the appellant himself causes uncalled for misunderstanding. Once

the appellant wanted the children on a Sunday. The respondent suggested Monday

since Sundays are the only days she can be at home with the children the whole day.

The appellant became angry at the suggestion and left. The other time the appellant

went to fetch the children when they were asleep. The respondent B hesitated to

wake them up as that would only make them troublesome. So she suggested to the

appellant that he go into the house and wait for them to wake up or else he could

return for them afterwards. The appellant rejected both suggestions and instead

waited outside. Within a very C short time of waiting he got fed-up and left. The

respondent added that whether she likes it or not the appellant is the father of the

children and there is no way in which she could deny him access to them.

Sheikh Hamdani asked the appellant what signs makes him think that the respondent

will re-embrace D the Christian faith. The appellant replied that the respondent

since after marriage did not make any efforts to study Islam and added that the

respondent actually converted not because of conviction but for convenience so as to

marry. Shk. Hamdani wanted to know what steps the E appellant took to give

instruction to the respondent on Islam. The appellant replied that he bought some

Islamic books for her to read and made her observe the fast in the Holy Month of

Ramadhani.

The respondent also was questioned by Shk. Hamdani whether she knew of the

conditions of giving custody to a mother. The respondent replied that she was aware

that there were such F conditions but was not aware of what they were. Shk.

Makungu wanted the respondent to elucidate on her statement that the appellant

would one day go back to the Mainland. The respondent said that both she and the

appellant belong to the Pare tribe from Kilimanjaro Region. The only G difference is

that they come from different districts: the respondent hails from Same while the

appellant comes from Usangi but otherwise they speak the same language. She added

that the appellant came to Zanzibar because of employment only. H

The Sheikhs gave me their opinion in private, as I have already said. They said that

according to Islamic Law infants who have not yet attained the age of some

understanding, which is usually taken to be seven, are left in the custody of their

mothers provided they satisfy the following seven conditions. First, the mother must

be of sound mind. Second, she is to be a free woman, not a slave. I Third,

1984 TLR p139

MUSTAFA JA

A she should have a religion (Islam). Fourth, she should have the ability to bring-up

children. Fifth, she should be faithful. Sixth, she has to be single and lastly, she must

have a domicile.

Both Sheikhs are in agreement that there are problems with only three of the

conditions: religion, B marital status and residence. As for religion the Sheikhs were

of the same opinion that it is irrelevant for the time being until such time as the

respondent reverts to Christianity. Shk. Mussa Makungu added that there are mere

suspicions that she will revert but no reasons were given to support them. C Shk.

Hamdani added that lack of knowledge of Islam on the part of the respondent is due

to the fault of the appellant who took no pains to instruct her on the same. Moreover,

the respondent herself has stated that she is now undergoing religious instruction.

The Sheikhs are agreed that should the respondent re-marry her right of custody will

cease and it D will be granted to the appellant. Finally the Sheikhs were agreed

again on the issue of domicile. Both the appellant and the respondents are domiciled

on the Mainland. They are in Zanzibar just for a while.

The opinion of Shk. Hamdani and Shk. Mussa is that the custody be given to the

respondent until E each child attains the age of seven when the preference of each

child will be taken as to with whom he will stay. However, the right to custody will

cease if the respondent renounces Islam or if she re-marries.

As I have said previously I had asked the Sheikhs for their opinion. However, the

decision is on the F Court. I have, therefore, to look into the facts of the matter and

the law applicable.

The issue before me is: who between the appellant and the respondent be given the

custody of the two boys aged 5 and 2 now that the parties are divorced. I have first of

all to determine what is the Islamic Law as applied by this Court in such cases as this.

G The first case I have managed to obtain on custody is that of Kassam Ladha v

Khatija binti Abdallah Shariff 1 Z.L.R. 98. This case was in 1900. Cracknall J. decided

that according to the Shiaite Law a mother has a right to the custody of her daughter

until she attains the age of seven. H She has that right even after the daughter has

attained the age of seven provided that the woman does not re-marry. At the age of

seven the wishes of the child are paramount.

Then there was the case of Suleiman Ali Doongersi v Sherro binti Kanji 1 Z.L.R. 251.

This was in 1906. It was also on Shiaite Law. Lindsey Smith, C.J. following the

judgment of Cracknall, J. in the I already cited case, had this to say at page 253:

1984 TLR p140

MUSTAFA JA

... it is a principle of Mohammedan Law that when it is a question of deciding

upon the lot of a child of A divorced parents the most important point to consider is

the interest of the child itself...

In the case of Fakir Adam v Suleiman Athman Swahili and (2) Mama Assora 1 Z.L.R.

282, Murison, B J. decided that according to Sunni Law a divorced woman has the

right to the custody of her daughter up to the time of puberty and beyond if that is in

the interest of the child. The learned judge following the above two cited cases added

that: C

The parties on each of these cases were Shias, but the decision was to the same

effect as this judgment. I ought, perhaps, to add that Sheikh Smit, who is probably

the best authority on Mohammedan Law in Zanzibar, gave it to me as his opinion that

upon the question of `hizamit' [custody] there is no difference between Shia D and

Sunni Law ...

A similar decision as the above three cited cases was made by Doorly, AG. C.J. in the

case of Saleh Mohamed Sachoo v Jenabai binti Dhala Versi 4 Z.L.R. 67. E

In all these four cases the issue was regarding daughters but here it is sons. But the

law seems to be the same regarding sons. In The Principles of Mohammedan Law by

D.F. Mulla (14th ed.) at page 295 it is stated that a son is looked after by his mother

until the age of seven. Hedaya (Hamilton's F Translation) at page 138; A Manual of

the Law of Marriage by Russel and Suhrawardy at page 320; and Muhammedan Law

(An Abridgement) by Fitzgerald (1931) at 99 and 100 all give the right of custody of

an infant boy to its mother. I believe it is because of this same law that Shk. Ameir

Tajo G gave the custody of these two boys to the respondent and that even Sheikhs

Hamdani and Mussa have so advised me, as already said.

Lindsey Smith, C.J. in Dongersi v Kanji, already cited, at page 253 said: H

As Judge Cracknall was Chief Judge here for twenty years, his decision is

entitled to great respect and sitting as a Judge of equal jurisdiction I do not think I

ought to dissent from his decision. I

1984 TLR p141

MUSTAFA JA

A Likewise Doorly, Ag. C.J. in the case of Sachoo v Versi (already cited above), after

referring to the cases of Ladha v Sheriff and Doongersi v Kanji, said at page 68:

The learned Judges, my predecessors, went carefully into the authorities, and I

am not prepared to disturb (and B I have no desire to do so) a decision which has

been the law of Zanzibar for over thirty years.

C The learned Ag. Chief Justice said that in 1929. I am duty bound, I am convinced,

that I too should concur with their lordships and that I should not disturb the

decision which has been the law of this country and this High Court for over eighty

years now.

Thus deducing from the cases I have cited, and also the expositions of the various

learned authors I D have referred to, the Islamic Law applicable in these Islands

regarding the custody of children is that it is granted to the mother until the child

attains the age of seven years when its wishes are taken into consideration.

However, there are certain conditions precedent to this grant of custody to the

mother. The E appellant has given a number of grounds supporting his objection. I

can conveniently put them into three groups. First, it has been argued that the

respondent is of unsatisfactory conduct and does not deserve being granted custody of

the children. Second, the respondent might renounce Islamic faith and hence cannot

bring-up the boys as Muslims. Third, the respondent will not reside in the F Islands

and hence she will take away the boys from the jurisdiction of this High Court.

As for the first group of objections, no evidence was tendered to support the

allegation that the respondent is a drunkard, she is a loiteror and that as a whole she is

not fit to be given such G custody. The respondent herself has denounced these

allegations of the appellant. Apart from that if the allegations are true it is difficult to

comprehend how the appellant dared to leave the respondent with the custody of all

the children for two years while he was on duty in Ethiopia. H Moreover the

appellant did not point out any thing he found wrong with the children on his return

home.

Let me now turn to the ground of religion. As the learned Sheikhs said this is a mere

suspicion. There is not a jot of evidence that the respondent will renounce Islam. In

the case of Mohamedali I Issanji Bohora v Bachuli binti Karimjee, High Court Civil

Appeal No. 16 of 1938, Law, C.J. had this to say:

1984 TLR p142

MUSTAFA JA

In the interest of children safeguards have been provided. Parents may be

deprived of that custody for A misconduct. The misconduct alleged by the

Appellant is that the Respondent is not bringing up the children as Bohoras.

Of this there is really no evidence. On the other hand, the Respondent says

that the children follow the B Bohora religion and go to Mosque. Although the

Respondent admittedly is living in a Comorian Community, this has not prevented

her from doing her duty towards her children. C

According to the above quoted words a mother still retains her right of custody even

when she lives within a Community of a completely different religious denomination

provided that she brings up the children in accordance with their own denomination.

The case is even stronger where the mother is D of the same denomination except

that there is some suspicion that she might change. As for this ground I am in

agreement with the Sheikhs that when the respondent renounces Islam then her right

of custody will cease.

Lastly is the question of domicile. The respondent has admitted that she is being

transferred to Dar es Salaam. The case of Salem bin Islam v Gnawer banti Aimed and

Another 3 Z.L.R. 49 is on all E fours with the present one. In that case the plaintiff

and the First Defendant had been married and were living in Mombasa. They

divorced and the First Defendant came P. 589 to Zanzibar with their infant daughter.

The First Defendant gave the infant to her sister, the Second defendant, to bring F

her up. Both defendants were married to other men. The Plaintiff sought the

custody of the daughter who was of the age of four at the time. The custody was

granted to the Plaintiff by the Kadhi. The defendants appealed to the High Court on

the grounds that the Plaintiff will take away G the child from the jurisdiction of this

Court. Tomlinson, C.J. and Doorly, J. said at page 50:

With regard to the first point raised in this appeal which is to the effect that

the Kadhi, ought not to have given the custody to the father knowing that he

intended to leave the jurisdiction of the Court, we H are of the opinion that there is

no substance in the contention. The marriage and subsequent divorce as well as the

birth of the child took place on the mainland and, as far as we can see from the

evidence, the plaintiff lives and carries on his trade on the mainland and is a stranger

in Zanzibar. I

1984 TLR p143

MUSTAFA JA

A In fact it seems to us that it was the mother who removed the child from the

place of conjugal domicile and the intended removal by the plaintiff is only a return

to its original home."

B In the present case the parties married on the Mainland and there is their domicile

in fact. It is true that the divorce proceedings took place in Zanzibar. But they came

to Zanzibar simply because of duty and not to change their domicile. Hence for the

respondent to go with the children to the Mainland, just as it was in the case I have

just cited, is not really taking them away from the C jurisdiction of this Court but in

fact she is taking them back to their original and natural home.

However, should I have erred in holding as I do, then under Article 70 of the

Constitution of the United Republic of Tanzania of 1977 and Article 55 of the

Constitution of the Revolutionary D Government of Zanzibar of 1979 a procedure

has been outlined to enable the Courts of the two parts of the Republic to execute

orders of each other in their respective jurisdictions.

May be I should just add that even the High Court of Tanzania has the same stand

that the custody E of a child is with the mother until the age of seven and in general

the welfare of the child should be taken into account. This was the decision of

Seaton, J. as he then was, in the case of Salum v Asumini [1969] E.A. 255.

I should point out here that the parties have put up various submissions as mentioned,

some of F which I have not discussed. I have merely dealt with those material to the

determination of the present appeal.

Therefore, according to the Law of Zanzibar, including the advice of the Sheikhs I am

in agreement with the judgment of the Senior Kadhi, Shk. Ameir Tajo, for the reasons

I have mentioned above. G The custody of the children Kheri and Mustapha is

given to the respondent, Munira, until each of the boys attains the age of seven and

then the wishes of the children will be taken into account as to future custody. The

respondent will forfeit this right only if she re-marries or if she renounces H Islamic

faith. The appellant has access to the children. For the time being he should provide

for them.

Order accordingly.

1984 TLR p144

A