Miss Asia d/o Amiri v. Ahmed s/o David, (PC) Civ. App. 67-A-66, 21/3/68, Seaton J.

Miss Asia d/o Amiri v. Ahmed s/o David, (PC) Civ. App. 67-A-66, 21/3/68, Seaton J.

Plaintiff, the former wife, sued defendant, the former husband, for custody of a child. Plaintiff and defendant eloped in 1961 after defendant, a Christian, had agreed to adopt plaintiff’s Muslim faith. At that time, dowry was paid according to Pare customary law, but they were not married until over a year later, and the child was born in the interim. The marriage was performed according to Islmic law after defendant conversion. The parties were divorced in 1966. At the time of the suit, defendant had remarried but plaintiff had not, and the child was living with defendant.

            Held: (1) According to Islamic law if a man commits zinaa (fornication or adultery) the child is considered to be the child of the mother only. However, a child is legitimate if born as a result of a regular or irregular marriage (the latter being a marriage prohibited because of difference of religion ) or by “acknowledgement.” [Citing Mulla Principles of Mohamedan Law, (15^th ed. 1961) p. 282]. (2) According to Pare customary law, “A father has the right to legitimate his illegitimate children at any time by marrying their mother.” [S. 181 A of the Law of Persons, G. N. 279 of 1963, as applied by Local Customary Law (Declaration) (No. 2) Order, G. N. 130 of 1964]. (3) Since it appears that defendant has legal custody under both Islamic law and Pare customary law, and because it is in the best interests of the child, plaintiff’s appeal must be dismissed. The Court stated, obiter, that had defendant not remarried, considerations concerning the welfare of the child might have warranted a different result.