Ali v Ali (C.C. 44/1929.) [1952] EACA 51 (1 January 1952)

## ORIGINAL CIVIL.

Before THOMAS, J.

## HAMISI BIN ALI

$v$ .

## MARIAMU BINTI ALI.

## C. C. $44/1929$ .

Guardianship of children-law to be applied when parties are Mohammedans-effect of misconduct upon right of mother to have custody of her child.

Held: - That questions of guardianship are determined according to English Law.

JUDGMENT.—By his plaint the plaintiff Hamisi bin Ali seeks to obtain the custody of a girl Fatuma, who has been for some years past and is still in the custody of her mother, the defendant. on the grounds that her mother is a prostitute, is leading a bad life and may teach the child bad ways.

The plaintiff alleges that his brother Mukona was the father of the child. Mukona has been dead for some three years during which time the child has been in the custody of the mother. The plaintiff further alleges a verbal will made by Mukona to the effect that the child should not live too far away from the plaintiff. There is no documentary evidence in the case.

I am not impressed by either the reliability or the veracity of the plaintiff or his witnesses. I can place no reliance on the statement of the plaintiff as to the making of the Will. He has not pleaded it. Othman who was stated to have been a witness to the utterance of the will made no reference to it. Accordingly 1 reject the suggested existence of such a Will and do not judge it necessary to consider what, if any, effect a verbal Will might have.

Although, as I have said, I am not impressed by the plaintiff's evidence, I will assume for the sake of argument that the plaintiff is a brother to Mukona who was married to the defendant and that the girl Fatuma was a child of that marriage. The defendant admits that she is living with one Maneno and has so lived for a number of years. From the statements made that the marriage between Mukona and defendant took place some thirty-five years ago the defendant must be and she appeared to be a woman of advancing years. Maneno who was in Court but did not give evidence also appeared to be a man about fifty.

Questions of guardianship are determined according to English law see Civil Appeal No. 20 of 1923 Shariff Abdullah bin Mohammed v. Zwena binti Abedi. Upon the death of the father the mother has a common law right to the custody of a child of tender years as natural guardian, unless she has forfeited it by misconduct, see Halsbury, Vol. 17, section 255, p. 108.

The misconduct alleged against the mother is that she has lived as the wife of one Maneno for some years and that she might spoil her daughter by letting her for immoral purposes. The only reason for the last suggestion given is that she at one time took her to the Ukamba country near Machakos. There is no evidence of any ill-treatment, any unkindness or any illteaching of the child. There is no suggestion that the mother is a common prostitute (see R. v. De Munck (1918), 1 K. B., 635), or that apart from living with Maneno she is living an evil or immoral life. From the evidence given in the case it would seem that a present of goats or a small sum of money presented to some relative or member of a tribe would satisfy all requirements of marriage. It must also be remembered that the defendant and Maneno are persons of advancing years.

Under such circumstances I am unable to find that the defendant has been guilty of such misconduct as would justify the Court in decreeing that she be deprived of the custody of her child.

The suggestion of the plaintiff that she be sent to a house belonging to him where there is no woman residing would not meet with my approval. It is true that he offered to take the mother as well. Even if the mother were prepared to go it would be absurd in one sentence to deprive the mother of the custody of her child and in the next to decree that the custody of the child should be given to the plaintiff provided that the mother lived with the child.

Nothing has been shown to my satisfaction which would warrant my taking action under Ordinance XXVII of 1926, s. 8.

The plaint must therefore be dismissed with costs.