Bakari v Jabiri (C.C. 82/1932 (Mombasa).) [1933] EACA 9 (1 January 1933)

### ORIGINAL CIVIL.

#### Before LUCIE-SMITH, J.

## NONA BINTI BAKARI (Plaintiff)

# MAUWA BINTI JABIRI (Defendant).

## C. C. 82/1932 (Mombasa).

Guardianship of minor child—Disqualification under Sheriah— Possession—Interests of child.

$Held$ (29-3-33).—That where the parties disputing the right to the guardianship of a minor child are all disqualified under the law which is applicable the child's interest is to be considered<br>paramount. Held also that in such circumstances guardianship<br>should vest in the party who would, in the absence of such dis-<br>qualification, have the natural

Patel for Plaintiff.

Ross for Defendant.

Patel.—Mohammedan law recognizes natural guardians, failing whom the Court will appoint suitable guardians. Natural guardianship extends in the case of a female up to her reaching puberty.

Referred to Hamilton's Hedaya, p. 138. No persons other than plaintiff and defendant have right to natural guardianship, and Court accordingly must appoint a suitable person, and the mother would be preferred to the aunt. The mother is only disqualified as against other persons who are qualified. Mulla, Frinciples of Mohammedan Law, 6th Ed., 198.

Ross.—Agreed that plaintiff and defendant are the only persons alive who could, but for disqualification, qualify as natural guardians. The Shafei principles are applicable. Minhaj, 392. "The education of a child can never be entrusted to its mother if she has married again."

The Court will not interfere when as admitted neither party has any right.

Patel replied.

JUDGMENT.—In this action two women are asking the Court for the custody and guardianship of one Aisha binti Hassan, an infant child of some five years of age. The plaintiff herein is the child's mother, while the defendant is her paternal aunt, being half-sister to the child's deceased father.

There can be little doubt that the defendant, who at present has possession of the child, obtained such possession by sharp practice.

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It has been held by this Court that both parties are disqualified under Mohammedan law from being the child's guardian.

It has been admitted that no other person is entitled to the custody, and no such other person has come forward with any claim.

That being the present position, it appears to me that in considering the question of custody the interests of the child are of paramount importance, after which the Court should decide on the respective merits of the claimants.

It would appear from the evidence that both the parties are in much the same social and financial position, and it has not been in dispute that the child has received proper care and attention from each of them when living with them respectively.

The principal objection put forward by the defendant is that the plaintiff has used for her own purposes certain funds which she has received from the Administrator General as her infant daughter's share in her late father's estate.

I saw the child herself in Chambers, and after a lengthy talk with her formed the conclusion that it is quite immaterial to her whether she remain with her aunt or return to her mother.

In this case we have two women who are equally incompetent under the Sheria, and it seems to me that the mother, who is the natural guardian of the child, should be given the preference. I base this finding from the statement in the Minhaj, at p. 391: "Where two persons are equally competent in this respect, priority belongs to the nearer." If the child's mother and paternal aunt were qualified by Sheria to have the custody. the Court would undoubtedly decide in favour of the mother.

It having come to the knowledge of the Court that moneys held in trust for two minors, Badi bin Hassan and Aisha binti Hassan, are not being properly safeguarded, I consider it my duty to make the order for possession contingent on the plaintiff depositing the full amount now due and owing to these minors in separate trust accounts at the Post Office Savings Bank, the Deputy Registrar to calculate such amount. No payments out of such accounts to be made without the sanction of the Registrar.

The defendant to pay the plaintiff the costs of these proceedings. (Ross objects to order as to costs.) I may say that I have had the advantage of the learning and experience of the Chief Kathi in this matter, and he is in agreement with the conclusions at which I have arrived.