Saada v. Hussein (PC) Civ. App.110-M-70; 6/11/70; Mnzavas Ag. J.

 

Saada  v.  Hussein  (PC) Civ. App.110-M-70; 6/11/70; Mnzavas Ag. J.

            The parties were married in 1963 under Islamic Law. In 1966 the appellant/wife left the matrimonial home and went to live with her parents. The respondent/husband made unsuccessful efforts to return her to him. Whereupon in 1969 the respondent started divorce proceedings alleging desertion. The marriage was dissolved by the Primary Court and respondent brought an action claiming custody of two children born while the appellant was away from the matrimonial home. The appellant objected on the ground that the respondent was not the natural father of the children. The respondent was not sure whether the appellant was pregnant when she left him. The Primary Court found that it was likely that the appellant was pregnant when she left the respondent and awarded custody of the elder child to the respondent.  It was also found that the younger child was of a different father and custody was awarded to the appellant. The District Court, applying Islamic Law, reversed and awarded custody of both children to the respondent.

                        Held:    (1)   “Under Mohammadan law, legitimacy is    determined by the date of conception, not by the date of birth. If a   child is born within two or four years (depending upon the particular school of law adhered to by the parties) after dissolution of a Muslim marriage, Mohammedan law presumes the child to be the child of the union. This is a mere presumption and as was held in   ABDALLAH vs. OMARI MIHONDO, 1953, Digest of Appeals from Local Courts, Case No.28, a rebuttable presumption.”  (2) “In the    present case, the two children were conceived and born during a subsisting marriage not withstanding the fact that the appellant was living with her parents at the time. The children are therefore, according to Mohammadan law; of the union.” (3) The two children should be awarded to the respondent. (4) Appeal dismissed.