Paulo John Iddy v. Mashauri Milanga, (PC) Civ. App. 117-D-67, 4/12/67, Biron J

Paulo John Iddy v. Mashauri Milanga, (PC) Civ. App. 117-D-67, 4/12/67, Biron J

Plaintiff had an affair with defendant’s daughter during which three children were fathered by him. They eventually quarreled and the daughter returned to defendant’s house. Plaintiff sued for custody of the children. On appeal to the District Court, the magistrate described the local customary rule that children born in any manner are the property of the woman as outdated. He also ruled that custody of the father was in the interest of the children. The local law was that of the Makonde tribe and was apparently applied although plaintiff was an Msukuma.

            Held: (1) The rule that the mother should be awarded custody of illegitimate children is not outdated and, indeed, is found in “more modern sophisticated societies.” (2) There was no evidentiary support for the finding that it was in the interests of the children to award custody to the unmarried father when the mother had returned to her father’s house. The order of the primary court in favour of defendant was restored.