Wakilii

Ahmed v Mohamed (Cause No. 9 of 1951)

East African Court of Appeal · [1952] EACA 318 · 1952 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Petition by mother for return of daughter following divorce
Decision
Child to remain in father's custody at Mombasa with mother's visitation rights preserved

Observed later treatment

No later-treatment classification is recorded for this judgment.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Under Mohammedan law, where a minor child is old enough to form an intelligent preference, the court will consider that preference in determining custody. The court held that the seven-year-old daughter should remain in her father's custody as this was in her best interests and accorded with her wishes. However, the father cannot remove the child to such a distance that the mother cannot see her daily if she chooses. The petition was dismissed with each party bearing their own costs.

Outcome

Child to remain in father's custody at Mombasa with mother's visitation rights preserved

Facts

The petitioner and respondent married by Moslem law in September 1943. Their daughter was born in 1944 or early 1945. After September 1944, the petitioner ceased to reside with the respondent, who went to Mombasa, and the child was looked after by the petitioner's parents. In 1947 the parties divorced. The petitioner subsequently lived with another man for some years. In 1950, the respondent obtained the child from her grandparents on the pretext of a two-month visit but refused to return her. The respondent claimed there was an agreement at the time of divorce that the mother would have custody until the child reached age seven, after which custody would revert to the father. The petitioner disputed this agreement. The child, now over seven years old, had forgotten her mother and was being well cared for by her father, who had lawfully remarried and had four other children.

Issues

  1. Whether the mother is entitled to custody of her seven-year-old daughter under Mohammedan law following divorce.
  2. Whether the father has the right to remove the child to a distance that prevents the mother from daily access.

Orders

  • The child shall remain at Mombasa in the custody of her father.
  • The mother may visit the child as and when she chooses.
  • The petition is dismissed.
  • Each side will pay their own costs.

Rules and key headnotes

Family Law — Custody of Children — Child's Preference Under Mohammedan Law
Under Mohammedan law, if a minor child is old enough to form an intelligent preference as to custody, the court will consider that preference in determining which parent should have custody.
Family Law — Custody of Children — Best Interests of the Child
The right of Hizanat (custody) under Mohammedan law is founded primarily for the benefit of the child and is to be exercised by those relations who are most likely to bestow care and kindness on the child, with consideration of what is best for the child as a Muslim child.
Family Law — Custody of Children — Geographical Restrictions on Custodial Parent
Under Mohammedan law, a father who has custody of a child cannot remove the child to such a distance that the mother cannot see the child daily if she chooses.
Family Law — Custody of Children — Qualifications for Exercise of Hizanat
The qualifications necessary for the exercise of the right of Hizanat include that the custodian should be of sound mind, of an age to bestow proper care on the child, well conducted, and living in a place where the infant may not undergo any risk morally or physically.

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ahmed v Mohamed (Cause No. 9 of 1951) [1952] EACA 318 (1 January 1952)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.