Mother has custody for children below seven, Kadhi rules in appeal

BY MWINYI SADALLAH

Children below the age of seven must always stay with their mothers if the parents separate, Regional Kadhi Appeal Magistrate Daudi Khamis has ruled. 

Kadhi Daudi made this observation in a ruling on appeal cases filed separately before the court by a divorced couple, Mahmoud Gulam Ismail of Dar es Salaam and Sabrina Bashir Kanji of Zanzibar. 

In the ruling that was delivered for about an hour from 10.30am on Thursday, Kadhi Daudi said that the age limit was clear on the basis of Islamic law and traditions, including hadith (verbal instructions) of Prophet Muhammad (S.A.W.) in connection with the care of children once the parents are separated. 

The hadith and some writings by respected Islamic scholars maintain that children below the age of seven must be cared for by their maternal parents in case of divorce. 

"The right of a mother to take care of her children is not usurped by divorce. Children will continue living with their mother until they reach the age of seven, when they will have an opportunity to choose which parent to stay with," the Kadhi magistrate intoned.

After carefully reviewing the appeal cases by Sabrina and Gulam, he found that the Mwanakwerekwe District Court magistrate who made the first ruling had erred. He had ruled that Sarah, aged three should live with her father, while Ameir, one year old, was to live with his mother. 

He said in his ruling that both children must be put under the care of their mother, ordering that Sarah should be returned to her mother within seven days. 

"This court has decided that Sarah should be returned to her mother in seven days and the mother should hand over birth certificates and children's passports to their father as well as allow him to see his children at any time he so wishes,” he stated.

“The children would not be allowed to travel anywhere without first securing the consent of the other parent,” he further affirmed, giving either parent 30 days to appeal the appeal ruling. 

Advocate Omar, for the lady, said that the case was clear that his client had to win the case and be allowed to keep both children instead of just one, insisting that the district court had erred. 

Sabrina Bashir Kanji was grateful for winning the appeal and insisted that the ruling should be implemented in the time provided, requesting human rights organisations to help her secure the custody of her daughter from whom she has been separated for nine months. 

She said that she sought to lodge an appeal as she felt that justice had not been done by the district court, after the court met under the Kadhi Sheikh Mustapha Hassan Mwinyi, which ended in her losing the child custody to her father. 

"I ask the government and human rights institutions in Zanzibar to help me gain the custody of my daughter Sarah,” she said. Shedding tears, she expressed the fear that the ruling and papers are often not sufficient to actually secure custody. 

The Kadhi District Court at Mwanakwerekwe had earlier ruled that the children should be separated, one stay with the father and the other with the mother, whereby the father was supposed to return the bride price paid, and other belongings and household wares that she had accumulated. 

SOURCE: THE GUARDIAN (06/10/2012): http://www.ippmedia.com/frontend/index.php?l=46624