The National  Supreme Court

Present Matters Circuit

Appeal No.246/2020

Before Judges :

President

 Hon Justice:   Bashraia Ali Ibrahim ElSayed         Supreme Court Judge

Member

 Hon Justice:    Abdel Bagi Ali Ahmed                   Supreme Court Judge

Member

 Hon Justice: Dr. Sitana Abdel Galil Mohammed   Supreme Court Judge

        Applent

//V//

   Respondent  

Nour Eddin Abu

Arwa Kamal El Tahir

-        Personal Matters for Moslems Act 1991(S.123).

-        The  right to visit and take along the child – limits – courts power

Principles:-

1. The right to visit and take along the a child by the party who does not have the custody is subject to the discretion of the court.
2. For a child in the suckling period the proper order should be a permission to visit rather than along the child as the minor may be harassed by being away from this custodian at this stage.

Judgement

Applicant is the father of a daughter aged one year from   his wife, the respondent, who has the custody. He climes to visit and take her along three times a week from 5 to 7 PM. The court of first instance gave him permission for one day a week and respondent appealed before the court of Appeal Khartoum which set aside the judgement and returned the case to the court for reconsideration whereupon applicant raised this appeal alleging that that the law fixes no age for the visit and the taking along of the child and that the purpose of the visit and the taking along of the child is to poster the Relationship and that no harm will ensure from it to the child.

After perusal of the record we find that the visit of the child by his parents is a right provided by the Islamic Sharia and by S.123 of the personal matters Act so that whenever a child is in the custody of one of his parents the other has the right to visit and take along the child for hours or days according to the discretion of the court under S.118 of the Act with the observation of the essentials of custody in that the child should not be subjected to any harm and should return safely to his custody. As the duration of the visit and the taking along is a discretionary matter this court will not interfere according to S.189 of the Civil Procedure Act 1983unless some lnjury to the child results from this visit or from the taking along of the child. 

Returning to the case before us we find that the  judgement is not tainted with any of the defects mentioned in S.179 of the CPA of 1983 like the application or interpretation of the law or an illegality in the judgement or procedure. The child is one year old which is the suckling period and hence cannot dispense with the custodian for any period and therefore the order for taking the child along is improper and the order of the court of Appeal is correct. The order should be for a visit rather than taking along and its should take place after the court of first instance guarantee its safety. Therefore the judgement should be for dismissal of the appeal summarily. 

Bashraia Ali Ibrahim, ElSayed

23.8.2020

Abdel Bagi Ali Ahmed

20.8.2020

 Dr. Sitana Abdel Galil Mohammed

27.8.2020

Final Order:-

1.    Appeal to be dismissed .

2.    Inform parties.

Bashraia Ali Ibrahim, ElSayed

Supreme Court Judge

Present of the Circuit

30.8.2020