Principles

·  PERSONAL LAW — Conflict of law — Common custom absent where husband in Greek marriage has converted to Islam — Apply Civil Justice Ordinance, 5.9.

·  SOURCES OF LAW — Family law — Where customs of both parties differ, apply rule of father.

·  CONFLICT OF LAW — Family law — Where customs of both parties differ. apply rule of father.

Plaintiff and defendant were married in the rites of the Greek Orthodox Church Plaintiff converted to Islam and now lives separately from his wife. Plaintiff brought this suit for custody of the children, a girl under 9 and boy over 7.
Held: (i) Although the parties were married in the Greek Orthodox Church, the husband has converted to Islam and there is therefore no custom presently applicable to both parties under Civil Justice Ordinance, s. 5(a) and the court must rule in accordance with Civil Justice Ordinance s.9

(ii) Although both Greek Orthodox Canon Law and Sharia coincide on rules of custody, the father’ personal law Should apply in the Sudan where he occupies such a superior position in the family.

(iii) In accordance with Sharia, custody of the boy above seven goes to the father and the girl under nine to the mother.

Judgment

Advocates: Hanna George…………………………. for plaintiff

                          Ahmed Guma’a ……………………...for defendant

M.Y.Mudawi  P.J.. March 5. 1964 :— On March 27. 1961plaintiff . Nicolas Stephenou jnstituted these proceedings agains difendant Aristea Nicolas Stergiou for the custody of the children of the marriage Stephenou amale child born in August 1955 and Despina Alias mariam a female child born in march 1957 defendant resisted the cliam and the following admissions and issues were framed

Admissions

1.     On October 30, 1954 plaintiff and defendant were married according to the rites of the Greek Orthodox Church.

2.      There is issue of the said marriage; three children, namely, two sons, Stephanou born in August, 1955 and Bassili born in September 1959 and a daughter named Despina born in March, 1957.

Issues:

1. Did plaintiff convert to Islam in October, 1960 ?

(Plaintiff)

2. What is the law to be applied to this case?

(Plaintiff)

3.     Is plaintiff to the custody of his children Stephanou and Despina ?

4.     To what relief, if any, is plaintiff entitled ?

Plaintiff was able to prove his conversion to the Islamic faith beyond any doubt. He produced before the Court Exhibit “A”, lshhad Sharia No. 375/60, Khartoum Sharia Court, dated October 16, 1960, showing that he embraced Islam on October 16, 1960.

The next point is what rules of law are to be applied. Civil Justice Ordinance, s. 5 purports to lay down the rules applicable to matters affecting the personal relations of the parties. The section reads as follows:

Where in any suit or other proceedings in a civil Court any question arises regarding succession, inheritance, wills, legacies, gifts, marriage, divorce, family relations or the constitution of wakfs the rule of decision shall be:

(a) any custom applicable to the parties concerned which is not contrary to justice equity and good conscience and has not been by this or any other enactment altered or- ..abolished and has not been declared void by the decision of a competent Court.”

It must be admitted from the start that in interpreting this section in relation to the facts of the case the Court is aware of the difficulties involved with the conversion of the plaintiff to Islam. A new element of major importance has entered into the domestic relations of the parties, an element which must drastically affect these relations.- Had plaintiff not changed his religion the Court would have applied the provisions of Section 5(a). i.e.. we would have applied the custom applicable to the parties concerned which is not contrary to justice,” etc. The word “custom” was, apart from Bamboulis v. Bamboulis (1954) App. Cas. 76, AC-REV-58-1953, consistently interpreted in this country to include the ecclesiastical rules common to the parties. In .Bamboulis v. Bamboulis, supra, (1954) App. Cas. at 82, Lindsay C.J.., stated: “The Ecclesiastical rules of a Church . . . are in my view incapable of being altered, abolished or declared oid, and clearly not contemplated by the wording of the section to be within the meaning of the word “custom “ “Custom” in its context refers to local custom originating by usage in the Sudan, and is not applicable to imported rules or laws of foreign origin. In my view the personal law of foreigners is covered not by Section 5 but by Section 9 of the Civil Justice Ordinance Bamboulis v. Bamboulis is undoubtedly an unhappy decision which brought confusion to an already confused department of our law. The Court failed to discuss past cases of authority which dealt with this particular point. e g Abdulla Charchaflia v. Maria Bekryareliss AC-APP-12-1934 Hamel v. Hamel AC-REV 88-1936 This failure to discuss the past law with a View to distinguish or to disapprove it reduces the authority of Bamboulis v. Bamboulis and makes it a decision given percurium. Indeed the reasoning of Lindsay. C.J. cannot be said to be very plausible. The non accessibility of the Canon Law is not proved fact as past decisions of our Courts in this branch of the law can tell. The Canon Law can always be ascertained by the Courts through Witnesses well , in the subject. Also the narrow interpretation of the’ word “custom” that confines it to “local custom originating by usage in the Sudan” is not a very persuasive interpretation. especially when it is presented by Judges reared in the common law. I think it is an historical fact that most of the customs that govern land tenure in England were imported by the Normans from Normandy in 1066 and thereafter became the customs of England and were enforced by the Judges as such. The question is not whether the custom originated locally or not; it is whether the people concerned recognize such a custom and look upon it as their own. Again. Canon La.w is not unalterable It can be altered in some countries by certain religious convocation and in others by secular parliaments and legislatures..

However, in the case before me I am of opinion that Civil Justice Ordinance. s. 5(a) as I understand it does not apply. The section contemplates a custom applicable to both parties. In this case the plaintiff is at present a Muslim and the defendant is a Christian and hence no common custom binds them It will be most unreasonable if the Court digs up the history of the marriage and then proceeds to decide matters like alimony and custody by the customs according to which the marriage was celebrated. Oblivious  of the fact that one of the parties has lawfully changed his status and assumed a new religion. It is the present we are concerned with and not the past today the parties have no common custom and the case therefore does not fall within Civil Justice Ordinance. s. 5(a)

This being the case. I now fall back on civil Justice Ordinance, s. 9 and decide the case according to “equity. justice and good conscience.”

According to precedent I have three main sources to draw upon in order to arrive at a decision according to “equity. justice and good conscience.” namely English law, Greek Orthodox Canon Law and  Sharia. Though English law has for long been established as the yard for resold sing disputes in almost all areas of our law. I am not aware of any decision,

Bamboidis apart, in which it was applied in this .area of domestic relations. In the case before me the mother is Christian, and the father is a Muslim by conversion. The mother is of Greek nationality and the father is Sudanese. Both parties are living in the Sudan (Khartoum) and there is ‘no evidence to indicate that either of them is intending to leave the country. In the circumstances neither of them could be presumed to have at any time contemplated that English law might be applied to matters incidental to their domestic relations, e.g., custody. Hence it will be unfair and unreasonable to subject them to its rules. Apart from the contemplation of the parties I am of opinion that English law in this particular case is alien and will not lead to a fair and just solution of the problem. The position of domestic relations in this country and indeed in the Middle East is, unlike other legal relations, unique and completely different from its opposite number in Europe or, say, the United States of America. A commercial transaction or a policy of insurance may have the same terms and the same implications all the world over, but the attitude to marriage, divorce, custody, etc. in this country is certainly not comparable to the attitude in a Western country. In the East domestic relations are closely interconnected with religion, while in the West they are, at least today, secularised. In view of this I conclude that English law could not and should not be applied in this particular case.

My next areas of choice are the Greek Orthodox Canon Law and Sharia. I am happy to point out that the rules of both are identical as far as custody is concerned. At the inception of the marriage I can say both parties had had the rules of the Greek Orthodox religion in mind, but today at least the father holds different views. The father is a Muslim and he prefers to be judged according to the rules of Sharia. In a country like ours where the family connexions are close and, where the father occupies a position only excelled by the position of the Roman Pater familias, it is only logical that any faith professed by the father is bound to mould and control the way of life of the children and to go a long way in shaping their future concepts and beliefs. Besides, Sharia is the accepted law of domestic relations of the community in which the children of this marriage are going to be brought up. This being the case, I must say, confronted with the choice between the Greek Canon law and Sharia, I have to choose the latter. On this point the rules happened to be the same.

Now that the point touching the choice of rules is settled, I proceed to ascertain the rules of Sharia. As Sharia is part of our law its rules can be judicially noticed and no expert evidence is required. According to Sharia the mother has the right of custody up to the age of seven in the case of male children and up to the age of eleven in the case of females. The Court has a discretion to extend these periods to nine and eleven years respectively, if the interest of tht child so demands. Thereafter the right to custody goes to the father. See Abdel Wahab Khalaff, Shoria Personal Law 207 (2nd ed. 1938) (Arabi).

In this case the male child Stephanou was born in August, 1955 and Despiria in March, 1957, i.e.. Stephanou is today above seven and Despina is by far below nine. In an attempt to find out the real interest of the children, I visited the houses in which plaintiff and defendant lived. They lived in different houses. I also interviewed the children and spoke to them in the absence of the parents as well as in their presence. The children wanted to stay with their mother.

However, the conclusion I came out with is that I see no solid reason to persuade me to believe that any one of the two parties is the more suit able to look after the interests of the children. Hence, everything being equal, the age limit should be the final test.

As this is a custody case and not a divorce case, the Court declines to pronounce on the validity of the divorce, for it is not essential for the decision of the main claim.

In view of the above it is ordered that plaintiff should have the custody of the child Stephanou and that Despina should remain in the custody of her mother.

No order as to costs.