Case Number

CA 86/63

Date Decided

7-11-1963

Decision Type

Appellate

Document Type

Full Opinion

Abstract

The child in this case was born to a Jewish mother and a Moslem father. According to Jewish law, the child was Jewish, following the mother, and according to Moslem law it was Moslem, following the father. On the death of the mother, the child was placed with its Moslem aunt, but when the father learned that German reparations were payable to the mother he applied to the District Court for the appointment of a maternal uncle as guardian. The Court appointed an uncle as sole guardian and at the instance of the Attorney-General ordered him to place the child in a Jewish institution. The father however, applied to the Sharia Court which decided that both the father and child were Moslems and that the child should be handed over to the father. The Attorney-General and the guardian, after having unsuccessfully contested the jurisdiction of the Sharia Court, did not take part in these proceedings. For some reason, the father nevertheless did not proceed to enforce the judgment of the Sharia Court and instead applied again to the District Court to have the appointment of the guardian set aside and for an order that the child and its property be delivered up to him. His application was denied and he appealed.

Held: The father was the natural guardian of the child whichever personal law applies to either of them. Such natural guardianship did not, however, relieve the court of its fundamental duty of acting always in the interests of the child alone. In a case of "mixed" parentage, the President of the Supreme Court is empowered to decide whether either of the two religious courts concerned or the District Court has jurisdiction, and no party might apply to a religious court without the President's approval; for an application to the District Court no approval is necessary. Any decision made by a religious court with approval of its jurisdiction could not oust the jurisdiction of the District Court. Where a child's religion, as here, could not be certainly determined, the "territorial" principle applied and the child's interests were paramount. There was sufficient evidence before the District Court to show that it was in the interests of the child not to be placed under the guardianship of the father.

Keywords

Constitutional Law -- Equality Before the Law, Constitutional Law -- Parenthood, Jewish Law -- Family Law, Jewish Law -- Rabbinical Courts

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