Case Number

CA 127/52

Date Decided

7-23-1952

Decision Type

Appellate

Document Type

Full Opinion

Abstract

The parents of a girl of five years of age agreed in the course of divorce proceedings that the child should be placed in an orphanage, and that both parents should be entitled to visit her there. The mother remarried, and subsequently applied to the District Court for custody of the child on the ground that it would be in the child's interests that she should live with her mother. The father entered an appearance, but failed to file a defence, and the District Court, after considering the merits of the case, dismissed the application. The mother appealed and contended that, according to Jewish law, she was entitled to the custody of the child, and that as the father had failed to file a defence, the court was bound, under Rule 134 of the Civil Procedure Rules, 1938, to enter judgment in her favour.

Held, dismissing the appeal:

(1) Rule 134 gives a discretion to the court either to dismiss the case, or to deal with it, and in the circumstances of the present case the District Court had acted correctly in dealing with the matter on its merits.

(2) The first duty of the court in matters of custody is to act in the best interests of the child, and although the general rule in Jewish law is that a small daughter should remain with her mother, this rule is not absolute

(3) In the circumstances of the present case the District Court had acted correctly in departing from the rule, by not granting custody to the mother.

Keywords

Administrative Law -- Judicial review, Family Law -- Divorce, Family Law -- Parenthood

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