JUDGMENT OF ARCHER J.
The parties in this suit were customarily married for about fourteen years before the marriage was dissolved on 2 March 1966. There were four children born during the marriage. When the wife was leaving the matrimonial home at Nyakrom after the dissolution of the marriage, she took away with her the two younger children, namely, Kofi Gyasi Mansu then four-and-a-half years old and Kwasi Addae Mansu then two years and two months. The husband after an unsuccessful attempt to regain custody of the children issued a writ of summons at the Swedru District Court claiming from the wife and the wife's new husband called Dravie, custody of the two children. When the matter came on for hearing Dravie was struck out from the suit. The wife's contention was that the two children were the issue of an adulterous association with Dravie while her marriage with the husband was subsisting and that Dravie was the father of the children. She maintained that after seven years of marriage when the first two elder children had been born the husband became impotent and by mutual agreement the husband entreated her to stay in the matrimonial home and call him uncle and, presumably with unbridled licence to her, to satiate herself sexually with paramours wherever they may be found. The wife registered the names of the two children in the names given them by the husband. The husband revealed what wealth he had amassed for the benefit of all the four children and that although he had not re-married, he had servants in his household who could look after these two children. After having heard Dravie a witness for the wife and addresses by counsel for both parties the learned trial magistrate granted custody [p.526] of the two children to the husband. In support of his decision the learned trial magistrate quoted from Dr. Danquah's Akan Laws and Customs at p. 187:
"as regards the custody of children in general, the law is clear on the point. A child belongs to his father — or rather to his father's household, and so long as the child remains with his parents his custody is in the hands of the father. A mother cannot take a child away from the father. If the child is young the father may be ordered by Tribunal to leave it in the nursing hands of its mother. After the first two or three years of infancy a father can always claim possession of his lawful child."
The wife being dissatisfied with the decision appealed to this court. I shall henceforth refer to the
