BASNAYAKE, C.J.—In re Liyane Aratohie
1958 Present; Basnayake, C. J., Weerasooriya, J., and Sinnetamby, J.In be B. S. LIYANE ARATCHIES. 0. 997—Application for a Writ of ffabeas Corpus
Habeas corpus—Custody of child—Order made by District Court—Dower of SupremoCourt to interfere—Courts Ordinance, s. 45—Civil Procedure Code, s. 620.
Where a Court has made a wrong decision of fact or law when acting withinthe limits of its jurisdiction, habeas corpus will not he granted for the correctionof such error. Accordingly, the writ will not be granted to vary an order madein a suit for judicial separation, under section 620 of the Civil Procedure Code,with respect to the custody of minor children.
Application for a writ of habeas corpus.
G. Weeramantry, with Sirimevan Amarasinghe, for Petitioner.
H. W. Jayewardene, Q.G., with Lyn Wirasekera, for 2nd, 4th and 5thRespondents.
Cur. adv. wilt.
December 4, 1958. Basnayake, C.J.—
This is an application for a writ of habeas corpus. The petitioner, ateaoher in the Government Boys’ School, Pannala, is the father of the4th, 5th and 6th respondents to this application. The 2nd respondentis his wife who in 1948 sued the petitioner and obtained a decree forjudicial separation. They had six children in all. The District Courtof Chilaw in which the matrimonial proceedings were instituted orderedthat the petitioner should have the custody of one child, a boy, and the2nd respondent the custody of the other five children.
The petitioner now seeks by the present application to obtain for him-self the custody of the 4th, 5th and 6th respondents who had beenentrusted to the 2nd respondent, their mother.
The question for decision is whether the proper procedure for obtainingthe custody of a child entrusted to a parent by a competent court of lawin the exercise of its matrimonial jurisdiction is by way of habeas corpus.
The order for the custody of the petitioner’s minor children was onemade under section 620 of the Civil Procedure Code. That section reads—
“ The court after a decree of separation may, upon application byway of summary procedure for this purpose, make from time to timeall such, orders and provisions, with respeot to the custody, maintenance,and education of the minor children, the marriage of whose parents isthe subject of the decree, or for placing such children under the pro-tection of the said court, as might have been made by such decree or byinterim orders in case the proceedings for obtaining such decree werestill pending, ”
2—J, N. B 8597—1,598 (8/59).
S30BASNAYAKE, C.J.—In re Liyane Aratchie
Now the petitioner is free in law to move the District Court of Ohilawwhich made the order with respect to the custody of his children to varyits order. The Court has power to do so. But without adopting thatcourse he invokes the power of this Court to issue a mandate in thenature of a writ of habeas corpus.
The remedy of habeas corpus is provided by section 45 of the CourtsOrdinance which reads—
“ The Supreme Court or any Judge thereof, whether at Colombo orelsewhere, shall be and is hereby authorised to grant and issue mandatesin the nature of writs of habeas corpus to bring up before such court orJudge—
(а)the body of any person to be dealt with according to law ;
(б)the body of any person illegally or improperly detained in public
or private custody;
and to discharge or remand any person so brought up, or otherwisedeal with such person according to law :
Provided that it shall be lawful for such court or Judge to requirethe body of such person to be brought up in the nearest District Court,Court of Requests, or Magistrate’s Court, and to direct the DistrictJudge, Commissioner, or Magistrate of such court to inquire into andreport upon the cause of the alleged imprisonment or detention to suchcourt or Judge, and to make such provision for the interim custody ofthe body produced as to such court or Judge shall seem right; and suchcourt or Judge shall, upon the receipt of such report, make order todischarge or remand the person so alleged to be imprisoned or detained,or otherwise deal with such person according to law ; and the said Dis-trict Court, Court of Requests, or Magistrate’s Court shall conform to,and carry into immediate effect, the order so pronounced or made bysuch court or Judge in the premises, ”
It would appear that the scope of the mandate in the nature of a writof habeas corpus is not more extensive than the writ of habeas corpus adsubjiciendum known to English law. The English writ is thus describedin Halsbury (Vol. 11, 3rd Edn., p. 24):
“ The writ of habeas corpus ad subjiciendum, which is commonlyknown as the writ of habeas corpus, is a prerogative process for securingthe liberty of the subject by affording an effective means of immediaterelease from unlawful or unjustifiable detention, whether in prison orin private custody. It is a prerogative writ by which the Queen has aright to inquire into the causes for which any of her subjects aredeprived of their liberty. By it the High Court and the Judges ofthat Court, at the instance of a subject aggrieved, command the pro-duction of that subject, and inquire into the cause of his imprisonment.If there is no legal justification for the detention, the party is orderedto be released. ”
BASNAYAKE, C.J.—In re Liyane Aratdiie
In England the writ does not issue except upon material being placedbefore the Court verified- by affidavit that the applicant is unlawfullydetained. In the case of Ex Parte Gorhe1 Lord Goddard C. J. stated—
“ It has always been the law, since it was laid down by Wilmot J.,in giving his opinion on the writ of habeas corpus, in answer to thequestions proposed to the Judges by the House of Lords in 1758, that awrit of habeas corpus is a writ of right and not a writ of course. SeeWilmot’s Notes of Opinions and Judgments, p. 82. That means that,before a writ can issue or leave can be given to apply for a writ, anaffidavit must be before the Court showing some ground on which theCourt can say that the applicant is unlawfully detained. ”
The writ of habeas corpus is also not granted for the purpose of testinga decision made by a Court which has acted within its jurisdiction. Thereare other remedies for that. Where a Court has made wrong decisions offact or law when acting within the limits of its jurisdiction habeas corpuswill not be granted for the correction of such error. See B. v. Command•ing Officer of Morn Hill Camp, Ex Parte Fergusona. Lord Reading C.J.said in that ease—■
“ If the jurisdiction exercised by the Magistrate is a jurisdiction whichhas been conferred upon him by the statute, then, notwithstandingthat he may have come to a wrong decision on the facts or upon thelaw, it is clear that his decision cannot be questioned by this procedure.”
In the instant case the petitioner does not allege that the learned Dis-trict Judge had no jurisdiction to make the order he made with respectto the custody of his children. He only seeks to have the order varied.For that he must go to the District Court which has jurisdiction to varythe order upon sufficient facts being adduced to the Satisfaction of theCourt that it is not in the interests of the children that they should anylonger remain in the custody of their mother. A parent or guardian orother person who is legally entitled to the custody of a child can regainthat custody when wrongfully deprived of it, the unlawful detentionof the child being regarded as equivalent to unlawful imprisonment.
In the instant case there is no unlawful detention. Apart from the factthat there is no unlawful detention there is further ground on which thepetitioner’s application should be refused. The writ is not grantedwhere the effect of it would be to question the decision of an inferiorCourt on a matter within its jurisdiction or where it would falsify the ‘record of a Court which shows jurisdiction on the face of it (Halsbury3rd Edn., Vol. 11, p. 36, s. 63).
The petitioner has not resorted to the obvious remedy of invbking thejurisdiction of the Court which made the order. The application isrefused with costs payable to the 2nd respondent.
Weerasoobiya, J.—I agree,
SlNNETAMEV, J.—I agree.
1 (1964) 2 Att E. X. 440.
(1917) 1 K. B. 176 at 179.
IN RE B. S. LIYANE ARATCHIE