( 287 )
Present Jayewardene A. J.
JOSLIN NONA v. SILVA.334—P. G. Balapitiya, 44,379.
Maintenance—Order to hand over the child to father—Compliance withorder by wife—Appeal—Order illegal—Wife directed to apply forwrit of habeas corpus.
The Magistrate in a maintenance case ordered the wife to handover the child to the father. The mother obeyed the order andappealed.
Held, that the order was illegal; but as the child was already inthe custody of the father, the mother was directed to apply for awrit of habeas corpus.
rjpHE facts are set out in the judgment.
No appearance for appellant.
Amarasekere, for respondent.
June 28, 1924. Jayewardene A.J.—
This is a claim under the Maintenance Ordinance. The husbandhad been ordered to pay maintenance to his wife and child in theyear 1917. The husband now moves to have the order directingthe payment of maintenance vacated, on the ground that the wife is
( 288 )
Jaybwab-Dm A. J.
living in adultery. The Magistrate has found that the wife is livingin adultery, and has cancelled the order for maintenance in herfavour. All these years the child, who is a boy now eight years old,had been in charge of the mother, and an application appears to havebeen made to the Magistrate to direct the wife to hand over the childto the father. This the Magistrate has acceded to, and has directedthe child to be handed over, and I find from an entry in the recordthat the child was, as a matter of fact, on May 14 handed over bvthe mother to the father in the presence of the Magistrate. Thiswas in compliance with the order of the Magistrate who ordered themother to bring the child to Court on May 14 to be surrendered tothe father. The mother appeals against. the order directing thedelivery of the child. I think the orde.r of the Magistrate is clearly -illegal. He has exercised a power which is vested in this Court,and in this, Court alone, by practically issuing a writ of habeas corpus.The mother very properly obeyed the order of the Court, althoughit was illegal, and produced the child to, be handed over to the father.It is unfortunate that her compliance with this order should pre-judice her legal rights. However, now that the child is in his father'scharge, rightly or wrongly, it is a question whether he can besurrendered to the mother except on a writ of habeas corpus. I thinkthe proper procedure to adopt would be for the mother to make anapplication for a writ of habeas corpus, if she is so advised. I merelyset aside the order directing the delivery of the child .to the father,as I do not think it is possible for me to make any further order inthe matter in the present proceedings. The appellant has succeededon the points on which she has appealed, but as there was noappearance for her it is not necessary to make any order for costs-.
JOSLIN NONA v. SILVA