:1956Present: H. N. G. Fernando, J.
MARTHA IVALDY, Petitioner, and F. P. IVALDY el al.,Respondents
S. G. d29—In the matter of an Application for a Writ ofHabeas Corpus]
rHabeas corpus—Courts Ordinance, s. 45—“ According to law"—Custody of children—
Contest between father and mother—Preferential -right of father—
Applicability of Roman-Dutch Law..
An ultimate order granting or refusing ft writ of habeas corpus is determinedby the law of Ceylon.
Where a mother sought, as against tho father, tho custody of two minorchildren, who were girls of the ages of thirteen and nine—
Held, that, under the Roman-Dutch Law, whore there has been no legal dis-solution of tho common home, the father’s right to tho custody of his minorchildren remains unaffected by the fact of the separation of the spouses, andcan only bo interfered with on special grounds, such, for example, as dangerto tho life, health or morals of the children.
.Application for a writ of habeas corpus.
■ G. E. Chilli), with Cecil Gunawardena and A. M. Coomarasicarnp, forithe petitioner.
– J5. J. Kadirgamar, with John de Sarain, for the 1st respondent. :
Cur. adv. vult.
June S, 1956. H. X. G. Fernando, J.—
Tho petitioner in this application for a writ of habeas corpus is the=wife of the 1st respondent and the mother of the minor 3rd and 4threspondents, whose custody she seeks as against their father. The 2ndrespondent is the principal of the Xuwara Eliya Convent at whichinstitution the minor children were placed in February, 1954, by theii-fat her’s authority. The minors are "girls of the ages of thirteen and' nine, having been born in France of parents who are respectively aFrenchman and American woman, and who married in America in193S. There are also two male children of the marriage, one of whom-is now in France and the other in America.
The husband and wife appear to have had frequent differences, parti-cularly since the 3-ear 194S, when the wife and the children returned to-America from France, and the wife had actual custody of the childrenuntil the end of 1953. Meanwhile she obtained a decree of divorce in1952 in an American Court in an uncontested action on the ground of"cruelty ; but the decree was set aside in June 1953 on the ground thatthe husband had not been served with summons in the action. InAugust, 1953, the husband met the wife in America and persuaded,her to come out, with one of the boys and the two girls, to Ceylon, wherethe husband had been appointed to a post with the World Health .Organisation ; and accordingly the wife and children arrived in Ceylon inXovcmber 1953. The wife alleged that she made the trip to Ceylononly on the understanding that her husband would deposit in advancethe cost of return passages to America for herself and the children andthat she would be free to return home with the children whenever shewished. Whether for good reason or not, the husband not only failedto honour this understanding, but also prevented the wife and thetwo girls from returning home even at her expense, and furthermoreobtained an enjoining order from the District Court of Colombo restrainingher from taking the children away from Ceylon. That order was byconsent made applicable only pending the determination of thepetitioner’s present application to the Supreme Court. (I should addthat the male child who came to Ceylon with the mother was sent toFrance from Ceylon sometime before this application was filed.)
At the inquiry held by the learned Magistrate of Nuwara E-Ii3ra, to-whom the present petition was referred, a volume of evidence was led,much of which would have been irrelevant even in proceedings fordivorce. Very much less evidence would, I think, have been adduced,if everyone concerned had appreciated the real issue which arises in acase where the wife of a marriage, which has not been the subject of adecree for divorce or judicial separation, challenges the husband’s rightto the custody of children of the marriage. Recent experience of thefrequency of such applications makes me welcome the opportunity to-consider the relevant authorities, and I appreciate the assistance which.Mr. Kadirgamar has given me in this connection. The present case,is fortunately not complicated by any question of the Conflict of Laws,counsel for both sides having conceded that I should apply the law of”Ceylon. There is ample support for the view that a dispute as to the
custody of the chUdren may be determined by the taw of the country ofresidence, particularly in the absence of any competing order made by acompetent court of the country of domicile. (Halsbury—3rd Edition,p. 126, 127 ; Dicey : Conflict of Laws, Gth Edition p. 4S0.)
The writ of habeas corpus was unknown to the Roman-Dutch Law,•and as Schneider J. observed in the case reported in the twenty-ninthvolume of the New Law Reports at page 52, section 45 (then section 49)•of the Courts Ordinance is obviously founded on the English Law, re-port to which must therefore be had in considering the purpose andscope of the jurisdiction of this Court to issue the writ. Clearly this•question whether a mandate should issue under section 45 “to bringup before this Court the body of any person ” must be determined inthe same manner as it would be by a Court in England ; and if such onlywas Fisher C- J.’s opinion, when lie said “ wc should …. applyEnglish Jaw in considering the question which has been submitted ”(Gooncrainayaka v. Clayton *), I would respectful^ agree. But the ulti-mate order made in exercise of the special jurisdiction is “ to remand ordischarge any person so brought up, or otherwise deal with such personaccording to law ”, the section having in contemplation, in my opinion,the law of Ceylon relevant to the question whether the person should beremanded, discharged or otherwise dealt with. It was probably withthis aspect of the matter in mind that Drieberg J. in the same casesaw the need to remark that Courts under the Roman-Dutch Law hadthe same power as the Courts in England in respect of the particularmatter with which this Court was then concerned. There have beenmany decisions in Ceylon which purport to follow English precedents indisputes as to the custody of children, and which, by reason of the essen-tial similarity of the English and Roman-Dutch principles, will in allprobability be found to conform with the latter. But if, as I think,the Roman-Dutcli law is applicable in determining whether the rightof a parent to custody should be enforced or not, then there should be■direct resort to the Roman-Dutch law.
Spiro (The Law of Parent and Child p. 170) points out that there areonly two exceptions to the fundamental rule of the Roman law that theparental power of the parent does not allow of any interference.'"’Parent ” where father and mother arc both alive, means of course thefather who is the natural guardian of his children (Van Rooyen v.Werner -). The first exception to the rule is that a court, in authorizingthe parents to have a separate home, is also competent to regulate the -exercise of the parental power in accordance with the interests of theminor child concerned. This exception has received statutory forcein Ceylon bj* sections C19 to 622 of the Civil Procedure Code, whichempower a District Court to make orders for custody either pending amatrimonial action, or after a decree of divorce or judicial separationhas been entered. The second exception, for a case where a■separate home has not been authorized, is referred to in a recent-judgment in South Africa (Calitz v. Calitz 3) as follows :—“ The Court
lias no jurisdiction where no dirorce or separation authorizing theseparate home has been granted, to deprive the father of his custody. except under the Court’s poners as upper guardian of all minors to inter-fere with the father’s custody on special grounds, such, for example, as•danger to the child’s life, health or morals. ”
The distinction between the two exceptions is, I think with respect,well explained in the judgment to which I have just referred. When acommon home no longer exists in law, by reason of a matrimonial decree,the natural right of the father to custody, which flows from the dutyto maintain the common home, is interrupted and the question of cus-tody can be raised bjr cither spouse for decision by the Court. Thegeneral principle applicable in that event is that the innocent spouse is-entitled to an order for custody of the children, unless the Court, with-due regard to the rights of that spouse and to the interests ofthe children, otherwise determines ; and in this way, a father who ist^e guilty spouse will in ordinary circumstances, or even who is innocentmay in extraordinary circumstances in the interests of the welfare of thechildren, be deprived of his natural right to custody. But where therelias been no legal dissolution of the common home, the father’s rightto custody remains unaffected by the fact of the separation of the spouses,-and can only be interfered with in special circumstances.
Spiro (idem pp. 171 and 172) refers to later decisions of flic SouthAfrican Courts which appear to have amplified the meaning of the ex-pression “ special grounds ” in the principle as stated in the Calitz case.
In particular, there was the observation made obiter in Green v. Green 1that the Courts will not hesitate to deprive the father of custody wherethat custody is shown to be detrimental to the interests of the child.But even this observation underlines the distinction between the twoexceptions to which I have referred. In applying the first-, the Courtwill (with due regard to the preferent right of an innocent spouse) attemptto choose a course which will promote the interests and welfare of thechild : in applying the second, the Courts will recognize the father’sprirna facie light, except when the element of danger or detriment ispositively established.-
The question I have to determine in this case, therefore, is not- whetherthe estrangement- of the petitioner from the respondent is attributableto the fault of the latter, nor whether it is in the interests ofthe happiness or welfare of the two daughters of the marriage that theybe committed to the care of their mother. The sole question is whetherthe right of the father to custody is to be denied him owing to the pros-pective danger to the life health or morals of the children or owing toother circumstances establishing detriment to their interests. It is -■extremely difficult to cull from the recorded evidence the grounds uponwhich the petitioner relies, and I will deal with the principal grounds asstated by her counsel :—.
(I.) Tiie respondent assaulted his wife physically in the presenceof the children.
' .This alleged assault, though (as far as I can gather) not directly BpokenJto by the petitioner in her evidence in this case, was admitted biy thejrespondent. It took place in the attic of a house or flat in France in'September 1948 when the petitioner was packing, apparently-^ in prerjparation for her departure from that country for America. According!to the evidence of the petitioner in the abortive divorce proceedings in_|America, tliis assault took place without any provocation and only for-£the reason that the defendant was “ brooding ” over his failure to obtain ia house on which he had set his heart. The respondent, on the contrary.,!stated in cross-examination before the Magistrate that he had beeiiN^gravely provoked by the petitioner’s allegation that he had previouslythreatened to kill his children. While the gravity of tins assault is-not denied, I find it impossible to believe the version that it was un-provoked. Moreover this assault was not made the reason for the-petitioncr’s departure for America in November I94S, which did notin the legal sense constitute a “ separation ” by mutual consent. Her-evidence here is that she strongly objected to going to America, andonly did so because her husband desired to take some medical training-and suggested that she and the children should live in America withher parents in the interim. It is also significant that right from tlic-tlme of her return to America, the petitioner regularity and even withgreat frequency wrote long and affectionate letters to her husband inTrance, in none of which (so far as I can gather from a quick reading ofthem) was there any direct reference to this assault ; instead, in manj-of them, she regrets her own treatment of the respondent and expresses-her intention to behave differently in the future. Whether the peti-tioner can rely upon this assault in 194S for the purposes of divorce-proceedings is doubtful ; it is much more doubtful whether she can now-urge it as a reason why his custody of the children should be a source-of danger to the latter.
(II.) The second allegation is that- the respondent “ abandonee?his family in a strange country ” when they arrived in Cej lon in 1953-
Assuming it to be true that the father showed a marked prefercnc-e-for the son arid at first disregarded the two daughters after one of themfailed to greet him like a daughter should, there is nothing else in the-evidence to warrant this serious allegation of desertion. On the peti-tioner’s own evidence, the father provided Hotel accommodation for-the family at Galle, where he was working at the time, and there is-no allegation that he failed to pay the Hotel Bills. Quite soon after,and up to date, the two girls were placed by mutual agreement at theConvent in Nuwara Eliya, and much if not all of the cost of their hoardand education appears to have been met by the father. I do not doubtthe petitioner’s statement that she spent her own money in Ceylon, but,,having regard to the amount of the respondent’s own income, he appearsto have incurred quite reasonable expenditure on the maintenance andeducation of his children while in Ceylon.
Connected with this allegation is the suggestion that the respondent-failed to support his wife and family while in America between 1945>and 1953. Assuming that he contributed little to the family till during
that period, tKe question is whether he was guilty of deliberate neglect.But it is admitted that he had then no regulator adequately remunerativeemployment and was trying to improve his qualifications; and thepetitioner who appears to be an educated and capable woman, willinglyundertook a large share of the family burden. Here again, the lettersto which I have referred—there was a period during' 3fay 1950 whenshe wrote several pages nearly every day remembering the happinessof the past and voicing her hopes for the future—contain no complainton the score of failure to maintain the home. The respondent was nodoubt aware that the children would be adequately maintained throughthe mother’s voluntary efforts during a period of financial stringency,but so soon as lie himself obtained sufficiently remunerative emploj'menthe did again resume his normal financial obligations. I can seenotlung in these circumstances to establish a case of deliberateneglect.
(ITT.) Thirdly it was alleged that the Respondent has contrived toevade the decison of this dispute in the American Courts by inducingthe petitioner, through what was described as a trick, to bring thechildren to Ceylon. Connected with this is the allegation that hedocs not in truth desire to have charge of the two girls and is in factutilising their presence in Cejdon in order to bargain with hiswife for the custody of the eldest boy Philippe who is now inAmerica..
In outlining the facts, I have already stated that the respondent failedto honour the understanding that monies would be deposited in advancefor the return passages to America from Ceylon of the petitioner and thechildren. His explanation has been that the petitioner has contraryto her own agreement prevented Philippe from joining him in France.Of tliis there is certainly no clear evidence, the letters from Philippe andfrom his relatives in America indicating on the contrary that Philippe,who is now sixteen years old, is quite determined to remain in Americaand-that owing to a serious fall from a window in May 1954, it wouldhave been quite inadvisable for him at that time to have made the jour-ney to France. It is impossible to set out here the various items ofevidence which directly or indirectly affect the allegation of a trick,but upon a consideration of them I am of opinion that it was dishonour-able on the part of the respondent to obstruct the return to America ofhis two daughters and that he has taken advantage of what he has beenadvised to be the Law of Ceylon on the subject of custody. One docu-ment is in this connection significant. In May 1955, while the presentapplication was pending, a draft agreement was prepared by which therespondent agreed to permit the two daughters to be taken back toAmerica but which also provided for several conditions concerning theright of the respondent to have custody and to visit the two malechildren. The petitioner states that she did not sign that agreementbecause she was not agreeable to all the terms, and there is in my opinionmuch substance in the suggestion that the agreement was something ofa bargain. Tha,^circumstance does not however by itself establish
that the respondent does not in good faith desire to Have the custodyof his two daughters ; at most it would indicate that-, if a choice were'to be forced on him, lie would prefer the custody of the male childrens
… (IV.) A fourth ground—which I express in milder terms than thoseMr. Chitty employed—is that the respondent is neurotic, liable toviolence and mentally unstable.
It is said that his behaviour in Court and his reaction to cross-exami-nation establish this. It is unfortunately true that in proceedings oftliis nature, when domestic grievances and unhappiness are the subject-of searching examination and dispute in a Court of haw, the characte/fand temperament of each spouse do not often emerge without blemish.iSTeither the husband nor the wife in this case was an exception to tjy/j;usual rule.
The respondent is supposed to have consulted fi%-e different psycf -•trists and to be thus estopped from claiming to be sane and mentjfir jstable. But his explanation that lie was forced to do so owing to tile'importunities of his wife is borne out by at least one certificate from one of the psychiatrists concerned. I do not think that the mere factfthat a husband and wife, particularly when faced with differences of race,temperament and religion, do not understand each other, would be agood ground for thinking that either of them is abnormal or a propersubject for psychiatric treatment. Much more reliable evidence thanthat which the petitioner has been able to produce would be required tojustify a court in forming such an opinion of her husband.
(V.) The last allegation to which I propose to refer is that therespondent has been guilty of cruelty to the eldest daughter, Anne.
Some of the items of evidence relied on are trifling and even absurd,^such as the statement that Anne was reluctant to go out riding because jthe respondent made the horse gallop too fast- The principal factestablished in this connection was that'in December 19:54 the respondent-forcibly held down Anne for about two hours and spanked her there.after. Apparently the respondent had requested Anne to lay a clot)'on the dining table wliich Anne had refused to do. Anne became violerjwhen the respondent insisted on her obedience and he then seized hcj.of her, insisting that she would be not released unless she laid the clotfThe child was certainly the first and very much to blame ; but even iithe whole story as related by the petitioner be true, this one instance^. -.physical interference with Anne surely cannot establish either habitu<bcruelty or even a tendency towards cruelty or hatred to the children ojj,the part of the respondent.w-;
There is, however, another aspect of this matter which has given ine'i'-.much artxietj'. There is ample evidence on the record to show that IAnne has often been disrespectful to her father even in the presence of :<-4third parties and that she undoubtedly shows a marked preference inf <affection for her mother. What concerns me is whether this antipathy
to her fatlfer is so-strong or so deep rooted that it will induce her to do. violence to herself or will seriously affect her mental health if she is nowcompelled to return with her father to France.
This Court has previously applied the English principle that thewishes of a child under sixteen are not as a general rule to be consultedin determining a question of custody. (Gooncratnayaka v. Clayton 1).But examination by the judge of a child and an indication of her ownwishes in the matter can I think be of assistance in deciding whethercustody by a particular parent would be detrimental to the child’s, interests. And in these circumstances I felt it necessary to summonnd examine both children.
Tn the case of the j-ounger child, Elaine, while it became clear to me*i she would choose to be with her mother rather than with her father,tated in answer to me that she was fond of the latter and I formednit hesitation the opinion that there would be no danger whateverQimitting her to his custody even if it meant separation from ther .her. The case of the elder child Anne is somewhat different. Shenow thirteen, years of age and appears to be thoughtful and maturer her years ; between the ages of five and eleven she has been under•he care and in the company of the mother (almost to the total exclusionf the father) at Nebraska, which she still describes as “ home ” ; she istwaro of the differences between her parents and is naturally concernedf md affected by her mother’s unhappiness over the family disputes ;she complains also that her father makes “ scenes ” at table and hasnot been, generally speaking, “ fair ” to the family ; far from entertainingthe natural affection of a child for a father she appears to have a fairlyi strong dislike for him. One important cause of her distrust is that her'bther failed to kcej? his promise that they would bo free to return from/Ion to America whenever they wished ; and she was quite unable tojreciate the suggestion I made to her that what might seem to have;n a dishonourable trick in other circumstances might be viewed in a1 "erent light in the case of a parent who is anxious to recovercustody of his children. But despite this antagonism, which was;nk due partly to the unfortunate separation from the father aserhaps as to the faults of both parents, I cannot say that the cora-i ‘ of Anne to the custody of her father would involve reasonabledanger or detriment to herself. She readily agreed that theoth incident (which she said was one of many but nevertheless•st serious) was a case where both she and her father behaved badly.
1 1, in answer to Mr. Chitty, that she was " afraid ” of her father,
[- as clear that this did not mean fear of physical violence or injury-ther an anticipation of “scenes ”, criticisms and – disagreements,itress and unhappiness which is often likely to arise in the courserelations with her father would not, I feel sure, provoke her toce or cause her to brood unduly over her misfortunes. The sisterle convent in Nuwara Eliya who has good opportunities of obser-Sn agreed that Anne is quite a normal child and that her relations;; c father are not likely to bo deleterious to her character. While, *
576 '“• FERNANDO, J.-Ivaldy v. Ivaldy
• – •»-— :——:- y-'h
'therefore; it is abundantly, clear that Anne would very much preferto live with her mother and that in America, it cannot be said that herantagonism to her father is so serious that her committal to his custody?
. would be a source of danger to her life, health or morals or even that(if the principle should be more widely expressed) it would be detri-mental to her interests. In the result the petitioner has failed to' estab- lish sufficient grounds upon which a court can exercise the power todeprive the' father of his natural right of custody. She herself undoub-tedly .would be anxious to promote the happiness of the children, aridAnne was confident that the mother would accompany the children to' France in the event of their having to go with the father. As was re-marked in the Calilz case, it still lies with the mother, at least for thepresent, to return to her husband and thus avoid the disadvantage which' the children might otherwise suffer in consequence of their separation from her. I trust that the advisers of both parties will attempt to seeingsuch a solution to the present difficulties.;:
The petitioner’s application is refused and the 1st respondent witbe entitled to the custody of the two children. The order made on 11th March, 1955, by my brother Sansoni lapses with the deteimination of this application and the 1st respondent may, when he so desires.remove the children from the custody of the 2nd respondent and removethem from Ceylon. The order made by the Magistrate, Nuwara Eliya,on 26th March, 1955, will no longer apply against the 1st respondent.
MARTHA IVALDY, Petitioner, and F. P. IVALDY et al , Respondents
:1956Present: H. N. G. Fernando, J.