t>E IvRETSER, J.—Algin r. Kamalau-athie429
1969Present: de Krefser, J.
A. ALGIX, Petitioner, and D. K AMALAWATHIE, RespondentS.C. 53;6S—•Application for a Jt'rit of Habeas Corpus
Habeas Corpus—Divorce action—Decree in favour of plaintiff husband—-Voorder of court in regard to custody of children—Right of husband to claimcustody from the wife jwnding ap/tcal in the divorce action.
There is no rule of law that the plaintiff in a divorce action must necessarilyask for the custody of his children.
Petitioner obtained a decree for divorce and, during the pendency of the appealin the divorce action, filed the present application for habeas corpus againsthis wife for the custody of his children. In the divorce action he had not soughtan order for the custody of the children and the Court made no order on theapplication of the wife for their custody, because the decree for divorco wasentered in the absence of the wife who failed to appear on the trial date.
Held, that the divorce action was not a bar to tho^pplicatibxi for habeas ~corpus.■
-/.PPLICATIOX for a Avrit of habeas corpus.
Nimal Senanayake, Avith 31. W. A tnarashighe, for the petitioner.
Nalin Abeysekera, for the respondent.
Cttr. ado. vult.
NoA*ember 20, 19G9. de Kretsek, J.—
The Petitioner in this Application is the husband of the Respondentagainst whom be lias obtained a Decree for Dh*orce Avhich is now inAppeal. In the DiA'orce Case lie did not seek an Order for the custody ofthe 4 children of the marriage and the Court made no Order on theApplication of the Avife that she should have .their custody for the Decreefor Divorce Avas entered in the absence of the Avife Avho Avas absent on theTrial date. The Petitioner filed tin's Application for Habeas Corpusseeking an Order that the Respondent should hand OA-er the childreninto his custody.
The Magistrate of Badulla to Avhom Mr. Justice Wceramantry has sentthe Petition for Inquiry and Report has reported that the Petitionershould be giA-en the custod}' of the children. The matter was there-after placed for further argument as Counsel Avantcd on opportunity tomake further submissions. Counsel for the Avife iioav submits that theremedy by Avay of Habeas Corpms is not open to the petitioner in thathe had filed the DiA*orce Case Xo. 429S Badulla in which lie should seekany Order he Avants in regard to the custody, of the children of themarriage. He relies on the Case In re B. S. Liyana Aratchie1.
1 (1958) CO N. L. R. 620.
t)E liRETSER, J.—Algin v. Kamaiaivalhie
The question for decision in that Case was whether the proper procedure. for obtaining the custody of a child entrusted to a parent by a competentCourt of Law in the exercise of its matrimonial jurisdiction is by wayofHabeas Corpus. The Court decided it was not, for tlie Writ is not-granted for the purpose of testing a decision made by a Court which liasacted within its jurisdiction. Halsbury.Third Edition Vol. 11 Page.36Section CD which points out that the Writ is not granted where the effectof it would be to question the decision of an inferior Court on a matterwithin its jurisdiction or where it would falsify the Record of a Couftwhich shows jurisdiction on the face of it was quoted with approval.
In the present Case the Plaint shows that the Plaintiff did not seekOrder from the District Court of Badulla in regard to the custody of the.children when he filed his Divorce Case No. 42DS. There is no Rule of -Law that a Plaintiff in a Divorce Case must necessarily ask for the custody -of the children for it may well be that lie is satisfied by Hie fact that the’ ;Law recognizes him as the natural guardian of his children and therefore.,entitled to their legal custody in preference to all others.*
It will be seen that the question of the Court having made an Order inregard to the custody of the children docs not therefore arise in thepresent Case.s
A Parent or Guardian or other person who is legally entitled to the.custody of a child can regain that custody when wrongfully deprived ofit, the unlawful detention of the child being regarded as equivalent tounlawful imprisonment….
The Law recognizes that the father is the natural guardian of hischildren and entitled to their legal custody unless he has been deprived ofit bj1- the Order of a competent Court. • Anyone keeping the childrenwithout his consent unless armed with the Order of a Competent Court-can be said to be keeping them in unlawful detention. His remedywould be by way of Habeas Corpus.
It is not the fact .that a Divorce Case -was filed but- the fact that theCourt made an Order in regard to custody of children in it that is thebar to a Habeas Corpus Application being filed in reference to that samecustody.
It appears to me therefore that the Petitioner is entitled to bring this •Application. A perusal of the Report of the Magistrate satisfies liicas to the correctness of his conclusion. I order the Respondent to handover the children to the Petitioner in the presence of the Magistrate inthe Magistrate's Court of Badulla on such dale as the Magistrate willfind convenient or to satisfy the Magistrate on that date that this Orderhas been complied with. I make no order as to Costs. The Rcsjiondentwill be entitled to see the children on each Poya Day.
N. A. ALGIN Petitioner, and D. KAMALAWATHIE. Respondnet