DRIEBERG J.—Ran Menika v. Paynter.
1932Present; Drieberg J.
In the Matter of an Application for a Writ of Habeas Corpus.
RAN MENIKA v. PAYNTER.
Habeas corpus—Right of mother to custody of child—Power of Court to interferewith right—Only where it is essential for safety or welfare of child.
The Supreme Court will not deprive a parent of the custody of a childfor the reason only that it would be brought up better end have a betterchance in life if given to another. The Court must be satisfied that it isessential to-its safety or welfare that the rights of the parent should besuperseded or interfered with.
HIS was an application for a writ of habeas corpus. The facts appearfrom the judgment.
G. K. W. Perera, for the petitioner.
J. R. V. Ferdinands, for the respondent.
May 3, 1932. Drieberg J.—
This is an application by the mother of a boy who was placed on June26, 1931, by the applicant’s mother in the Nuwara Eliya Christian MissionSchool which is under the control of the respondent, the Rev. Mr. A. S.Paynter.
The boy, who is thirteen years old, is the son of an European who keptthe applicant as his mistress; she thereafter became the mistress of anotherEuropean by whom she had two children, a boy nine years old and a girlof six years. It was suggested that the third child was by another man,but the Police Magistrate has accepted the peitioner’s evidence on thispoint. The father of the boy Arthur made provision for him and thisis being administered in Curatorship Case No. 872 of the District Courtof Kandy, the petitioner being curatrix.
There is no ground for finding that the petitioner has neglected theinterests of the boy. On the countrary, she appears to have done all shecould. He was attending the Sri Rahula College when he was removed,and had been boarded for some time, as the curatorship case shows,with Miss Roosemalecocq of Kandy.
.The boy was taken to the respondent on the suggestion of N. R. Reddiewho knew him when they were both at Sri Rahula College. Reddiein his evidence suggests that he was engaged in vigilance work but notin the locality where the petitioner lived. Reddie ^says that the boywas well looked after, he knew nothing about the petitioner’s mode oflife, and his only reason for suggesting the boy being^placed at Mr. Payn-ter’s school was that he would get an industrial training there. He wentto the petitioner’s house where he met her mother and he suggestedthat the boy should be sent to Mr. Paynter’s school, all he told them infavour of this was that he would be educated free. In answer to a
DRIEBERG J.—Ran Menika v. Paynter.
question whether he told her of any conditions attaching to entranceinto the school, Reddle said that he told the mother that the boy wouldnot be" sent back to her.
The boy was taken to the respondent on June 26, 1931, by thepetitioner’s mother; the petitioner says that the next > day she askedher mother to get the boy back. The respondent says that a few daysafter June 26 the petitioner’s mother asked that the boy be given back. Itis clear that the petitioner gave a reluctant consent, deferring possiblyto her mother’s wishes, and immediately thereafter repented of herdecision. When the petitioner’s mother failed to get the boy back thepetitioner herselfxwent to the school but was not allowed to see the boy,She then started these proceedings.
The matter was referred to the Police Magistrate of Nuwara Eliyafor inquiry. The application was there resisted on the ground that shewas leading the life of a prostitute. She was refused an opportunity ofleading evidence to disprove this charge, of which she had no notice.The Police Magistrate found against her. I was not satisfied with thisfinding and I ordered an inquiry by the Police Magistrate of Kandy. ThePolice Magistrate of Kandy has found, and I agree with him, that thereis nothing to be said against the petitioner except that she has livedunder the protection of two Europeans in succession by whom she hashad children. She sends these children to a good school and does thebest she can for them with the help given by their fathers. Reddie,who is partly responsible for the information given, to Mr. Paynter ofthe bad character of the petitioner, admits that the boy was well lookedafter and that the only reason for his suggesting a change of school wasthe advantage of an industrial draining at the Nuwara Eliya school.Can the Court deprive the petitioner of her legal right to ythe custody ofher child and her right to its companionship for the reason only that itwill have greater advantages and a better start in life/if given Over to therespondent?
Mr. Ferdinands contended that the Court should' be guided solely bythe interests of the child, and he relied on the ruling in The Queen v.Gygnall It was there held that the Court liad the power where theinterests of a child called for it to refuse a mother the custody of herchild though she was not guilty of such conduct as would disentitleher to it. The Courts of Chancery had this power which was exercisedby the Courts of Common Law after the Judicature Act of 1873. TheSupreme Court has the same power, see Mohammadu Cassim v. CasieLebbe1 But this does not mean that the Court can deprive a parentof the custody of a child for the reason only that it would be broughtup better and have a better chance in life if given over to another ; theCoutt cannof have regard only to the balance of advantages. In TheQueen v. Gygnall, Lord Esher M.R. in stating the grounds on which a Courtshould exercise its discretion followed the judgment of Knight Bruce V.C.in the case of In re Fynn (2 de G. & S. 457, at page 474)." Inhere is theresuch a clear and complete statement of the law that I may well quotein full. Knight Bruce V.C. said, “Of the present case I may say, that
> (1893) 2 Q. B. 232.'2 (1927) 29 N. L. R. 136.
.DRIEBERG J.—Ran Menika v. Paynter.
were I at liberty, as I am not, to act on the view which out of Court Ishould, as a private person,' take of the course likely to be most beneficialfor the infants, I should have no doubt whatever upon the question ofinterfering with the father’s power. Without any hesitation I shoulddo so—to what extent and in what manner I do not say. But theremay and must be many cases of conduct, many cases of family differences,family difficulties, and family misfortunes, in which, though interpositionwould be for the interest and advantage of minor children, Courts ofJustice have not the means of interfering usefully, or, if they have themeans, ought not to interfere ; and the jurisdiction to which the presentpetition is addressed is one that, infinitely various as are the possiblecircumstances in which it is applicable, is yet restricted, and I believewisely restricted, by certain principles and rules from which there canwith propriety be in its exercise no departure. The acknowledged rightsof a father with respect to the custody and guardianship of his infantchildren are conferred by the law, it may be with a view to the performanceby him of duties towards the children, and in a sense, on condition ofperforming these duties ; but there is great difficulty in closely definingthem. It is substantially impossible to ascertain or watch over theirfull performance; nor could a Court of Justice usefully attempt it.A man may be in narrow circumstances ; he may be negligent,injudicious, and faulty as the father of minors ; he may be a person fromwhom the discreet, the intelligent, and the well-disposed,. exercising aprivate judgment, would wish his children to be, for their sakes and hisown, removed; he may be all this without rendering himself liableto judicial interference, and in the main it is for obvious reasons wellthat it should be so. Before this jurisdiction can be called into actionbetween them it must be satisfied, not only that it has the means of. acting safely and efficiently but also that the father has so conductedhimself, or has shown himself to be a person of such a description, or isplaced in such a position, as to render it not merely better for the children,but essential to their safety or to their welfare, in some very serious andimportant respect, that his rights should be treated as lost or suspended-should be superseded or. interfered with. If the word ‘ essential' istoo strong an expression, it is not much too strong
It cannot be said that it is essential to the welfare of this boy that heshould be taken from his mother and left at Mr. Paynter’s school. Thecase has to be considered from this point of view, for different considera-tions would arise if he had been given over to the respondent’s schooland after the lapse of some years his mother wanted him back. Thiswas so in the case of The Queen v. Gygnall where Kay L.J. said “ Itwould be a different question where the attempt is to take a child awayfrom the custody of the father or mother and a very strong case wouldhave to be made out to deprive the parent of the custody of a childwhich had up to that time been in the custody of the parent. Herewe have not to deal with that case ”.
The position cannot be affected by the fact that the child was a fewdays With Mr. Paynter before the petitioner, who had not formallyconsented to his being placed there, wanted him back.
ATohamed v. Ramasamy Chettiar.
I order that the boy Arthur Huntley Gordon be given over by therespondent to the custody of the petitioner. Return these proceedingsto the Police Magistrate of Kandy and ask him to notice the parties toappear before him and give effect to this order.
The petitioner has been put to expense over this matter, and I directthat the respondent should pay her costs, which I fix at Rs. 73.50.
RAN MENIKA v. PAYNTER