Silva and Silva.
1943Present; Moseley S.P.J. and Wijeyewardene J.
SILVA Applicant-, and SILVA Respondent.
-D. C. Colombo, 720 (Divorce).
Divorce—Custody of, child pending action—Rights of father—Interests of child—Application for revision pending appeal—Civil Procedure Code, s. 753.The Supreme Court has the power to revise an order made by anoriginal Court even where an appeal has been taken against that'order..
In such a case the Court will exercise its jurisdiction only in exceptionalcircumstances and in order to ensure that the decree given in appealis not rendered nugatory.
The father is entitled to the custody of a child pending divorceproceedings especially where the best interests and safety of the childrequire that the child should continue to remain in his custody.
HIS was an application to revise an order- made by the DistrictJudge, wherein he ordered that the custody pendente lite of a
minor child should be granted to the mother (the plaintiff) in a divorceaction between the parents.
N. Nadarajah, K.C. (with him A. H. C. de Silva), for plaintiff,respondent, takes a preliminary objection to the hearing of the. applicationon the ground that an appeal had already been taken from the order andthe effect of this application being entertained would be to deprive theDistrict Court of the jurisdiction already vested in it under the Code..
E. F. N. Gratiaen (with^him H. W. Jayewardene), for defendant,petitioner.—There are exceptional reasons why this application should beentertained. The Supreme Court has the power to revise any order of alower Court even though an appeal has been lodged. The trial hasalready been fixed for October 11 and it is unlikely that the appeal wouldbe heard before that date. This being an application, for custodypendente lite any delay in hearing the appeal would only render theultimate order of the Supreme Court nugatory, (vide Atukorale v.Samynathan.L The interests of a minor child are involved and it isdesirable that this matter be disposed of as soon as possible.
The father is the lawful guardian of a child and is. ordinarily entitledto the custody; the Court would however consider the interests of thechild. ' In fact, this is the paramount consideration. The Court wouldnot, in a pending suit, deprive the father of the custody merely on accountof the natural desire of the mother to have the custody—Cartlidge v.Carblidge'. The principles regarding custody have been laid' down in- Aekemov v.Aekemon3 where the South African Courts have held thatwhere the question of custody pendente lite arises the interests of the minorare to ;be looked to1, but not forgetting the rights-of a father to custody.In this case the father fears for the safety of his child. It cannot be. saidthat these fears are groundless because the threats and behaviour of theplaintiff indicate that she is not incapable of doing some act which would
•‘ISC. L. Sec. 200.4 (1862) 6 L. T. R. 397.
.; '• S. A. %. R. (1910) C. P. D. 16.
WIJEYEWARDENE J.—Silva and Silva,
endanger the life of the child. Moreover the mother has not satisfied theCourt that she can give the child a home suited to one of his upbringing.Frequent changes of custody are also undesirable.
N. Nadarajdh, K.C.—The petitioner’s proper remedy is by way ofappeal. He has filed an appeal but he can move that its hearing beadvanced. No such application has been made and in the circumstancesthe application must be dismissed. Ameen v. Rasheed1 see also, RamSait v. Nadar et al.' The interests of the child are the primary con-sideration. He is an infant of four and it is in his best interests that heshould be restored to the mother—Maasdorp, Vol. 1, 125-128; Farmer v.Farmer’. The mother’s threats have not been considered as seriouslymade. The father is in Jaffna and the child is with the father’s relationsin Galle. It cannot be said that the father has the custody of the child.There is no reason why the mother should not have the custody, if thefather himself does not have it—Van Leeuwen, Vol. I, page 123.
E. F. N. Gratiaen, in reply.—No application to accelerate an appealcan be made till the record comes up to the Supreme Court and the appeal'is duly listed. A spouse can exercise his rights of custody vicariouslyvide Letlhoo v. Letlhoo Stapelberg v. Stapelberg “.
Cur. adv. vult.
August 16, 1943. WIJEYEWARDENE J.—
The plaintiff filed this action on April 29, 1943, asking for the dissolutionof her marriage with the defendant on the ground of malicious desertionand for the custody of her son bom on July 27, 1939. The defendantfiled answer denying the allegations made against him and asking for thedissolution of the marriage or of a decree of separation on the ground of“ constructive malicious desertion ” on the part of the plaintiff. He,too, asked for the custody of the child. The case is fixed for trial earlyin October.
On May 27, the plaintiff petitioned the Court for the custody of thechild pendente lite. The defendant opposed that application and theDistrict Judge, after inquiry, delivered his order on July 30, granting theapplication of the plaintiff and reserving the right of the defendant tohave access to the child. The defendant preferred an appeal againstthat order on August 2, and also filed papers in revision in this Courton the same day.
When the matter came up in revision before us,-the plaintiff’s Counseltook a preliminary objection. That objection, as I understood it, wasthat this Court had no jurisdiction to exercise its revisionary powersin this case especially in view of the appeal taken against the order.A similar objection taken in Atukorale v. Samynathan ° was not entertainedby Moseley S.P.J. and Soertsz J. In the course of his judgment Soertsz J.said:
“ The power by way of revision conferred on the Supreme Court ofCeylon by sections 21 and 40 of the Courts Ordinance and by section753 of the Civil Procedure Code are very wide indeed, and clearly, thisCourt has the right to revise any order made by an original Court,
1 6 C.L. W. 8.*S. A. L. R. (1942) O. P. D. 148.
* 13 G. L. W. 52.‘ S. A. L. R. (1939) O. P. D. 129.
» 1 Menzie’s 278.• 18 C. L. Rec. 200.
496WIJEYEWARDENE J.—Silva and Silva.
whether an appeal has been taken against that order or not. Doubtless,that right will be exercised in a case in which an appeal- is pending onlyin exceptional circumstances. For instance this jurisdiction will beexcercised in order to ensure that the decision given on appeal is notrendered nugatory.”
I am in respectful and full agreement, with the view expressed in thatcase. It must take some time for the appeal to be heard. Even afterthe appeal is perfected and sent to this Court, it has to remain on the list ofpending appeals for, at least, fourteen days before it is heard and,normally, it should be taken “ in the order of its position on the rollNo doubt, provision is made for a party “ to accelerate the hearing of anappeal ”, but an application for such a purpose can be made only after ithas been numbered and entered on the roll. It is, therefore, most unlikelythat the appeal will be heard before the trial in the District Court. It willserve no useful purpose to hear "'the appeal after the trial as the appealitself is from an interim order. I think, therefore, that this is a matterin which our revisionary powers should be exercised.
As the main dispute between the parties has to be decide at the trial,it is desirable to avoid a detailed discussion of the evidence led at theinquiry. It is admitted, that both the parents are very much attachedto their child. There are, however, certain matters which cause me someanxiety, when I consider the advisability of entrusting the child to theplaintiff pending the action. There is evidence that, when the child wasquite young, she attempted or threatened to lake the child from his cotand jump from the upper , floor of the house, as her husband went to abirthday party shortly after her father’s death. There is also evidencethat, a few .days after the defendant removed the child stealthily fromtheir home to His sister’s place in Galle, she made a statement toMr. Manickawasagar which was understood by him as a threat to harmthe child in certain circumstances. There is also the proved fact thatshe drank or made a serious effort to drink iodine when she quarrelledwith her husband over the removal of the child. The defendant hasspoken of his “ genuine fear ” as to what might be done to the child, if,
' after the child, is given to the custody of the plaintiff on the interim order,the Court enters a decree at the end of the trial for the restoration of the. child to the defendant. Considering her attachment. to the child, thereis no doubt that such an adverse order will cause her the greatest anguish.Would she have sufficient will power to face the situation and part withthe child in obedience to the order of Court or would she, in a moment ofdespair, feeling that, nothing should separate her from her child, .kill, thechild and kill herself as the defendant says she, threatened to do ? Itmay • perhaps be most unlikely that the plaintiff will be guilty of suchrashness as feared by the defendant, but- I am not prepared to questionthe sincerity of the defendant when he says that he entertain such a fear.• In view of the evidence as to her temperament and the incidents to which
have made a brief reference, it cannot be said- that the defendant’sfears are groundless and that there is no risk whatever of her acting in arash manner. Counsel for the plaintiff has undertaken that, if the. orderof the District Judge is affirmed, the child will be handed over toapproved custody a given number of days before the hearing. While
Todd v. Todd.
such a course would no doubt remove the child from any threateneddanger, it would involve a number of moves which would have anunsettling effect upon the child. Under these circumstances, is itnecessary to interfere with the present arrangements made by thedefendant? The father has, undoubtedly, a better right to the custodyof a child in the absence of any special reason. It cannot be said thatthe arrangements made by him are unsatisfactory so far as the interestsof the child are concerned. Since March 18 the defendant has kept thechild with his sister and mother. It is admitted that these ladies arevery fond of the child and are bringing him up in very comfortablesurroundings. There is also the fact that, as a result of certain definiteviews the plaintiff holds with regard to the upbringing of children, theboy’s life was so regulated at home that he is not likely to feel the loss ofhis mother’s company very much. Moreover, there is a possibility ofmore changes in the custody of the child if the interim order is sustained.
I think that, in all the circumstances of this case, it is best that thechild should continue to remain in the defendant’s custody during thepedency of this case. Adequate arrangements should be made by thedefendant to enable the plaintiff to see her child twice a month in Galleor,, if the plaintiff prefers it, once a month in Colombo. The details ofthese arrangements will be laid down by the District Judge, if the partiescannot agree.
I set aside the interim order of July 30, 1943, so far as it affects thecustody of the child and direct an order to be made as indicated in thepreceding paragraph.
Moseley S.P.J.—I agree.
SILVA Applicant, and SILVA Respondent