Weragoda v. Weragoda
1961Present: Sansoni, J.
A. D. WERAGODA, Petitioner, and R. WERAGODA and another,
S. G. 320/60—In the matter of an Application for a writ of Habeas Corpusto produce the body of Master Veraj Sharm Weragoda
Habeas corpus—Custody of infant—Rights of mother as against father—CourtsOrdinance a. 45 (a) (6)—Effect of words “ the body of any person to be dealtwith according to law
In an application for a Writ of habeas corpus made by a mother for thecustody of hor yoar old son who was, at tho timo of tho application, in thecustody of his father—
Held, (i) that the mere fact that, at the time of the application, the boywas in the custody of his natural guardian was not a bar to the application.In such a caso, section 45 (a) of tho Courts Ordinanco is applicable.
(ii) that, in a caso like tho present one, “ tho Court will docide who is tohavo tho custody of tho child after taking into account all tho factorsaffecting the case and after giving due effect to all presumptions and counter-presumptions that may apply, but bearing in mind the paramount considera-tion that the child’s wolfaro is tho matter that tho Court is there to safeguard.The rights of the father will prevail if they are not displaced by considera-tions relating to the welfare of the child, for a petitioner who seeks to displacethose rights must make out his or her case **.
1 (1948) 50 N. L. R. 25 at 37.
PPLICATION for a writ of habeas corpus.
Colvin It. dc Silva, with II. D. Tambiah and K. Palaktdnar, for thePetitioner.
W. Jayewardene, Q.C., with R. de Silva and L. C. Seneviratne, forthe 1st Respondent.
Cur. adv. vult.
March 29, 1961. Sansoni, J.—
This is a petition by a mother in which she asks for the custody ofher son who is now 9£ years old. The boy is now with his father,the 1st respondent. Tlio parties wore married on 19th October, 1951, andtho child -was bom on .llth September, 1952. The Magistrate who wasasked to inquire into the petition and report to this Court has recom-mended that the petitioner should be given the custody of the child.
Mi*. Jayewardene, who appeared for the 1st respondent, took theobjection that no writ of habeas corpus lies in this case bocauso thefather is entitled to the custody of his child', and the child being thereforein lawful custody the writ cannot be issued, since the writ only lies where& person is “ illegally or improperly detained in public or private custody.”Those are words taken from section 45 (6) of the Courts Ordinance (Cap. 6);but section 45(a) is in much wider terms, and enables the writ to beissued to bring up “ the body of any person to be dealt with accordingto law”. Since the matter was argued at some length, I think I oughtto doal witli this question first.
It was decided in Oooneratnayaka v. Clayton 1 that the principlesupon which such a writ should be issued should be the same as thosewhich regulate the issue of the writ in England. Upon looking into thehistory of tho matter in England, I find that prior to the Judicature Aotof 1873 the writ was issued either by the Court of King’s Bench, wherethe common law was applied, or by the Court of Chancery, which exer-cised equity jurisdiction. Speaking of the latter jurisdiction, Lord Cot-tenham L.C. in the case of In re Spence 2 said: “Courts of law interfereby a habeas for the protection of the person of anybody who is suggestedto be improperly detained. This Court interferes for the protectionof infants, qua infants, by virtuo of tho prorogativo which belongs totho Crown as parens patriae, and tho oxeroiso of which is delegated tothe Great Seal.”
After the Judicature Act, proceedings were instituted in the Queen’sBench Division, and the Judges exercised the paternal jurisdiction whiohwas vested in the Court of Chancery as being the guardian of all infants.The Court had the power in that capacity to supersede the naturalguardianship of a parent. In JR. v. Oyngall3 Lord Esher M.R. explaining
1 (1929) 31 N. L. E. 132.* 2 Phillips 247.
8 (1893) 2 Q. B. 232.
SANSONI, J.—Weragoda v. Weragodo
how the Chancery jurisdiction was exercised said :“ The natural
parent in the particular case may be affectionate, and may be intendingto act for the "child’s'good, but may be unwise, and may not be doingwhat' a wise, affectionate and careful parent would do. The Courtmay say in such a case that, although they can find no misconduct on thepart of the parent, they will not permit that to be dono with a childwhich a wise, affectionate, and careful parent would not do.” Thejurisdiction, however, must be exercised judicially and with cautionbefore the parental right is interfered with, though its exercise “ is notconfined to cases where there has been misconduct on the part of theparent.” He cited the case of In re Fynn1, where Knight Bruce V.C.said : “ Before this jurisdiction can be called into action, it (i.e. the Court)must be satisfied, not only that it has the means of acting safely andefficiently, but also that tho fatlior has so conductod himsolf, or hasshown himself to be a person of such a description, or is placed in such aposition, as to render it not merely better for the children, but essentialto their safoty or to thoir wolfaro, in so mo vory sorious and importantrespect, that hia right should bo troatod as lost, or suspended—should besuperseded or interfered with. If the word ‘ essential ’ is too strongan expression it is not much too strong.”
In the case of In re Agar Ellis2, Brett M.R. after pointing out thatthe question before the Court upon habeas corpus is whether the personis in illegal custody without that person’s consent, said that up to acertain age children cannot consent or withhold consent and the Courtdoes not inquire in such cases whether the child consents to be whereit is. (The age is now accepted as 14 in the case of boys and 16 in thecase of girls.) The principles upon which the Court acts woro also statedby Coleridge J. in I?, v. Oreen/iill3 whoro in dealing with a oaso suchas the present one he said :“ Where the person is too young to have a
choice we must refer to legal principles to see who is entitled to thecustody, because the law presumes that where the legal custody is norestraint exists ; and where the child is in the hands of a third personthat presumption is in favour of the father.” The learned Judge, how-ever, added “ but, although tho first prosumption is that the right custodyaccording to law is also tho froo custody, yot, if it bo shown that orueltyor corruption is to be apprehended from the father a counter prosumptionarises.” It has been pointed out over and over again that the writhas always been used with respect to the custody of infants in orderto decide whether tho porson in whoso custody they are shouldcontinue to have them. ” In such oases it is not a question of libertybut of nurture, control, and education ” —per Lord Esher. M.R. in
v. Bamado, Jones’s case*.
1 2 D. G. db S. 457.
* (1883)24 Ch. D. 317.
» 4A.de E. 624.
* (1891) 1 Q. B. 19i.
oaixouim, o .— w eraguua, v. w trayuaa
I do not think it necessary to go into this aspect of the matter anyfurther. The authorities I have cited appear to me to answer sufficientlythe objection taken by Mr. Jayewarclene and I think that section 45 (a)covers those cases where the writ is used with respect to the custody ofinfants. In those cases the writ is issued not in order to enquire whetherthe infant’s liberty is restrained but in order that the Supreme Court,may decide what order should be made, after inquiry, as to the child’acustody, in the interests of tho child. This question is quite distinctfrom the question as to who should be appointed a curator of theproperty and a guardian of the person of a minor, under Chap. 40 ofthe Civil Procedure Code, and the two should not be confused.
The next matter I have to consider is whether the petitioner’s appli-cation should be granted or not. In McKee v. McKee1 Lord Simonds,delivering the judgment of the Privy Council, said that in questions ofcustody “ the welfare and happiness of the infant is the paramountconsideration.. .to this paramount consideration all others yield.”
It is true that he was there dealing with a case from Canada, but hesaid that the same principle applied in England. I have no doubt thatthis is the principle that should guide me in the present application also.Although in England tho principle applies bocauso, I supposo, the Courtis the guardian of all infants, in Roman-Dutch Law the State is regardedas the upper guardian of all minors. I do not think there is any ma-terial difference in the two concepts. In deciding what is best for thechild, the Court will have regard to the rights of oithcr parent, theircharacter, and any other factors which the Court thinks ought to beweighed.
Much stress was laid by Mr. Jaycwardone on the Roman-Dutch Lawprinciple enunciated in Calitz v. Calitz2 that the rights of the fatherare superior to those of the mother in regard to the custody of thechildren of the marriage, and where no divorce or separation has beengranted, the Court has no jurisdiction to deprive the father of his custody“ except under the Court’s powers as upper guardian of all minors tointerfere with the father’s custody on special grounds, such for exampleas danger to the child’s life, health or morals.” I think that danger tothe child’s life, health or morals is only an example of the special groundswhich would justify the interference of the Court. As I see it, theCourt will decide who is to have the custody of the child after taking intoaccount all the factors affecting the case and after giving due effect toall presumptions and counter-presumptions that may apply, but bearingin mind the paramount consideration that the child’s welfare is thematter that the Court is there to safeguard. The rights of the fatherwill prevail if they aro not displaced by considerations relating to thowelfare of tho child, for a petitioner who seeks to displace those rightsmust make out his or her case.
1 (1951) A. C. 352.
2 (1939) A. D. 56..
SANSONI, J.—Weragoda v. Weragoda
I have before me a careful and well-considered report made by thelearned Magistrate before whom both parents gave evidence. He haeformed a most unfavourable impression of the character of the 1st res-pondent, and has disbelieved him wherever his evidence came intoconflict with that of the petitioner. According to his findings, tho 1strespondent left the matrimonial home on 20th February, I960 and re-turned to it on 1st April 1960, only to leave it again on the followingday. On 8th April, tho day Indore, the Master holidays wore to begin,ho went to tho school whore tho child was and removed the child, aftergiving the Headmastor a false excuse. There is no doubt thathe acted callously, without any regard for his wife’s feelings ; and it isprobably true that he is using the child to bring pressure on his wife tomake her more submissive to him, so that she and her mother mightprovide him with more money, as they had been doing all along.
The 1st respondent has also boon guilty of making entirely unfoundedsuggestions of immoral conduct against the petitioner in respect of two-men. There is a possibility that the child’s mind might be poisoned andturned against his mother if ho were to roinain with his father. The1st respondent's departure frotu tho matrimonial home appears to beunjustifiable, while the petitioner has behaved quite properly throughout.The learned Magistrate also found that the 1st respondent assaulted hiswife when his demands for money were not met.
T d<> not. think it, is necessary to discuss the evidence at any lengthbecause 1 am in agreement with the view which the learned Magistrateformed of the parties, and his opinion as to what would bo in the bestinterests of the child. I would not like it to be thought that the motheris being preferred because sho is wealthier than tho father or can givethe child a moro comfortable homo ; such a consideration would notdisable him in any way from having the child’s custody. But he doesseem to be lacking in a due sense of responsibility when he allows himselfto be arrested for non-payment of a sum of Rs. 169/- due as income tax.The child, if left where he is, would be brought up by his father and twoor throe servants, and T think it is bettor in all the circumstances thathis mothor should have the custody. I direct, however, that the fathershould have the right to visit the child once a week at the petitioner’sresidence, or any other place to be agreed upon between the parties, or tobe decided on by the Magistrate if the parties cannot agree.
A. D. WERAGODA, Petitioner, and R. WERAGODA and another, Respondents