SIVA SUPRAMANIAM, J.—Madulawathie v. Wilpus
1967Present: Siva Supramaniam, J.A. MADULAWATHIE, Petitioner, and E. A. WILPUS and another,
S. C. 223/64—Habeas Corpus Application
Habeas corpus—Custody of child—Father's preferential right.
In an application made by a wife for the issue of a writ of habeas corpus againsther husband in respect of the custody of their daughter who was 5 years and9 months old—
Held, that, so long as the bond of matrimony subsists, the father, as thenatural guardian, has the preferential right to the custody of a child bomof the marriage. Where the mother seoks to obtain the custody, the burden ison her to prove that the interests of the child require that the father should bedeprived of his legal right.
Application for a ■writ of habeas corpus.
R.D. C. de Silva, for the petitioner.
W. Athulathmudali, for the 1st respondent.
Cur. adv. vult.
August 22, 1967. Siva Supramaniam, J.—
This application concerns the custody of the 2nd respondent DayaLuxmie Edirisinghe, a girl 5 years and 9 months of age at present . Thepetitioner is her mother and the 1st respondent her father.
The petitioner and the 1st respondent were married in 1960 and theyhave another child, a boy about 3 years of age, who is with the petitioner.According to the petitioner, the 1st respondent left the matrimonial homeon 9th November 1963 and, in her absence, removed the elder child DayaLuxmie on 13th November 1963. The version of the 1st respondent,on the other hand, is that he had a quarrel with the petitioner on the 11thNovember in consequence of which the petitioner ordered him to leavethe house along with the children. Accordingly he left the house on the12th November taking with him only the elder child, who has been withhim since that date. On 9.1.64 the petitioner made an attempt to removethat child from the 1st respondent’s house but was unsuccessful. There-after she made the present application to this Court for the issue of a writof Habeas Corpus against the 1st respondent and for an order grantingher the custody of the said child. The 1st respondent made a similarapplication in respect of the younger child who was in the custody of thepetitioner but his application was dismissed £>n 6.4.1965 mainly on theground that the child who was of tender years (being only a little overone year of age then) needed a mother’s care and attention.
SIVA SUP RAM A NI AM, J.—Madulau-alhie v. Wilpus
The grounds of the present application were set out by the petitionerin her petition as follows :—
“ The respondent cannot give proper care, attention and motherly
affection to the 2nd respondent, her daughter, and in consequencethe child is in a continuous state of nervous anxiety
“ There is no proper person to look after the child as the 1st
respondent is always away from his home ”.
'.c)“ The 1st respondent threatened me with bodily harm whenever
I visited to see the child
At the enquiry held by the Magistrate into this petition, the petitioneralleged, that the 1st respondent was on terms of illicit intimacy with oneLeelawathie but she made no attempt at all to prove that allegation,which was denied by the 1st respondent. The 1st respondent made acounter allegation that the petitioner was on terms of incestuous relation-ship with her step-brother, one Sirisena, which, he said, was the cause ofthe quarrels between himself and the petitioner culminating in his leavingthe matrimonial home. He led some evidence in support of his allegationbut the learned Magistrate rejected it as a fabrication.
In an application of this nature for the custody of a child, theparamount consideration is the welfare of the child. It is settled lawthat, subject to that consideration, so long as the bond of matrimonysubsists, the father, as the natural guardian, has the preferential right tothe custody of a child born of the marriage. (Vide Calitz v. Calitz *,Ivaldy v. Ivaldy 2 and Weragoda v. Weragoda 3.) Where the mother seeksto obtain the custody, the burden is on her to prove that the interestsof the child require that the father should be deprived of his legalright. It would follow that unless she discharges that burden thefather is entitled to the custody. In the instant case, the learnedMagistrate, to whom the petition was sent for inquiry and report,appears to have overlooked this aspect of the question when herecommended that the custody of the child be granted to the petitioner.
Of the three grounds set out by the petitioner in her petition the lastone, namely that the 1st respondent threatened her with bodily harmwhenever she visited the child is irrelevant to the question underconsideration. I should state, however, that on the evidence led by her,that allegation is without any foundation. Her first ground, that thechild is in a continuous state of nervous anxiety owing to want of care andattention on the part of the 1st respondent, is also unsupported by anyevidence and would appear to be false. Her second ground, that thereis no proper person to look after the child as the 1st respondent is alwaysaway from his home, although it appears to have impressed the learnedMagistrate, does not bear examination. The evidence of the 1st respond-ent is that he is a cultivator. He would be away from home when hehas to attend to his duties*as a cultivator. The 1st respondent stated in
1 (1939) A. D. 56.* (1956) 57 N. L. R. 568.
3 (1961) 66 N. L. R. 83.
Sathappan v. J ayasinghe
evidence that he lives with his parents and younger sister and they are ina position to attend to the needs of the child in his absence. One does notexpect a father who wishes to have the custody of his child to give up allemployment and remain at home to be in constant attendance on thechild. Besides, the child is now of school-going age and the 1st respondentwill be in a better position to attend to her educational needs.
The learned Magistrate, however, has stated as an additional reasonfor his recommendation that if the custody of the 2nd respondent isgranted to the petitioner, both children will be able to grow up togetherand the 2nd respondent will have a companion to play with. Whileit is undoubtedly very desirable that the children of a family should havethe companionship of each other, particularly when they are young, thatcan hardly be the deciding factor in the determination of the questionunder consideration.
On the evidence led by the petitioner before the Magistrate, she hasfailed to show that the interests of the child require that the custodyshould be granted to her. In my view, the child w'ill be looked afterequally well by either parent and from the paint of view of her welfareit would appear to be immaterial whether she is with the petitioner orwith the 1st respondent. There does not seem to be any substance in thepetitioner’s allegation that the 1st respondent does not possess adequatemeans to bring up the child in reasonable comfort. There is no sufficientground therefore to interfere with the 1st respondent’s legal right and todeprive him of the custody of the child. In this view' of the matter, it isunnecessary to examine the 1st respondent’s allegation that the environ-ment in the petitioner’s home will be detrimental to the moral welfareof the child.
I dismiss the petitioner’s application.
If the petitioner wishes to have access to the child, the 1st respondentwill make suitable arrangements for that purpose. If the parties cannotagree on these arrangements, it will be open to the petitioner to make anapplication to the Magistrate who will give necessary directions afterhearing both parties.
A. MAULAWATHIE, Petitioner, and E. A. WILPUS and another, Respondents