ATUKORALE AND OTHERS
COURT OF APPEAL.
ABEYWARDENE. J. AND GOONEWARDENA, J.
C.A. No. 194/86. H.C.A.
FEBRUARY 2. 1987.
Habeas Corpus-Article 141 of the Constitution-Custody of children-Interim order forcustody-S. 5 of the Judicature Act No. 2 of 1978. as amended by Act No. 71 of1981.
In terms of the s.5 of the Judicature Act No. 2 of 1978 as amended by Act No. 71 of1981 the District Court being deemed to be the Family Court has original and exclusivejurisdiction regarding the custody of minor children. Where the petitioner and herhusband, the 1 st respondent were trading allegations regarding morals, misbehaviourand adultery against each other the dispute regarding the custody of their minorchildren could properly be dealt with by the District Cou,l Under Article 141 of theConstitution the Court of Appeal may, if satisfied that any dispute regarding the custodyof minor children may be more properly dealt with in the Eistrict Court, direct the partiesto make their application to that Court.
M. A. Mansoor with K. S. Ratnaval for petitioner.
' Dr. H. W. Jayewardene, Q. C. with Chula de Silva and Miss S. Mivanapalana forrespondents.
February 2, 1987.
THE COURT DELIVERED THE FOLLOWING ORDER
The petitioner has filed an application in terms of Article 141 of theConstitution for a writ of Habeas Corpus against the five respondentsnamed in her application, the 1st respondent being her husband, the2nd and 3rd respondents being the children of the petitioner and 1strespondent, the 4th and 5th respondents being the father and motherrespectively of the 1 st respondent.
In her petition, the petitioner has prayed for an interim order for thecustody of the two children, the 2nd and 3rd respondents so that theyremain with the petitioner pending the inquiry and thereafter, for thecustody of the 2nd and 3rd respondents.
The 1 st respondent had filed a petition and affidavit and prayed thatthe petitioner be directed by this Court to make an application to theappropriate Court for the remedy that she is seeking. When this matterwas taken up for argument. Dr. H. W. Jayewardene, Q.C..for the 1strespondent submitted that in terms of Article 141 of theConstitution-
"If provision be made by law for the exercise by any court ofjurisdiction in respect of the custody and control of minor children,then the Court of Appeal, if satisfied that any dispute regarding thecustody of any such minor child may more properly be dealt with bysuch Court, direct the parties to make an application in that Court inrespect of the custody of such minor child."
It was his contention that this is an application made by the petitionerfor the custody of her children who are also the children of the 1 strespondent, her husband. The petitioner had in her petition madeallegations against the 1st respondent regarding his extra maritalrelationship, his association with other women, and constant quarrelsbetween them regarding his behaviour, whereas, the respondent hasstated that the petitioner is not a fit and proper person to have theinterim custody of the children as she is guilty of having committedadultery which has been admitted by the petitioner herself to the Policeand that if the petitioner be granted the custody of the children itwould cause serious harm and damage to the physical safety, health,morals and well-being of the children.
There are allegations regarding immoral behaviour and thecommission of adultery alleged by the petitioner and the 1strespondent against each other and proof of such acts beingcommitted by any one of them could render the other unfit to have thecustody of the minor children when considering their well-being.
The date for the filing of objections by the 1st respondent is the23rd of February, 1987 and the 1st respondent has in his petitionreserved the rights to file objections if so advised. The petition andaffidavit filed by the 1 st respondent are in respect of the applicationmade by the petitioner for an interim order regarding custody.
This matter was mentioned as the 1 st respondent has filed apetition and affidavit praying that the application for an interim orderbe rejected.
In terms of the Judicature Act, No. 2 of 1978 the Family Court shallhave sole and exclusive jurisdiction in respect of matters regarding thecustody of minor children. By the judicature (Amendment) Act,No. 71 of 1981, section 5 of the principal enactment is amended anda “District Court" is deemed to be the "Family Court" and it is theDistrict Court that has to exercise original and exclusive jurisdictionregarding the custody of minor children.
In view of the allegations made by both parties regarding morals,misbehaviour and adultery, we are satisfied that the dispute regardingthe custody of the minor children could properly be dealt with by theDistrict Court, wherein parties making the allegations could becross-examined in order to test the veracity of the witnesses and forthis reason, in terms of Article 141 of the Constitution of theDemocratic Socialist Republic of Sri Lanka, we direct the parties tomake application to the District Court in respect of the two childrenconcerned.
Parties referred to District Court.