007-NLR-NLR-V-73-D.-ENDORIS-Petitioner-and-D.-KIRIPETTA-and-2-others-Respondents.pdf
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– Endoris v. Kiripetta
Present: de Kretser, J.
D. ENDORIS, Petitioner, and D. KIRIPETTA and 2 others,Respondents
S. C. 245/67—Habeas Corpus Application
Habeas corpus—Custody of child—Preferential rig?U of parent.
In a habeas corpus application made by the petitioner in respect of his son‘who teas 8 years old and who had been brought.up by his aunt (the petitioner'ssister) from the time his mother died when he was about a month old—
. Held, that a court will not deprive a parent of the custody of a child for thereason only that it would be brought up better and have a better chance in life' if given over, to another. It is for the person seeking to displace the natural- .‘ right of the father to the custody of his child, to make out his case that :Consideration for the welfare of the child demands it.
(''} (1946) 74 C. L. B. 46.* (1966)^lS-L. JR. 265 P. O.
.V . '..
BE KRBfSEH, j.—Endoris r. Kiripttia
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PPLICATIOX for a writ- of habeas corpus.
O.S. Mampana, for the petitioner.
C. D. S. Sir hear dene, with Miss Adda A bey mine, for tlio respondent.
Cur. ado. vult.October 22, 19CS. de Kretser, J.—
This application concerns the custody of the third respondentD. Wimalasiri born 7. 12. GO who lias been brought- up by his aunt thefirst respondent and her husband the second respondent from the timehis mother Baby Nona died when he was about a month old and hisfather Endoris tho petitioner had no one clso to look after tho infantchild.
If the truth is that tho child was given, as tho respondents claim, tothem for adoption and it was not a ease of the petitioner taking advantageof the kindness of his sister as a temporary way out of the difficultiesthat beset him when his wife died—on which point there is no findingof fact by the Magistrate who Irrrs-eontented himself with giving a rcsum6of tho evidence given by tho parties—it is a pity that the respondenttook no stops under the Adoption of Children Ordinance, Cap. G1 ofVol. 3 of the L. E., to obtain an adoption order from tho court havingjurisdiction over the matter. As Nagalingam A.C.J. points out inAbeyuardene v. Jayanayakc1, under tho Roman Dutch Law tho naturalparent has a right to the custody of his child and that custody can onlybo terminated under the law under circumstances which arc wellrecognised. Tire mere delivery of a child by its natural parent to athird party docs not invest- the transaction with legal consoquonccs.If tho parent has tho right to hand over custody of a child then thatparent would also have tho undoubted right to resume tho custodj'himself, as the authority of tho parent must prevail in the latterinstanco as much as in the former.
In considering an application for custody the rights of tho fathermiisTprcvail i ft hey ate not displaced by considerations relating to thowelfare of the child which is the paramount consideration that tho courtis thcro to safeguard and to which all others must yield:But os
Drieberg J. pointed out i a Ran Men ike v. Paynter2 this docs not moanthat a court can deprive a parent of tho custody' of a child for thoreason only' that it would be brought up better and havo a better chanceill lifo if given over to another. Tho court- cannot have regard only to
1 {1063) 55 A’. L. H. 54.* (1032) 31 xV. L. Jl. 1£7.
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DE' KRETSER, J.—Endoris v. Kiripclla
tho balance of advantages. Justice Drieberg cites with approval thopassage from tho judgment of Knight Bruc-o in tho case of In re Fynn
do G. and S. 457 at 474 :
" It (tho court) must bo satisfied. . .. that tho father has
so conducted himself or lias shown himself to bo a person of suchdescription, or is placed in such a position, as to render it not merelybetter for tho cliildrcn but essential to their safety or to their welfare,in some Tory serious or important respect, that his rights should botreated as lost or suspended—should bo superseded or interferedwith. If the word essential is too strong an expression it is notmuch too strong.”;
In tho instant case tho Magistrate has.been much impressed by thoview expressed by the father of the petitioner and tho first respondentthat it would be in tho interests of tho cliild that it should continue intho caro and custody of the first and second respondent. In recommend-ing that tho custpdy should so remain tho Magistrate (K. Pnlakidnar,Esq.) says "if the third respondent wero to bo restorcjfto the petitioner,it would bo a rather unhappy feature that he would b(Mthereby deprivedof the maternal caro which he has hitherto got from the*first respondent,his. aunt. Tho petitioner may bo able to caro for him, but emotionallyhe would bo deprived of tho caro of his foster mother who has nurturedhim from his very birth. '… .The opinion of his grandfather
Kirisantlia and tho reassurance of tho second respondent while ho gaveevidence aro both factors which cannot bo_ lightly regarded. On thoother hand tho petitioner’s new’-found interest in tho corpus thoughnatural as father has to be viewed in the light of his total renunciationto any kind of paternal concern for the third respondent since his birth. ■The petitioner has not established any reasonable and good groundas to why the child’s position should be altered in any way ”. In sayingso, the Magistrate lias lost sight of tho fact that it is for tho personseeking to displace the natural right of the father to;it ho custody of hischild, to make out his case that consideration for tho welfare of thochild demanded it. It is in evidence that tho petitioner has his ownhouse and grown-up children (ivo with him. HiS . evidence that hogets an income of Rs. 40 to 50 a month from his tea land is not challenged.There is no evidence that if tho child was in his custody there would bodanger to its life, health or morals. It is true thatttlio child would bodeprived of tho love and care of tho first and second respondents butI do not think that at tho age of 8 years tho emotional upset of being__away from them is something that he cannot get over. lt may-bo that_if left with the respondents tho child would bo brought up with more-loving care but that is no reason to deprive the father of his rights tothis child—Ho is a father who on tho evidence has brought up many. 'children to manhood and womanhood. One of them today is the Managerof a co:op. storo and educated to the S. S. C. standard. His daughter has4 a child of about tho same age as the third respondent. It appears to bo ‘
> truo ^that it is over a quarrel with the respondents that the petitioner
SAMERAWICKRAME, J.—Danny v. William23
has decided to ask for the custody of tho child. But one must also notforget that it may well be that tho quarrel only gave an opening for thepetitioner to ask what he had been loath to ask from his sister earlieras ho was under obligation to her for coming to his rescuo at a timo ofneed. As I said at the commencement of this order if it is truo thatat that time the petitioner was willing to let'the respondents adopt thechild, they have only themselves to blame for the sorrow they have nowbrought on themsolves by not taking tho steps the Law provides for theadoption of children.
Be that as it may, in my opinion no caso has been made out thatwould entitle me to hold that the welfare of tho third respondent demandsthat I should make an order interfering with tho natural right of hisfather to have his custody. I order tho first and second respondentsto hand over this child to tho petitioner on or before the 15th of November1963.
Application allmced.