de Silva v. de Silva.
1947Present: Soertsz S. P. J. and Canakeretne J.
DE SELVA, Appellant, and DE SILVA, Respondent.
S. C. 362—D. C. Colombo, 720 D.
Husband and wife—Divorce—Custody of child—Religious eduction of child—Husband's right of control.
A father is entitled to control the religious education of his child.
PPEAL from a judgment of the District Judge, Colombo.
A. Hayley. K.C., with H. W. Jayewardene, for the defendant,appellant.—The District Judge has found that the respondent was notinfluencing the child so as to be antagonistic to the appellant and that therespondent was particulalry respecting the wishes of the appellant in thematter of the religious education of the child. The judge furtherheld that the respondent was the most suitable persons to have thecustody of the child and that appellant was using the child as an instru-ment with which to harass the respondent. The Judge also in the courseof his judgment made some statements commenting adversely on theconduct of the appellant.
Analysis of the evidence shows that neither the findings nor thestrictures can be justified in any way. Every single finding on th;important questions of fact can be shown to be incorrect.
The appellant never gave up his undoubted right to the legal custodyof the child. The appellant obtained the divorce on the ground ofmalicious desertion by the respondent. The award of Mr W. H. Pereraas embodied in the Order of October 13, 1943 referred only to thephysical custody, i.e., care and maintenance of the child. Legal custodywas always with the appellant. All the relevant documents bear thatout. Legal custody is a recognised term for full rights of guardianshipSee Walter Pereira’s Laws of Ceylon (2nd Edition) p. 173 and Vol. 3Legislative Enactment p. 682.
The appellant is particularly anxious to have the child brought upas a Buddhist. The appellant undoubtedly has that right, and theDistrict Judge is clearly wrong in allowing full legal custody to therespondent. See Agar-Ellis v. Lascelles1; Hawksworth cs. Hawksworth2 :In Re Scanlan3.
Thiagalingam with J. Femandopulle, for the plaintiff respond-ent.—The findings in the judgment are correct and should not beset aside. Under the Roman-Dutch Law parental power belongs both
» L. R. (1878) 10 Ch. 49.3L. R. (1871) 6 Ch. 539.
3 L. R. (1888) 40 Ch. 200. 11
11 – N.L.R. Vol – xlix
CAJOTIKERATNE J.—de Silva v. de Silva.
to the father and mother. See Lee’s Intioduction to Roman-Dutch Law1915 Edition p. 32. See also Simleit v. Cunclijfe1. The child may notalways be brought up in the religion of his fether—Condon v. Vollum2.
A. Hayley, K.C., replied.
December 11, 1947. Canekeratne J.—
This is an appeal from an order of the District Judge. The appellantwas the husband of the respondent, and,the marriage which took placeon June 9, 1938 was dissolved by decree absolute on January 17, 1944,on the ground of desertion by the respondent—decree nisi being enteredon October 13,1943, There was one child of the marriage, Sriyan Ranjit,born on July 29, 1939. I do not find it necessary to go into the historyof these matters, save in order to set out the nature of one or two orderswhich must be understood before the position can be appreciated. Theappellant was a Buddhist, but appears to have been “ eclectic in hisviews ”, the respondent was the daughter of a Wesleyan Minister andhas always been a practising Christian. The parties separated aboutMarch 25, 1943. The action for the dissolution of the marriage—reliefbeing sought by both parties—was set down for trial on October 11,1943. The appellant’s Counsel, according to the finding of the Judge,made a suggestion on this day about settling the question of alimony(to the respondent) and of custody and education of the child. Theamount of alimony payable by the appellant was settled almost im-mediately, the question of .custody including up to what point of timethe respondent should have the child, and at what age the appellantshould have the child was referred by agreement between the parties ortheir Counsel to a well known member of the Bar.
On October 13, 1943, an order was made for custody of this little childin favour of the respondent for some time with access to the appellantana similarly in favour of the appellant with access to the respondent.The order embodied the terms of the recommendations made by theAdvocate in question with certain modifications. On December 28,1943, the father having then possession of his child under the ordermade an application that the order giving the custody to the mothershould be rescinded and that an order giving the “physical custody”of the child be made in his favour.
On April 18, 1944, the respondent filed her statement in anwser to thepetition of the appellant : she also made a counter application, seekingto have the words “ legal custody ”, appearing in the order made onOctober 13, 1943, deleted and to have an order relating to the care andcustody of the child in her favour. On June 20, 1944, the learned Judgehad before him the two applications ; a good deal of evidence was ledat the inquiry. The appellant gave evidence and called two medicalwitnesses. The respondent gave evidence and also as called witnessesthe Counsel who appeared for her at the trial, the Advocate who sentthe document X containing the recommendations to the Court andtwo other persons, all apparently disinterested witnesses. A medicalwitness also gave evidence on the respondent’s side. The learned1S. A. L. R. (1940) T. P. D. 67. a (1887) 57 L. T. R. (N.S.) 154.
CANEKERATNE J.—de Silva v. de Silva.
Judge after hearing the evidence, seeing the witnesses and consideringthe conduct of the parties came to certain conclusions. As was in-evitable he had to make up his mind on the conflicting testimony andarrive at a decision. His views on the facts were vehemently attacked,but it seems impossible for a Court of Appeal which has not seen thewitnesses to reverse his findings on matters which are really pure ques-tions of fact. His view was that there is no foundation for the allegationthat the respondent has been bringing up the child so as to be antagonisticto the appellant ; the respondent has after the decree refrained fromexercising any religious influence or teaching any religion to the childand has respected the present attitude of the appellant in regard to thechild’s religion. The learned Judge decided that the mother was themost suitable person to have the custody of the child. In the_resultthe learned Judge varied the order made on October 13, 1943, byordering the deletion of certain words and restoring the terms containedin the award marked X. Apart from the reasons given by the learnedJudge it seems to me that the new terms incorporated in document Xon October 13, are unworkable. The Order of the learned Judge willtherefore stand.
The other important matter for consideration relates to the religionof the child. The appellant agreed, according to the findings of thelearned Judge, that any children of the marriage should be brought upas Christians. The child, it is admitted, was baptized as a Wesleyanand though there is no finding that it was done with his consent, hebecame aware of it soon after. This, however, would not prevent the.appellant from treating the antenuptial promise as void and insistingon his right after the birth of the child to control his religious education—he can determine that the child be brought up as a member of his faith1.Since the beginning of the year 1944, the child has been attending LadiesCollege, Colombo, as a day scholar. The child, according to the learnedJudge, had, before the parents separated, learnt some lines of hymnsand had seen the mother kneeling at her prayers and was at this timeliving in a Christian atomsphere. There is no evidence that she in-structed the child in the doctrines of her Church or tried to bring him upas a Christian. The learned Judge finds that the mother has not beenusing her influence since November, 1943, to thwart the father’s wishesand plans as to the religious learning and education of the child. Thatthe mind of a child is capable at a very early age of receiving strongimpressions upon matters of religion is not to be denied. It is probableif one considers the appellant’s evidence that his mind has receivedsome impressions upon religious subjects which are at variance with thefaith which his father appears to hold. It is necessary to consider whatmight be the result of disturbing those impressions. It may be urgedthat the opinions of a child so young could not be fixed, and that theimpressions which this child received might be removed by a differentcourse of instruction. The father’s evidence shows that he has beenteaching him the precepts of his religion while the child was with him.One question would be whether the attempts to inculcate in him theseviews might not end in unsettling his impressions, and substituting
1 Aqar-EUis v. LasceUs (1878) Law Rep. 10 Ch. 49.
NAGAI.TNGAM J.—Alarikar v. Marliya.
no fixed impressions in thier place. It is, however, a matter for him.If the father comes to the conclusion that it is right and proper for hischild’s welfare that he should take means of bringing the child in his(the father’s) religion he must be left to be the proper judge of that.The respondent should realise that she is not entitled to take the childor cause or procure him to be taken to a Christian place of worship.
Subject to the direction, that the appellant has the right to controlthe religious education of the child, the appeal is dismissed with costs.
Soebtsz S.P.J.—I agree.