Abeyawardene v. Jayanayake
Present: Nagalingam A.C.J.
E. ABEYAWARDENE, Petitioner, and C. E. JAYANAYAKE,et al., Respondents
S. C. 190—-Application for a Writ of Habeas Corpus
Habeas corpus—Surrender and abandonment of a child by Us parents—Custodian’sduty of registration—Adoption of Children Ordinance, No. 2d of 19dl, ss. 19, 26.Where the custody of a child is transferred by its natural parent to a thirdparty in circumstances not amounting to adoption, it is generally the duty ofthe third party, under section 19 of the Adoption of Children Ordinance, to havehimself registered as the custodian of the child. Failure to register renders himliable to restore the child’s custody to the natural parent, even if the restorationis prejudicial to the best interests of the child.
Application for a tvrit of habeas corpus.
S, Jayawickreme, for the petitioner.
N.E. Weerasooria, Q.C., with J. A. P. Cherubim and A. W. W.Goonewardena, for the respondents.
Cur. adv. vult.
IXAGAIiIXGAM A.C. J.—Abeyawardene v. Jayanayake
September II, 1953. Xagalingam A.C.J.—
The petitioner who is mother of a child by the name of Nirmalie appliesto have its custody delivered to her after removing it from the custody ofthe respondents with whom it is at present.
The learned Magistrate to whom the matter was referred for inquiry hasin a very careful and lucid report given reasons for the view he has takenthat the child should be restored to its mother. I do not think I needtraverse the same ground, for counsel for the respondents did not himselfseek to question the soundness of the view expressed by the learned Ma-gistrate on questions of fact. He, however, attempted to show that thechild should not be removed from the custody of who might be termed itsfoster parents, and based bis argument upon the English case of Mathie-son v. Xa pier 1 where the right of the natural parent was not permittedto hold sway as against the claim of a third party who had received thechild in circumstances amounting to what has been referred to under theEnglish Law as surrender and abandonment of the child by its naturalparents.
It is true that the English notion of surrender and abandonment of achild has been recognized in more than one case in our coruts—seeGiinaratnayake v. Clayton2 and Samarasinghe v. Simon1 * 3, but no attempthas been made to show what are the legal consequences of surrender andabandonment, excepting that in such a case a court would bestow itsconsideration as to what is best for the child in the circumstances.
Under the Homan Hutch Law, the natural parent has a right to thecustody of his or her child and that custody can only be terminated underthat law under circumstances which are well recognized and clearlydefined 4. The mere delivery of a child by its natural parent to a thirdparty does not invest the transaction with any legal consequences. If theparent had a right to hand over the custody of a child then that parentwould also have the undoubted right to resume the custody himself, as theauthority of the parent must prevail in the latter instance as much as inthe former. We are quite used to the principles of adoption, though itdoes not apply to persons who are governed by the Homan Hutch Law.Adoption results in definite legal consequences, so far as the child, theadoptive parent and the natural parent are concerned.
It is, however, unnecessary to pursue the question as to the effect ofsurrender and abandonment, for the legislature has now stepped in andgiven legal recognition to the basic idea underlying the English notion ofsurrender. By the Adoption of Children Ordinance, No. 24 of 1941,
– adoption has been made legal even among persons governed by the RomanHutch Law. The Ordinance goes on to give legal recognition to thetransference of the custody of a child in circumstances-where the transac-tion may not amount to adoption, and defines the circumstances and theconsequences of such transference of custody. It uses a term for theperson who receives the child in these circumstances as the custodian
1 (1918fll9 L.T.R. 18.
* (1929) 31 N. L. R. 132.
3(1941) 43 K. L. R. 129.
4Lee ; An Introduction to Roman Dutch Law, page 42.
Deerasooriya v. Masilamany
of the child. The Ordinance came into operation on Is# February,1944 x. The delivery of the child in question was in 1947, at a datewhen the Ordinance was in operation, and section 19 of the Ordinanceprohibits any person, subject to certain exceptions which have noapplication to the facts of the present case, from taking or receivinginto his custody subsequent to the coming into operation of theOrdinance a child of which he is not a natural parent unlesshe has been registered as the custodian of the child. It is notsuggested in this case that any certificate of registration has been obtained,and in any event no such certificate has been produced. In fact theattention of neither counsel nor Magistrate seems to have been given tothe existence of the Ordinance.
The position in law, therefore, would appear to be that the respondents’custody of the child is illegal as such custody is in contravention of theprovisions of the Ordinance, and furthermore they are guilty of the offenceprescribed by section 26 of .the Ordinance. Their custody cannot, there-fore, be continued even if one were constrained to look at the problemfrom the point of view of what is good for and in the best interests ofthe child.
In view of the foregoing I grant the application of the petitioner anddirect that the child Jehanara Nirmalie Abeyawardene alias JayanthieJayanayake be restored to the custody of the petitioner, and remit therecord to the learned Magistrate for the order to be given effect to by him.The learned Magistrate will report to this court after the order has beenexecuted.