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Present : Fisher C.J., and Drieberg and Akbar JJ.
In the Matter of an Application for a Writ of Habeas Corpus.GOONERATNAYAKA v. CLAYTON.
Habeas corpus—Custody of girl over sixteen gears—Riqhi of parents—Wishes of girl—Age of discretion.
Where a father -seeks to resume control of the custody of a girlof over sixteen years by a writ of habeas corpus.
Held, that it was competent to the Court to take into consider-ation .the wishes of the girl, in determining the question of custody.
HIS was an application for a writ of habeas corpus bythe petitioners, the parents of the second respondent, for the
production of the body of their daughter, the second respon-dent, who was placed by the petitioners in the custody of the firstrespondent for education at a boarding school, of which 'thefirst respondent-was the principal.
The second respondent was seventeen years of age. The questionreferred to a Bench of three Judges was whether the Court shouldtake into consideration the wishes of the second respondent indetermining the question of custody.
F. de Zoysa, K.C. (with W. M. de Silva), in support.—Under theRoman-Dutch law parental power only ceases when the childattains full age (Lee’s Roman-Dutch law, p. 33).
Full age is now fixed by law at twenty-one. Until the childattains full age it is under the natural guardian, the father or themother (17 Hals. 109). A father, whose infant child is not in hiscustody, and a mother, when she is entitled to the custody, may,in the absence of good reason to the contrary, obtain the custodyof the child by a writ of habeas corpus.
If the child be not of age to exercise discretion the Court mustmake an order for its being placed in proper custody, and thatcustody is undoubtedly that of the father. In the matter of Saithri.1
Oarvin, for respondent.—When the minor has attained the ageof discretion her wishes must be consulted (17 Hals. 106, 113 (AgarEllis v. LascellesY). As to what is the age of discretionvide 1 P. and D. 221 (Mallison v. Mallison). The power of choicedepends upon age (Queen v. Jayalcody 3). The English law shouldbe applied.
The writ of habeas corpus is not known to the Roman-Dutch law.It was extended to Ceylon by the Charter of 1801 and 1833. Thebasis of the application is that the custody is illegal. If a person,having the capacity to make a choice has done so, the Courts willnot interfere.
11$ Bombay 311.* (1S33) L. It- 24, Ch. D-317.
*9 S.C. C. m.
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September 27, 1229. Fisher C.J.—
In this case the petitioners, who are the parents oi the secondrespondent, prayed this Court “ to issue a writ in the nature ofhabeas corpus ” for the production of their daughter who “ wasplaced by the petitioners in the custody of the first respondent forher education at Clodagh Mount Boarding School, Matale, of whichthe first respondent is the principal,” and the question referred to usfor decision is whether the wishes of the second respondent who isseventeen years of age can be taken into consideration in decidingwhether a mandate in the nature of a writ of habeas corpus shallissue or not.
The first point argued before us was whether the Koman-Dutcblaw or English law is applicable. Jurisdiction to issue ” mandatesin the nature of writ6 of habeas corpus " originally conferred onthe Supreme Court by section 49 of the Charter of 1833 is nowvested in the Supreme Court by section 49 of the Courts Ordinance,1889, which enacts that “ The Supreme Court or auy Judge thereof
shall be and is hereby authorized to grant and issue
mandates in the nature of writs of habeas corpus to bring upbefore such Court or Judge—
“ (a) The body of any person to be dealt with according to law;“ (6) The body of any person illegally or improperly detained inpublic or private custody;
and to discharge or remand any person so brought up, or otherwise
deal with such person according to law”
There is a proviso that the Court or Judge may require the personin question to be brought up in the nearest District Court, Court ofBequests, or Police Court in order tnat the Judge, Commissioner, orMagistrate of the Court may “ inquire into and report upon the causeof the alleged imprisonment or detention to such Court or Judge.”It is clear that the mandate referred to is equivalent to a writ ofhabeas corpus, and I think that the principles which regulate theissue of such a mandate should be the same as those which regulatethe issue of a writ of habeas corpus in England. We should there-fore, in my opinion, apply English law in considering the questionwhich has been submitted to us. Dealing with the present case onthat footing we have to consider whether the person whose custodyis in question is illegally or improperly detained, that is to say, isthere detention involving constraint in the sense that she is in thecustody of the first respondent against her will and consent?
According to decisions which have been accepted and acted uponas authoritative for many years the age of consent in such cases isnot the same as the age of legal capacity or the age at which an infantin the eyes of the law becomes entirely independent of parentalcontrol, but in the case of girls sixteen is the age when they reach an
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age of discretion at which their choice and wishes can be taken intoconsideration. In the case of re. Agar Ellis1 Brett M.R. says: —‘‘It is the universal law of England that if any one'person allegesthat another is under illegal control by anybody, that person,whoever it may be, may apply for a habeas corpus and thereuponthe person under whose supposed control, or in whose custody theperson is alleged to be illegally and without his consent, is broughtbefore the Court. But the question before the Court upon habeas■corpus is whether the. person is in illegal custody without thatperson’s consent. Now up to a certain age children cannot consentor withhold consent. They can object or they can submit. Butthey cannot consent. Because the Court cannot inquire into everyparticular case, the law has now fixed upon certain ages—as toboys the age of fourteen and as to girls the age of sixteen—up towhich, as a general rule, the Court will not inquire upon a habeas■corpus, as between the father and the child, as to the consent of thechild to the place, wherever it may be. But above the age offourteen in the case of a boy and above the age of sixteen in the caseof a girl, the Court will inquire whether the child consents to bewhere it is; and if the Court finds that the infant, no longer a child,but capable of consenting or not consenting, is consenting to theplace where it is, then the very ground of an application for ahabeas corpus falls away. I say if it is the father who applies forthe habeas corpus the habeas corpus is not granted. That seems tome to have been the rule, whether the habeus corpus was applied forto a Judge of the Court of Equity or to a Judge of a Court of Commonlaw.and in the case of 11. v. Howes 2 Cockburn C.J.
3aVs:—“Now the cases which; have been decided on this subjectshow that although a father is entitled to the custody of his childrentiil they attain the age of twenty-one, this Court will not grant ahabeas corpus to hand a child which is below that age over to itsfather provided it has attained an age o.f sufficient discretionto enable it to exercise a wise choice for its own interests.’’ TheEnglish law on the subject is summarized in Halsbury’s Laws ofEngland, Vol. XVII., pp. 109, 110, as follows:—“ Where an infantwho has passed tender years and is of a reasonable age, is out of aparent’s custody and desires' to remain out of it, he will not becompelled to return to it, if his welfare does not so require,’’ andin Eversley’s “ The Law of Domestic Relations,’’ 3rd Ed., at page517, it is stated that “ where the children are not in the custody oftheir father or guardian, and he seeks to resume his control byhabeas corpus in cases where they are arrived at the age of discretion,and are capable of exercising a choice they will be permitted toelect whether or not to return to their father’s or guardian’s control,but their (jhoice must he a wise one and for their own interests,”
1 (1883) L. ft. 24 Ch. D. at pane 328.1 (1800) 3 R. <<• E. 330.
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and an instance is given indicating that where the surroundings in 1928.
which a girl was living were undesirable her consent to remain jrISHBB 0_j#
there would not be attended to.~~
The principles regulating the issue of a writ of habeas ■ corpus in yakav.cases such as the present case are therefore clear, and it is also clearthat they are applied irrespective of the strict legal rights of afather with regard to the custody of his child. Applying theseprinciples to the question before us, I am of opinion that the wishesof the second respondent can be taken into consideration in theinquiry which is being held. In arriving at this conclusion it wouldseem that we are endorsing the practice which has prevailed inthis Court in similar cases for a very long period. In Thomson’sInstitutes of the Laws of Ceylon, Vol. I., at page 214, after statingthat most of the civil cases of habeas corpus in Ceylon arise upon theright to the custody of children, the law is stated .to be as follows: —
“ If the Court is convinced that the child is of an age andintelligence to choose for itself with whom it will live, andif that person is respectable and able to maintain thechild, it will leave the choice to the child. ’ ’ (Be Mast an.1)
And in the case of The Queen v. Jayahodi,2 in which the custodyof a girl under sixteen years of age was in question, Clarence.
A.C.J. held that inasmuch as she had not attained the age of sixteenhe could not take her wishes into consideration.
The question submitted to us should therefore, in my opinion, beanswered as set out above, and the costs of this reference should bedealt with by the learned Judge who is holding the inquiry.
I agree with the judgment of my Lord the Chief Justice.
It was contended for the petitioner that the parties being Low-country Sinhalese and the question of the nature and extent of thepetitioner's right being a matter of personal law, the Boman-Dutcblaw was applicable. It was said that the right of a father underthe Boman-Duteh law to the custody of his child while a minorwas absolute and that it was not open to a Court to take into con-sideration the wishes of the child in such a case as this, and thatthe Court had no option but to compel the return of the child to itsfather.
But it appears .from the authorities available to us that Courtsunder the Boman-Dutch law had the same power as the Courts ofEngland to consider and give effect to the wishes of a minor whohas attained years of discretion. In the case of Grant v. Dunbararid others,s a South African case, it was held that the Court had nopower derived from the interdict de liberis exhibendis or elsewhere
1 Nov. 16, 1654.1 (1890) 9 8. C. CirctOdr 148.
3 (1917) W. L. Di 17.
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t»2». to order the production of a minor child of years of discretion who• DitiEBEtto J. leaves its parents’ home against their wishes and remains volun-Ooo—~ina- tar^ot^ersunless persuaded by “artifice, seduction, or
yahav. solicitation.” The report is not available, but this is the note ofClayton the case in Vol. VII. of Bieset & Smith’s Digest of South AfricanCase Law (1917 and 1918), p.. 316.
The right which a minor child has under Ordinance No. 19 of 1907of appealing to the Court for sanction when the consent of theparents to its marriage is unreasonably withheld existed under theRoman-Dutch law (Van. der Keessel paragraph 76, Lorenz'stranslation).
The Courts also had the power to discharge “ honest and prudentyouths from tutelage without their being obliged to obtainvenia aetatis.
While this Court will have regard to the personal law applicableto the parties before it, it has the right, both under our Commonlaw and the law of England applicable to writs of habeas corpus,of taking into consideration the wishes of a minor who has attainedan age of discretion when it is sought to compel the return of theminor to his or her parent.
Akbar J.—I agree.