Jayawardena v Ranaweera
RANAWEERACOURT OF APPEALAMARATUNGA, J.
CALA 1/2003. (LG)
DC COLOMBO 21109/D.
Civil Procedure Code – section 621 and section 839 – Action for divorce -Custody of child – Judicature Act, of 1978Sections 24 (1) and (2), 24 (3).
Child alleged to be in illegal custody – Could an application under section 621be made or is it under section 24 (5) of the Judicature Act? – If not is it a fatalirregularity?
The petitioner-respondent husband instituted action seeking a divorce againstthe defendant-appellant wife. The defendant-appellant wife had also filed adivorce action, which was laid by until the disposal of the action filed by theplaintiff-respondent husband. There was an amicable arrangement made bythe parties for the plaintiff-respondent to have access to the child.
The defendant-appellant (wife) complained to court that the plaintiff-respondent (husband) had removed the child from school and was keeping thechild wrongfully and illegally in his custody. The defendant-appellant wifesought an order granting legal and physical custody of the child until theconclusion of the divorce case. The application was made under section 621and S.839. The plaintiff-respondent husband objected- to the application
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stating that since the allegation was that the plaintiff-respondent husband waskeeping the child in illegal custody she could not come under Section 621/839but she ought to have come under section 23 (4) of the Judicature Act. The trialJudge upheld the objection.
On leave being sought,
Per Gamini Amaratunga, J.,
“If a person making an application to a Court, refers to a wrong section asthe provisions of law under which such application is made such referenceto the wrong provisions of law in itself will not deprive a Court of itsjurisdiction it otherwise has".
The powers conferred by section 621 are wider than the jurisdictionconferred by section 24 (3), Judicature Act; section 621 does notrestrict the power of the District Court to any specific situation. It is awider general power.
Even though the defendant-petitioner has alleged that the plaintiff-respondent was keeping the child in wrongful and illegal custody, theCourt should have realized that a father’s custody of his child is notillegal unless such custody is in violation of an order of Court.
. There is no reference to a wrong section. Under section 621 Court had
power or jurisdiction to deal with the petitioner's application.
APPLICATION for leave to appeal from an order of the District Court ofColombo, with leave being granted.
Case referred to:
Kumaratunga v Samarasinghe – Vol 2 Fundamental Rights page 347at 372.
Ikram Mohamed PC with MS.A Wadood for petitioner.
Kuvera de Zoysa for respondent.
Cur. adv. vult
September 22nd, 2004.
GAMINI AMARATUNGA, J.This is an application for leave to appeal against an order made 01by the learned Additional District Judge of Colombo in respect of anapplication made by the defendant-appellant mother, in the courseof an action for divorce, to get an order from court granting the legaland physical custody of the child of the marriage to. her. Shortly, therelevant facts are as follows.
Jayawardena v Ranaweera
The plaintiff-respondent instituted action No. 21109-D seeking adecree for divorce against the defendant wife on the ground ofmalicious.desertion. He also sought an order granting custody ofthe child to him. The defendant wife also filed action No. 21104/Dpraying for a decree for divorce on the ground of the husband’sconstructive malicious desertion. She also claimed an ordergranting custody of the child to her. The case filed by the wife waslaid by until the hearing and disposal of the action filed by theplaintiff husband.
The child of the marriage, a son, was born in 1997. He was inthe physical custody of the defendant. There was an amicablearrangement made by the parties for the plaintiff husband to haveaccess to the child. On each Saturday at 5.00 p.m. the child washanded over to the' plaintiff husband for him to keep the child withhim till 8.00 a.m. of next Monday.
By a petition dated 1.10.2002, filed in action No. 21109-D, thedefendant alleged that on 10.9.2002, the plaintiff had removed thechild from the montessori school and was keeping the childwrongfully and illegally in his custody. By her petition she sought anorder granting the legal and physical custody of the child to her untilthe conclusion of the divorce case. The caption to her applicationfiled in court says that it is an application in terms of section 621and 839 of the Civil Procedure Code. The plaintiff husband raiseda preliminary objection to this application on the basis that since theallegation was that the plaintiff husband was keeping the child inillegal custody she could not come under section 621 and 839 ofthe Civil Procedure Code and that she should, have made herapplication under Chapter 5 of the Judicature Act No. 2 of 1978.The learned Judge upheld this objection and dismissed theapplication of the defendant-petitioner. This court granted leave toappeal against that order.
Section 621 (the relevant part) is as follows. “In any action forobtaining a dissolution of marriage or a decree of nullity ofmarriage, the court may from time to time … make such interimorders… as the court deems proper with respect to the custody… ofthe minor, children.” The words, “the court may from time to timemake such interim orders as the court deems proper with respectto the custody of minor children” confers on the District Court very
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wide powers to make interim orders relating to the custody of thechild.
Section 24(3) of the Judicature Act, which sets out thejurisdiction of Family Court is as follows:
“An application for the custody of a minor child or of the spouseof any marriage alleged to be kept in wrongful or illegal custody byany parent or by the other spouse or guardian or relative of suchminor child or spouse shall be heard or determined by the FamilyCourt; and such court shall have full power and jurisdiction to hearand determine the same and make such orders both interim andfinal as the justice of the case shall require."
This section caters to a specific situation, that is, where a minoris being kept in wrongful or illegal custody by a parent or any otherperson. Section 24(1) confers a general power upon the FamilyCourt jurisdiction in respect of custody of minor children.Jurisdiction conferred upon Family Court is presently exercised byDistrict Courts. The powers conferred by section 621 are wider thanthe jurisdiction conferred by section 24(3) of the Judicature Act.Section 621 does not restrict the power of the District Court to anyspecific situation. It is a wide general power.
The allegation that the plaintiff was keeping the child in wrongfulor illegal custody cannot take away the District Court’s wide powersunder section 621. Even though the defendant-petitioner hasalleged that the plaintiff-respondent was keeping the child inwrongful or illegal custody, the court should have realized that afather’s custody of his child is not illegal unless'such custody is inviolation of an order of a court. What the defendant-petitioner in factalleges was that the child who was in her physical custody at thetime the divorce action was filed, was taken away by the fatherwithout her consent or without an order of a court. What shecomplained of was the plaintiff’s action in taking physical custodyon his own, without any order of court when the question of thechild’s custody was a matter pending before Court for a decision. Insuch a situation the District Court was certainly entitled to inquireinto the complaint of the petitioner and make an order under section621 of the Civil Procedure Code.
fBalaoatabendi. J. )
If a person making an application to a court, refers to a wrongsection of a statute in the caption as the provision of law underwhich such application is made, such reference to the wrongprovision of law in itself will not deprive a court of its jurisdiction itotherwise has. If the Court has jurisdiction under another provisionof law to deal with the substantive matter raised in the application,the court has jurisdiction to deal with such matter notwithstandingthe reference to a wrong section in the caption. Vide Kumaratungav Samarasinghe 0)
In this instance there was no reference to a wrong section. 90Under section 621 the court had power or jurisdiction to deal withthe application of the petitioner. Accordingly I set aside the order ofthe learned Judge dated 16.12.2002 dismissing the petitioner’sapplication. I direct the learned Judge to hold an inquiry into thedefendant petitioner’s application dated 01.10.2002 and make anappropriate order. The defendant-petitioner is entitled to Rs. 7500/-as costs of this application.
WIMALACHANDRA, J. – I agree.
District Judge is ordered to hold an inquiry.