Karunawathie v. Wijesuriya& Another
COUEX OF APPEAL.
RATWATTE, J. AND U H. DE ALWIS, J.
H.C. APPLICATION 100/78-JANUARY 17, 1980.
Wri t of Habeas Corpus—Custody of child—Subsisting marriage—Welfare of the child—Preferential right of the father.
The petitioner applied for a writ of habeas corpus against herhusband in respect of the custody of her daughter, 4 years and 4 monthsof age. The marriage between the parties was not dissolved. Noallegation had been made by the petitioner that her husband was nota fit" and proper person to have the custody of the child. The learnedMagistrate recommended that custody be granted to the petitioner onthe eround that the child needed her care and affection, in view of itstender years.
It is the Roman-Dutch Law which governs the principles applicable tothe custody of minor children in this country and where the bond ofmatrimony subsists, the father has the preferential right to custody ofthe child, subject to a paramount consideration namely, the welfareof the child. The burden of satisfying the court that such considerationarises would be on the mother. As no such case has been made out bythe peti.ioner in this case, the father (1st respondent) would beentitled to custody.
Cases referred to
(11iValdy. (1956) 57 NLR 568; 53 C.L.W. 81.
PremawatMe v. Kndalugoda Aratchi, (1970 ) 75 NLR 398.
Kamalawathie v. De Silva (1961) 64 NLR 252 ; 60 C.L.W. 21.
Padma Fernando v. T. S. Fernando (1956) 58 NLR 262.
Vreragoda v. Weragoda, (1961) 66 NLR 82; 59 C.L.W. 49.
5Ick.ee v. Mckee, (1951) A. C. 352.
Calitz v. Calitz, (1939) A.D. 59.
?8) Short v. Naisbp, (1055) (3) S.A. 572.
Percia Fernando v. Dudley Fernando, (1968) 70 NLR 534.
Madulawathie v. Wilpus, (1967) 70 NLR 90.
Rajalurmi v. Sivananda Iyer, (1972) 76 NLR 572.
APPLICATION for a Writ of Habeas Corpus.
A. de Silva, for the petitioner.
Mustapha, for the respondent.
Cur, adv. vult.
Karunawafhie v. Wijesuriya (De A!v»s, J.)
February 15, 1980.
L. H. DE ALWIS, J.
The petitioner, in this application for a writ of habeas corpus,seeks to have the custody of the 2nd respondent, her daughter,named Monica, presently of the age of 4 years and 4 months. Thechild is with the 1st respondent, who is the husband of the peti-tioner and the father of the child.
The petitioner and the- 1st respondent were married on29.11.74 and the child was bora on 6.9.75. There appears to havebeen constant quarrels between the couple, though not of aserious nature, which ultimately led to the 1st respondent gettingdown the petitioner’s parents and sending her away on 1.4.78.On that occasion a complaint and a counter-complaint were madeto the Grama Sevaka of the area, before the parties separated.No allegation of immorality is made by either party against theother. The petitioner alleges interference by the 1st respondent’smother and other members of the family in their domestic affairswhile the 1st respondent complains of neglect of the home andthe child on the part of the petitioner. These allegations howeverhave not been established.
The petitioner had asked for the custody of the child beforethe Grama Sevaka, but the 1st respondent had refused to handover the child and he is presently keeping the child with him. Itis in these circumstances that the petitioner filed this applicationfor a writ of habeas corpus on 9.5.78.
The Magistrate to whom the petitioner was referred for in-quiry and report has recommended that the custody of the childbe given to the petitioner on the ground that it needs the careand affection of the mother, in view of its tender years.
It is contended on behalf of the 1st respondent that theMagistrate’s approach to the question of the custody of the childwas wrong. He has posed the sole question for determination aswhether the child needed the care and affection of the mother,totally ignoring the rights of the 1st respondent as father to itscustody, since the marriage had not been dissolved. It is furthercontended that the consideration of the child’s interest as paramount in questions of custody is a concept of English law whichis foreign to the Roman-Dutch Law.
It is settled that the principles which govern the custody ofminor children in this Country is the Roman Dutch Law and notthe English Law. In Ivaldy v. Ivaldy (1), H. N. G. Fernando, J.said “ there have been many decisions in Ceylon which, purportto follow English precedents in disputes as to the custody of
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children, and which, by reason of the essential similarity of theEnglish and the Roman-Dutch principles will in all probabilitybe found to, conform with the latter. But if, as I think, the RomanDutch Law is applicable in determining whether the right of aparent to custody should be enforced or not, then there shouldbe direct resort to Roman-Dutch Law.”
In Pemawathie v. Kudalugoda Aratchi (2) the Supreme Courtheld that the question who has the right to the custody of achild must be determined by the law applicable to the partiesin question and once it is determined by the legal system appli-. cable toat the right to custody exists, it is then that the writ ofhabeas corpus would issue. The consequence of the issue of theWrit, the manner of its issue and the procedure and practice tobe followed would of course be determined by the English Law.See also Kamalawathie v. De Silva (2). The question that arises-now is whether Roman-Dutch Law recognizes toe concept ofthe best interests of the child as a p aramount consideration inmatters pertaining to the custody of children.
Lee in—An Introduction to Roman-Dutch Law—5th Edn. p. 34,says that in Roman Dutch Law the custody, control and educationof minor children belong to the father during his lifetime, unlessthe Court orders otherwise and subject to the paramount con-sideration of the children’s welfare.
In Ivcddy v. Ivaldy (1) it was held that under the RomanDutch Law, where there has no legal dissolution of thecommon home, the father’s right to the custody of his minorchildren remains unaffected by the fact of the separation of thespouses and can only be interfered with on special grounds, such,for example, as danger to the life, health or morals of thechildren. See also Padma Fernando v. T. S. Fernando (4).
Sansoni, J. as he then was, in Weragoda v. Weragoda (5) citedwith approval the dictum of Lord Simonds in the Privy Councilcase of Mckee v- Mckee (6) on the question of custody ofminors as follows: “ the welfare and happiness of the infant isthe paramount considerationto this paramount considera-
tion all others yield. ” That was a case from Canada but as LordSimonds observed, it is also the law of England. Sansoni, J. wenton to say “ I have no doubt that this is the principle that shouldguide me in the present application also. Although in Englandthe principle applies because, I suppose, the Court is the guardianof all infants in Roman-Dutch Law the State is regarded as theupper guardian of all minors. I do not think there is any materialdifference in the two concepts. In deciding what is best for thechild, the Court will have regard to the rights of either parent,
CAKarunawalhie v. Wijesuriya (De Alwis, J.)17
their character, and any other factors which the Court thinksought to be weighed. ” deferring to the Roman-Dutch lawprinciple enunciated in Calitz v. Calitz (7) that the rights ofthe father are superior to those of the mother in regard to thecustody of the children of the marriage, where no divorce orseparation has been granted and that the Court has no jurisdic-tion to deprive the father of his custody, except under the Court’spowers as upper guardian of all minors to interfere with thefather’s custody on special grounds, such for example as dangerto the child’s life, health or morals, he said, “I think -thatdanger to the child’s life, health or morals is only an exampleof the special grounds which would justify the interference of theCourt. As I see it, the Court will decide who is to have thecustody of the child after taking into account all the factorsaffecting the case and after giving due effect to all presumptionsand counter-presumptions that may apply, but bearing in mindthe paramount consideration that the child’s welfare is the matterthat the Court is there to safeguard. The rights of the fatherwill prevail if they are not displaced by considerations relatingto the welfare of the child, for a petitioner who seeks to displacethese rights must make out- his or her case. ”
In Short, v. Naishy (8) Henochsherg, A. J. said “ Such specialgrounds included danger to the child’s life, health or morals, butthese are not the only grounds on which a Court will interfere.Good cause must be shown before a Court will interfere, butgood cause is not capable of precise definition. Each case must,therefore, be considered on its merits. ”
Tambiah, J. in Kamalawathie v. De Silva (3) after reviewingall the authorities which recognised the right of the Court toorder the father to hand over the custody of the child to themother if such a course is necessary in the interests of the child’slife, health or morals, said, “ the citations in the various cases,which have established this principle, show that our Cburts haveoften relied on English decisions and sometimes on the Roman-Dutch law, to formulate this principle. Law, like race, is not apure blooded creature. ”
Weeramantry, J. in Precia Fernando v. Dudley Fernando (9)cited the dictum of Lord Simonds in Mckee v. Mckee (6) andobserved that “ there can be no doubt that in all questions ofcustody, the interests of the child stand paramount, a principleon which the English and modern Roman-Dutch Law are agreed. ”The same Judge in Pemawathie v. Kudalugoda Aratchi (2) said" There is no dearth of authority in the recent decisions of thisCourt recognizing the overriding importance of the welfare of
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the child even in cases where the natural guardian’s claim is
resisted by a strangerA review' then of the decisions oi
this Court for a period of well over hundred years speciallyrecognizes that the right of the parent may be superseded byconsiderations of the welfare of the child. ”
Thus in an application for a writ oi habeas corpus for the
custody of a child, the paramount consideration is the welfare-of the child. It is settled law that, subject to that consideration,so long as the bond of matrimony subsists, the father, as thenatural guardian, has the preferential right to the custody of nchild born of the marriage. Madulawathie v. Wilpus (10).
In the present application, the marriage of the petitioner andthe 1st respondent has not been dissolved so that the 1st respon-dent as the father has the preferential right to the custody of thechild. The question now is w'hether the rights of the 1st respon-dent should be displaced by consideiations relating to the welfareof the child.
The law presumes that where the legal custody is, no restrain!exists, and that where it is shown to be to the contrary, a counter-presumption exists. Since legal custody is in the 1st respondentthe presumption is in his favour. The petitioner who seeks todeprive him, as the father, of his right to the custody of the childmust therefore prove that the interests of the child require it.Unless she discharges that burden the 1st respondent is entitledto custody/, Madulawathie v. Wilpus (10). See also Weragoda r.Weragoda (5) and Rajaluxmi v. Sivananda Iyer (11).
No allegation has been made by the petitioner that the 1strespondent is not a fit and proper person to have the custody ofthe child. The 1st respondent is a postal peon attached to theKotlegoda Post Office and draws a salary of Rs. 400 per month.He comes home daily' at ten in the morning and again at two inthe afternoon after his duties are over for the day. He has ample-time to spend with his child at home. His mother and eldersister also live with him, and they could bestow a mother’s careand affection on the child. It is true the mother is about 75 yearsold ana herself needs to be looked after by her daughter. Butthat does not prevent her daughter from looking after andattending to the needs of the child also. Besides, the child is r tv,attending a Nursery School and is not wholly dependent or,mother’s care and attention.
In Fernando v. Fernando (9), Wesramantrv, J. posed the aues-tion whether the father’s right to the custody of the child shouldyield to the circumstance that children of such tender years as
Karunawafhie v. Wijesuriya (De Alw's, J.)
three or four, are ordinarily entitled to a mother’s comfort andcare. He answered it in the affirmative citing Hahlo, South AfricanLaw of Husband and Wife—2nd Edn. 446—for the rule that thecustody of very young children ought ordinarily to be given tothe mother. Deheragoda, J. also refers to this rule in Rafaluxmiv. Sivananda Iyer (11). But Hahlo there is dealing with therights of parents to the custody of children after the dissolutionof the marriage. At that stage the preferential right that thefather has to the custody of the child before the dissolution ofthe marriage is not taken into account. Here the marriage hasnot been dissolved so that the father’s fundamental right to cus-tody continues. The Magistrate however has deprived the 1strespondent of his right to custody and granted the custody ofthe child to the mother, solely on the basis that the child is oftender years and needs the care and affection of its mother.
In Calitz v. Calitz (7) the trial Court had dismissed the wife’saction for judicial separation against her husband, but gave herthe custody of the female child 2J years on the sole groundsthat the interests of the child would best be served by such anorder as to custody. It was held in appeal that the Court has nojurisdiction, where no divorce or separation authorising the sepa-rate home has been granted, to deprive the father of his custody,except under the Court’s power as upper guardian of all minorsto interfere with the father’s custody on special grounds, such,for example as danger to the child’s life, health or morals. Therewas no finding that the father was not a fit and proper person tohave such custody and the fact that the child was of tender yearsand would be better looked after by the mother did not, underthe circumstances jutsify the order made- It will be observed thatthe child in that case was a girl aged only 2£ years.
The learned Magistrate who enquired into this petition hasfailed to consider the interests of the child in relation to thefather’s fundamental right to its custody during the subsistenceof the marriage. In any event the petitioner has not made out aprima facie case for this Court to interfere with the right of the1st respondent to custody cn the grounds that it is in the bestinterests of the child.
The petitioner’s application is refused. She is however entitledto reasonable access to the child and the Magistrate will makean appropriate order in regard to it after hearing both parties.
RATWATTE, J.—I agree.