106-NLR-NLR-V-74-M.-FRUGTNIET-Petitioner-and-H.-EDWIN-FERNANDO-and-2-others-Respondents.pdf
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SAMERAWICKR AME, J.—Frugtnicl v. Fernanda
.1969Present : Samerawickrame, J.
M.FRUGTNIET, Petitioner, and H. EDWIN FERNANDOand 2 others, Respondents
S.G. 449/66.—Application for a Writ of Habeas Corpus to producethe body of Angeline Fruglniel of 156/2 Deans Food, hiaradana
•Habeas corpus—Application made by mother in respect of her child while father isstill alive—Considerations applicable—Importance of child's welfare.
Under the Roman-Dutch law tho father and the mother oro entitled to thocustody of tho children of their marriage, and the father has a preferent right.But if tho father fails or neglects to concern himself with the care of his children,tho mother is entitled, by reason of her natural guardianship, to apply for awrit of habeas corpus in respect of a child who is in thecustody of u third partv.In such a ease, however, if the child had been handed over to tho third partyby tho mother herself on the understanding that it would not l>e claimed back,
■ the welfare and happiness of the corpxis is the paramount consideration and thomother’s natural right is not sufficient per se to eutitlo her to claim back thochild.
■Application for a writ of habeas corpus.S. Kanagaralnam, for the petitioner.
11. Rodrigo, for tho respondents.
Cur. adv. vult.
August 2, 19G9. Samerawickrame, J.—
The petitioner has made this application for a writ of habeas corpusseeking to have the custody of her daughter Angeline Frugtnict restoredto her. The corpus Angeline had been handed over to the first andsecond respondents in May 19G5, by one Gibbs with whom the petitionerwas living, with the consent of the petitioner. The learned Magistrateto whom this petition was referred and who has heard evidence, in hisreport to this Court, states “ There is no doubt- that when the corpus wasgiven over to the respondents on 15.5.1965 it was on the understandingthat she would not be claimed back at any time. ”
SAMER AWTCKR AME, J~.—Frugtniet V. Fernando
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The petitioner married one Anselm Joseph Frugtniet and there were7 children of the marriage. About 3 or 4 months after the corpus.Angcline was born, Frugtniet had deserted the petitioner. The petitionerherself had been in destitute circumstances and had sought employmentas a domestic in various houses. Her husband appears to have handedover the children, including Angeline, to various persons for purposes of'domestic service. In the year 1963, the petitioner had met Gibbs whowas himself a divorcee and had commenced to lire with him in Badulla.In 1965, Gibbs was unemployed. He and the petitioner were unable to-provide for the corpus Angcline and they had accordingly handed overAngcline to the 1st and 2nd respondents. Gibbs had obtained employ-ment at Kadawata shortly before this application was made and hadcome with the petitioner to live in a house on t he land of which he was incharge. Thereafter the petitioner appears to have got back her elderdaughters Millie and Yvonne and thereafter sought to get back Angeline.One son Anselm has been handed over to police inspector Samath. Thatboy has been well looked after by Samath and remains with him.Another son Carlo had been handed over to Venerable McdagamuwaGnanalankara Thcro and has been ordained a Bhikku and given the namoSumangnla Thero. During the course of the proceedings in the Courtbelow, as a result of persons interested in this case visiting him andmaking representations to him, this son had given up Jus robes and left-the temple.
The 1st and 2nd respondents wjio had taken over the corpus Angeline-with the intention of bringing Jier up as t-heir own child had apparentlygrown quite fond of her and refused to liand over Angeline to tho-petitioner and the petitioner has accordingly made this application.
The person who is entitled to the legal custody of Angcline is herfather Anselm Joseph Frugtniet. He is apparently unconcerned abouttlie welfare of his children. According to the petitioner he had placed anumber of children in unsuitable homes where the children were treatedbadly.
Under the Roman Dutch Law both the father and the mother areentitled to the custody of the children of the marriage and though the-father has a preferent rigjit, in a case like this, where the father fails orneglects to concern himself with the care of his cluldren there is no reasonwhy the petitioner should not be entitled to obtain custody by reason ofher natural guardianship, if she can make out a case for such custody.
The petitioner stated that Gibbs was a superintendent on an estatngetting a salary of Rs. 300. The estate was a fairly large one and ahouse had been put up on it and they live in it. From the evidence ofGibb3 it transpires that ho is in charge of 7-8 acres of high land and
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S AME R A WICICR A M E, J.—Frugtniet v. Fernando
10-12 acres of paddy land and that he is Jiving in a temporary shedmade of zinc sheets put up on that land. The Venerable Mcdagamuwa•Gnanalankara Thero who had occasion to visit Gibbs and the petitionerstated that they were Jiving in circumstances of extreme poverty. Therenre living with them, in addition to petitioner’s two elder daughters, herthree children by Gibbs.
It transpired in evidence tJiat Angeline had never been sent to scJiool ;that she had not been vaccinated and that slie was weak and anaemicand suffering from asthma at the time she was handed over to the•respondents. It would appear that tlie father had taken the child overwhen sire was quite young and handed her to one Mr. Abeynaike who inturn had handed her over to another person. The petitioner had■obtained Tier custody from that person through the services of a ProbationOfficer. Even after the petitioner had received back Angeline, sire doesnot appear to have been given any schooling.
The learned Magistrate in his report states “It is perfectly clear thatthe two respondents are very fond of the child and the child is equallyfond of her foster-parents.” Again, in his report, he states “ From theevidence of the corpus it is very clear that she is Jiappy and contented tobe with her foster-parents, and is being looked after by them with great■affection.” The 2nd respondent stated in evidence that they treatedAngeline as their ora child and provided her with all the necessarycomforts. As there was no birth certificate of Angeline which wasavailable to them it was not possible to admit her to a school but she wasgiven private tuition.
The petitioner’s marriage to Frugtneit still subsists and she is livingwith Gibbs as his mistress. As learned Counsel for the respondentspointed out, she has no legal claim to be supported by Gibbs and in theevent of his falling out with her, she would be left without any means.Her position is therefore, precarious. I am not satisfied that Gibbshimself is in receipt of an income of Rs. 300 per mensem as stated by thopetitioner. Gibbs and the petitioner seem to be somewhat better offafter Gibbs was placed in charge of a land of about 20 acres than theywere before but they are still in very poor circumstances. The petitionerherself has been described by the learned Magistrate as a foolish, illiterateand garrulous woman and she appears to be absent minded. It is clearthat apart from any support that she has from Gibbs, she is unable tosupport her children.
The two respondents appear to be very fond of the corpus Angelinaand appear to have looked after her as the}' would a child of their own.'They have no children of their own and it is clear that they cannot hope
S A ME R A WICK J{AME, J.—Frvgtniel v. Fernando
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to have any children now as the 2nd respondent is now 52 years old.They are in a position to give Angeline the necessary comforts and lookafter her future prospects in life.
It is very regrettable that questions were put to the petitioner in cross-examination which implied imputations against her and her elder daughterMillie. The petitioner, quite rightly, felt resentment and antagonismand refused a suggestion that she consent to the adoption of the corpusby the first and second respondents. While the petitioner’s resentmentis understandable, it is equally clear that her refusal stems from herfeelings of pique and is not made in the interests of the welfare of thecorpus.
In a case like this, the welfare and happiness of the corpus is theparamount consideration and to this consideration all others yield—videMe Kee v. Me Kee A There is also a finding of fact by the learnedMagistrate that when Angeline was handed over to the respondents itwas on the understanding that she would not be claimed back. In thecase of Satnarasinghe v. Simon 2, it was held that where a parent surren-dered the custody of a child to another, the mere assertion of his naturalright is not sufficient to entitle him to claim back the child and that theCourt will not disturb the status quo unless there is good ground fordoing so.
In his report, the learned Magistrate states that it would be in theinterests of Angeline that she should have the companionship of hermother and her sisters and build up ties with members of her ownfamily. While that is no doubt a consideration, I am satisfied, upon areview' of all the facts of the case that it is in the interests of the corpusAngeline that she should remain with the first and second respondents.
I do not think that it is in the interests of Angeline that she should benow handed back to her mother who is living not with her father butwith a paramour and whose prospects arc dependent upon the support ofher paramour. It appears to me that her welfare and happiness wouldbe best served by permitting her to remain with the respondents who aretreating her as a child of their own and giving her the necessary comforts.The petitioner’s application is therefore refused.
The petitioner as the mother of the corpus is entitled to reasonableaccess to the corpus. If the parties cannot agree upon access, theMagistrate is authorized to make such order as may be necessary inregard to it subject to review or other order that may be made by thisCourt.
Application refused.
(1951) A. C. 352.
* (1941) 43 N. L. R. 129.