Muthiah Jeyarajan v. Thushiyanthi Jeyarajan and Others
v.THUSHIYANTHI JEYARAJAN AND OTHERS
COURT OF APPEAL
ISMAIL, J. (P/CA),
A. NO. 698/98 (REV)
C. COLOMBO NO. 108/HCA
SEPTEMBER 17, 1998.
Custody of a minor child – Applicability of Roman Dutch Law – English Law –
Preferential right of the father – Traditional approach – Modern approach –
Predominant interest of the child.
The modem Roman Dutch Law and English Law were agreed on theprinciple that the interests of the child were paramount. The modernRoman Dutch Law had moved away from rules directed at penalising theguilty spouse, towards the recognition of the predominant interest of thechild.
The ultimate criterion to be considered as having importance is theconsideration which require that the child's sense of security should beensured.
Per Tilakawardane J.
"Courts should look for cogent and substantial evidence to effect achange in the life of the child, especially in the light that she had for morethan two years not even seen the petitioner-petitioner. The person whohave acted as "Parents" where she is concerned have been her maternalgrand mother and her mother – it is in this home that the child's senseof security has been built upon."
APPLICATION in Revision from the judgment of the District Court of Colombo.
Sri Lanka Law Reports
(19991 1 Sri LR.
Cases referred to:
Calitz v. Calitz – 1939 AD 63.
Ivaldy v. Ivaldy – (1956) 57 NLR 568.
September v. Karriem – 1959 3 SA 687.
Weragoda v. Weragoda – (1961) 59 CLW 59.
Fernando v. Fernando – (1968) 70 NLR 534.
In Re Dunsterville – 1946 NPD 594.
In Re Green 1948 SA 1054.
In Re Gordon 1953 – 2 SA 41.
In Re French 1971 4 SA 298.
M. K. Jayakrishnam with Ms. C. J. Jeyakrishnan for the petitioner.
Cur. adv. vult.
October 08, 1998.
SHIRANEE TILAKAWARDANE, J.
The petitioner-petitioner instituted an action in the District Court ofColombo seeking custody of the 1st respondent-respondent, who ishis daughter by the 2nd respondent-respondent.
In his application he has stated that he left for Canada inSeptember, 1995, leaving his family behind. He avers that whilst hewas in Canada he had been informed that his wife had attemptedto abort his 2nd child and that she was having a relationship withanother man.
By order delivered on 15.7.98 the trial judge has made orderrefusing the application made by the petitioner-petitioner for custody.
The petitioner has made application to this court to have the saidorder reversed. The counsel for the petitioner-petitioner contended thatthe 1st respondent-respondent is not a suitable person to be themother of the child concerned as she had "murdered" her 2nd child,
CAMuthiah Jeyarajan v. Thushiyanthi Jeyarajan and Others
(Shiranee Tilakawardane, J.)115
and as she has had an illicit relationship with another man. It wasalso stated that she is presently in remand custody in the Welikadaprison. In these circumstances, it was argued that the petitioner-petitioner is entitled to claim the custody of the child under thepreferential right that the father has for custody.of his child.The child is said to be with the grandmother.
The allegations made against the 1st respondent-respondentis not supported by documentation especially as most of the matterscontended does not have the validity of its authenticity by referenceto documents that are required to be maintained in the ordinarycourse of events. The petitioner-petitioner has averred that he wasinformed "of these facts whilst he was in Canada. . . but doesnot disclose either the name of the person/s who made the disclosuresto him, nor has any corroborative material or any evidence, director otherwise been adduced which would have substantiated theseallegations.
It appears from his petition that after he had left for Canada the1st respondent-respondent had attempted at aborting the 2nd childthat she was carrying. It is not clear from the pleadings whether theallegations of "murder" relate to the said abortion alleged.
In considering the custody of the child the counsel for thepetitioner-petitioner has referred this court to the principles of theRoman Dutch law in an attempt at supporting his contention that thefather "has preferential right". He has submitted that as the RomanDutch law is the operative law should set aside the order refusingthe custody to the petitioner-petitioner.
The traditional Roman Dutch viewpoint that the father has apreferential right to the custody of his minor child during the subsist-ence of a marriage is reflected in Calitz v. Calitz*'1 in South Africaand Ivaldy v. Ivaldy(2) in Sri Lanka. Even then, the courts have clearlyheld that the father's "power" over the child, was neither absolute norbeyond the control of the law and could only be interfered within
Sri Lanka Law Reports
 1 Sri LR.
exceptional circumstances, such as the danger to life, health andmorals of the child.
However, this line of authority in South African law was changedin 1947, when the Appellate division declared that danger to life, healthand morals were only examples of instances in which the courts couldinterfere with the father’s prima facie right to the custody of his child,and that Calitz did not warrant so restrictive an interpretation.
By 1959 a South African court had empahatically asserted in thecase of September v. KarrienrP1 that if the courts were of the opinionthat the interest of the child demanded interference in the rights ofthe parents, that it should be "at large” to act in a manner suitedto further the interests of the child. In Sri Lanka too in Weragoda'scasew it was held that the courts must decide on who should havecustody depending on all the factors affecting the case, thepresumptions and counter presumptions, but bearing in mind that theparamount consideration was the welfare of the child.
In 1968, in the decision of Femandd5' the Supreme Court heldthat both the modern Roman Dutch law and English law wereagreed on the principle that the interests of the child were paramount.The court declared that the modern Roman Dutch law had movedaway from rules directed at penalising the guilty spouse, towards therecognition of the predominant interest of the child.
Applying the principle that the interests of the child are paramountconsideration, the court ruled that the custody of very young childrenwould ordinarily be given to the mother.
This concept of the welfare of the child should be the paramountconsideration, was followed in several cases Dunstervilld6', Greed7',GordodB) and Frenchf9) and developed on the basis that the ultimatecriterion to be considered as having importance is the considerationwhich require that the child's sense of security should be ensured.
Muihiah Jeyarajan v. Thushiyanthi Jeyarajan and Others(Shiranee Tilakawardane, J.)
It is clear therefore that the courts should look for cogent andsubstantial evidence to effect a change in the life of the child, especiallyin the light that she had for more than two years not even seen thepetitioner-petitioner. The persons who have acted as "parents", whereshe is concerned have been her maternal grandmother and hermother.
It is in this home that the child's sense of security has been builtupon.
All allegations against her mother are not substantiated, and evenif charges have been made against her, she is considered as innocentunless and until she is proven guilty. When the child appearedin court, she seemed to display a close bond with her grandmother.There does not appear to be any need or reason to change the presentcircumstances she is placed in.
Accordingly, this court finds no reason to interfere with the Orderof the trial judge. Consequently, the application for revision isdismissed with costs.
ISMAIL, J. (P/CA) – I agree.
MUTHIAH JEYARAJAN v. THUSHIYANTHI JEYARAJAN AND OTHERS