108-NLR-NLR-V-70-PRECIA-W.-FERNANDO-nee-Perera-Petitioner-and-DUDLEY-W.-FERNANDO-and-2-others.pdf
534
WEER AMANTRY, J.—Fernando v. Fernando
Present:Weeramantry, J.PRECIA W. FERNANDO (nee Perera), Petitioner, a)idDUDLEY W. FERNANDO and 2 others, Respondents
S.C. 118 of 1968—Habeas Corpus Application
Habeas corpus—Custody of children—Rival claims of father and mother—Considerationsapplicable—Putativemarriage—Children born of such
marriage—Interim custody of them pending action for annulment of marriage—-Which spouse is entitled to such custody ?
In all questions of custody of children the interests of the children standparamount. Questions of matrimonial guilt or innocence of a parent wouldnot therefore be the sole determining factors in questions of custody, thoughthey are not factors which will be ignored. The interests of the childrenbeing paramount, the rule that the custody of very young children oughtordinarily to be given to their mother ought not to be lightly departed from.
A marriage is null and void ab initio if it was contracted in consequence of afraudulent misrepresentation by the wife that she was unmarried, when infact she was already married. Assuming, however, that the husband is entitledto the custody of children bom of the putative marriage, the Supreme Courtwill not necessarily grant him the custody in habeas corpus proceedings duringthe pendency of an action instituted by him in the District Court for theannulment of the marriage. In such a case, if the children are of tender years(e.g. 3 or 4 years old), their mother will be entitled to interim custody so longas she is shown to be fit to care for them. If she happens to be employed inEngland, an undertaking given by her that she will not leave Ceylon or removethe children pending the matrimonial action is sufficient.
.Application f°r a writ of habeas corpus.
K. Shinya, with Nimal Senanayake, for the petitioner.Eardley Perera, for the 1st respondent.
Shiva Pasupati, Crown Counsel, as amicus curiae.
Cur. adv. vult.
March 29, 1968. Weeramantry, J.—
Th£ petitioner in this case asks for the custody of^ter two iflinorchildren, the 2nd and 3rd respondents. The 1st respondent is the husbandof the petitioner and the father of the two children. The marriage
WEERAMA2STTRY, J.—Fernando v. Fernando
535
between the petitioner and the 1st respondent took place in Londonon 13th June 1964 but the parties had been living together in Londonfrom early 1962.
The elder child was born on 4th November 1963, that is prior to themarriage, and the second child was born on 5th February 1965. Thereis no dispute as to paternity.
The 1st respondent on 14th February 1968 without notice to the •'petitioner left London by air for Ceylon with the 2nd and 3rd respondents, 'and the petitioner followed, as soon as she could make the necessaryarrangements, on 2nd March 1968. The 1st respondent has thereafterfiled proceedings in the District Court of Panadura for a decree of nullitybased on an earlier marriage of the petitioner to one Navaratne, or inthe alternative for a decree of divorce on the ground of constructivemalicious desertion, and these proceedings are now pending.
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The petitioner comes into this court on the basis that the removalof the children from the matrimonial home was without notice to herand that despite daily attempts by her on reaching Ceylon to obtainaccess to the children, the doors of the 1st respondent’s house are closedon her, that a threatening attitude is adopted towards her by personsin this house on her visits there, that the 1st respondent goes into hidingat the approach of the petitioner and that she is not allowed to speakto or fondle the children although she sees them in the house.
It is the position of the 1st respondent that the petitioner prior to /her piirported marriage to him had been married to one Navaratne on21st May 1949 and that she had had eight children by this marriage.The 1st respondent’s position is that the fact of this marriage to Navaratneas well as the fact that there wrere eight children of that marriage hadbeen concealed from him and that but for this suppression of fact by thepetitioner he would not have married her.
In support of the contention that the petitioner has been guilty offraud in suppressing the fact of her earlier marriage, the 1st respondenthas produced, marked R2, the certificate of marriage relating to hermarriage to Navaratne, and also R3, the certificate of her subsequentmarriage to the 1st respondent. In R3 the petitioner has described herselffalsely as a spinster and has given her name as Winifreda Perera, thussuppressing completely, at any rate as far as the registrar wTas concerned,the fact of her marriage to Navaratne.
If this be the correct factual position, the marriage between thepetitioner ai*! the 1st respondent would be a ntillity, the ordinaryconsequence of which would be to render the children illegitimate, andto deprive the father of the right to custody.
536
WEER AMA NTFfy, J.—Fernando v. Fernando
Mr. Eardley Perera for the 1st respondent points out, however, thatthe rule that a marriage which is null and void ab initio has none of theconsequences of a valid marriage is subject to exceptions in the caseof a [putative marriage,' that is a marriage which is null and void butsolemnised with the prescribed formalities and contracted by both orone of the spouses in good faith. Thus if it be correct that the firstrespondent was unaware that the petitioner had been married earlier,and entered into his marriage with the petitioner in good faith, such amarriage would be a putative marriage as the 1st respondent wouldhave been ignorant of the impediment to his marriage.1 It would appearthat both according to the old Roman-Dutch authorities and accordingto the modern law the children of a putative marriage are consideredlegitimate 2, and further that the innocent spouse is entitled to apply toCourt to have the children declared legitimate. The legal position ofsuch a child vis a vis the innocent parent is thus not different fromthat of any other legitimate child.3 Mr. Perera submits on this basisthat although the marriage between the parties was a nullity his clientwas entitled to all the rights over the 2nd and 3rd respondents whichhe would have had in case the children had been legitimate.
The deception alleged is however denied by the petitioner who statesthat the marriage to Navaratne and the fact that children were bornof that marriage were circumstances well known to the first respondentat the time of the marriage. The petitioner states further that the truthof this statement is borne out by the circumstance that although theelder child’s birth was registered with the father’s name as Navaratne,the registration was subsequently altered by substituting the name ofthe 1st respondent as the father. She states that this was done uponthe basis of affidavits filed by both the petitioner and the 1st respondentand that therefore the 1st respondent at any rate at the time of theaffidavit knew of such marriage and nevertheless continued to five withher on the same basis as before. She submits that the second childwas born in these circumstances. However no evidence has been placedbefore me in regard to the date of that affidavit and I am therefore unableto arrive at a definite conclusion in regard to the question of the 1strespondent’s knowledge of the earlier marriage. We are left then withan allegation by the 1st respondent of deception, which allegation iscontradicted by the petitioner. I will for the purpose of this ordernevertheless assume, without in any way deciding upon the matter,that the 1st respondent was the innocent party and that the law inregard to putative marriages therefore entitled the first respondent tothe right to custody which he would have had in the case of legitimacy.
However, even if this be assumed, the further question must beconsidered whether this right is to yield in the present case to the
• • •
xHdhlo. South African La c, Husband <Sc Wife, 2nd ed., p. 479. *
* HcMo, ibid p. 480.
3 Hahlo, ibid p. 481.
WEERAMANTRY, J.—Fernando v. Fernando
537
circumstance that the children are of the ages of three and four, and thatchildren of such tender years are ordinarily entitled to a mother’scomfort and care.
It has been urged against the mother that she is guilty of a seriousand fraudulent suppression of fact, a contention which will no doubt beexamined in detail in the District Court proceedings. For the purposeof a free investigation of this matter in the District Court unfetteredby any views which this court may express, I have not acceded to asuggestion by the 1st respondent’s counsel that there should be anexamination and cross-examination of parties so that this court couldarrive at its conclusions on this matter. The learned District Judge willtherefore be free to adjudicate upon those questions of guilt andinnocence which will to some extent weigh with him when he brings hismind to bear upon the question of permanent custody. I shall limitthe scope of this inquiry to the ascertainment of the most suitableinterim order which the interests of the children demand during theperiod between this order and the eventual adjudication upon custodyby the District Court.*
Apart from the circumstance of this alleged deception it has not beenurged against the petitioner that she is now living in immorality orotherwise so conducting herself as to make her an unsuitable person tobe entrusted with the custody of the two children. It is true the eightchildren by the marriage to Navaratne are alleged to be living in Ceylonand so is this Navaratne, but it is not contended that the petitioner isliving with Navaratne or with these children. It must further be observedthat the youngest of these eight children is now ten years of age and Ido not think that the presence of those children in Ceylon is likely totake away from the care and affection a mother would ordinarily showto children so tender in years as the second and third respondents.
In this state of the facts what legal principles are applicable indetermining the right to interim custody ?
There can be no doubt that in all questions of custody the interestsof the child stand paramount, a principle on which the English and themodern Roman-Dutch law are agreed. As Lord Simonds observed inMcKee v. McKee,1 it is the law of England (and, as he observed, of Canada,Scotland and most if not all of the States of the United States) that thewelfare and happiness of the infant is the paramount consideration inquestions of custody, and to this paramount consideration all othersyield. The modem Roman-Dutch law likewise stresses this considera-tion in questions of custody and has “ grown away from rules directedtowards penalising the guilty spouse and towards a recognition ofpredominance of the interest of the child 2 This emphasis on thechild’s interests as being paramount no doubt obtains in our law 3 and
1 (1951) 1 All E.R. 942 at 948.
* per Schreiner J.A. in Fletcher v. Fletcher 1948 (1) S-A. 130 Jki.D.) at 144.
8 Karunawathfk v. De Silva (1961) 64 N. L. R. 252 at 257 ; Weragoda v. Weragoda(1961) 66 N. L. R. 83 at 86.
538
WEERAMANTRY, J.—Fernando v. Fernando
questions of guilt and innocence would not therefore be the sole deter-mining factors in questions of custody, though of course they are not afactor which will be ignored.1 This principle leaves me free to decideon interim custody without being obliged to investigate questions ofmatrimonial guilt or innocence as a preliminary to such order.
The interests of the children being then the paramount factor, thereis a rule commended alike by law and ordinary human experience, whichto a large extent will determine the matter before me. This is the rulethat the custody of very young children ought ordinarily to be given tothe mother, a rule which ought not to be lightly departed from. 1 2 Itis no answer to this rule that the law ordinarily gives the father a superiorright to custody 3 and it is too late in the day to urge that the father’s rightto custody is absolute and not to be interfered with.4 As was observedin Fernando v. Fernando 5, “So long as the mother is shown to be fit tocare for the child it is a natural right of the child that she should enjoyher mother’s care and not be deprived of that right capriciously. ” Aswas also pointed out in the last case referred to, “ the very fact of the^forced separation and the knowledge that the mother with whom thechild had lived for a fairly long period can have no part to play in thechild’s future is at least likely to affect the mental health of the child ”.
Overriding considerations taking their force from the mother’s pastcharacter or conduct or from her inability to give the children a suitablehome may no doubt in individual cases prevail over this principle,, butno such circumstances have been alleged in this case.
While it is true that any order I may make is of a purely interimnature pending the order of the District Court, there is every possibilitythat the District Court trial may not proceed to a final determinationfor a considerable period and every possibility also of any order madein that trial being subject to appeal and its attendant delays. Thepresent order may therefore well be operative for a considerable periodwhich may extend over several months and possibly well beyond a yearor two ; and in the lives of children of this tender age so long a separationfrom their mother ought not to be decided upon except for compellingreasons.
There is moreover a further feature in tliis case which simplifies adecision on the question of interim custody. This circumstance is theremoval by the first respondent of the children from the common matri-monial home on February 14th 1968 without reference to the petitioner.The first respondent states that he did so upon his discovering that hehad been deceived in regard to his marriage. Whatever may be his
1Hahlo, South African Law of Husband & Wife, 2nd ed., p. 445.
2Hahlo, South African Laic of Husband <Sc Wife, 2nd ed., 440.
Karunawathie v. Me Silva, supra ; Weragoda v. Weragoda, supra.
See fcarunawathie v. De Silva, supra.*
(1956) 58 N. L. R. 262 at 263-4.
WEE RAM AN TRY, J.—Fernando v. Fernando
539
reasons for resorting to this unusual piece of conduct and whatever hisjustification for his himself deciding to leave, he certainly had no rightby such an act to deprive the mother of her two children without notice.I do not think that a parent should be permitted by a unilateral act ofthis nature, performed behind the back of the other parent, to gain anyposition of de facto advantage over the children which he wouldnot have enjoyed but for such conduct. To do so would be to lend theencouragement of the courts to those who decide to take the law intotheir own hands.
There is before me the averment of the petitioner that on 15th February1968, the day after the removal of the children, she took all possible stepsthrough her solicitors in London to trace the first respondent and toprevent him from leaving the country with the 2nd and 3rd respondents,and that to this end she informed the Home Office and the police and hadthe children made wards of the High Court of England. This latteraverment has been substantiated by the document P7 showing thatthese children became wards of court on 16th February 1968.
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The petitioner further avers that as soon as she learnt that the firstrespondent had left London by air with the two children she madenecessary arrangements to obtain leave of absence from her employer inLondon and arrived in Ceylon by air on 2nd March 1968. We have thusthe uncontroverted fact that the children were on 14th February broughtto this country suddenly by the father without notice to the mother andthat she has apparently been so agitated by this removal that she haspromptly taken every step within her power to recover the children.
This is a most important circumstance which to my mind has an almostdecisive effect on the question whether the parent who has so brought thechildren away from the mother is entitled to retain them pending finaladjudication.
Considerable fears were expressed by learned Counsel appearing forthe respondent in regard to the possibility of the children being surrep-titiously taken away to England by the petitioner in the event of thiscourt awarding interim custody to the petitioner. It was submittedthat while the 1st respondent has no intention of returning to the UnitedKingdom, there was no guarantee that the petitioner would remain inthis country whatever be her assurances in this regard. It was furthersubmitted that there was no means available to this court of compellingobedience to any order this court may make restraining the petitionerfrom taking the children out of this jurisdiction, for* it was her avowedintention at the commencement of this inquiry to revert to her employ-ment under the London Transport Board in three weeks’ time. It istrue that in the course of these proceedings she stated quite categoricallythat if she were granted the custody of the children she would give anundertaking*that she would not leave the country or remove the children.
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WEERAMANTRY, J.—Fernando v. Fernando
Such a removal of the children, it was argued, could occur in breach of anyundertaking given to this court, and would render nugatory all subsequentcontrol by this court over the custody of the children. It was furthersubmitted that it was not within the competence of this court to issuedirections to the authorities responsible for the issue of passports andsupervising departure from the country, and that even should suchinstructions be issued there was every possibility of their being lost sightof or suppressed.
This aspect of the matter caused me considerable anxiety for bothparties hold Ceylon passports, the children are now resident in thiscountry and there is a matrimonial suit now pending in the Ceylon courts.Further, the Ceylon courts are apparently the courts of the matrimonialdomicile, considering that the husband has disavowed any intentionof returning to the United Kingdom. It is therefore of the utmostimportance that pending the divorce pooceedings the children shouldnot be taken out of this jurisdiction and that any orders whether of thiscourt or of the District Court should not in view of such a possibility standin danger of being flouted. In view of the importance of these con-siderations I requested the assistance of Crown Counsel as amicus curiaeon the resumed date of inquiry, and in response to this request Mr. ShivaPasupathy, Crown Counsel, appeared at the inquiry. I appreciate verymuch the considerable assistance he has rendered to this court on thelegal questions involved in any attempt at removal of the children.
On the resumed date of inquiry the petitioner produced an informativedocument, P4, in regard to Immigration and Emigration procedure inso far as concerns the entry of children to the United Kingdom. Thisdocument, issued by the British High Commission on 22nd March, indi-cates that under section 2 of the Commonwealth Immigrants Act, 1968,children under the age of sixteen now have the right of admission to theUnited Kingdom only if both parents are resident there or both parentsare accompanying the children or one parent is accompanying the childrenand the other is already resident in the United Kingdom. A child mayalso be admitted to join one parent although the other is resident outsidethe United Kingdom if the parents’ marriage has been dissolved and theparent in the United Kingdom has legal custody. Admission accompany-ing or to join only one parent in other circumstances is authorised onlyif family or other special considerations make exclusion undesirable.
The British High Commission states further that any application fora child to accompany or join one parent where the parents are divorcedor have been granted a legal separation will be considered only whenthe parent making the application has satisfied the High Commissionthat the divorce decree or separation document as the case may becontains no stipulation that the child remains in Ceylon and further thatproof has been shown that there is no overriding Ceylon law^which mij;htmake tlfe removal of a child in such circumstances subject to express
WEE RAMAN TRY, J.—Fernando v. Fernando
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permission having been granted by a court of law. It is further statedthat the onus is on the parent making the application for an entrycertificate for the child to satisfy these requirements and that all suchapplications have to be referred to the Home Office in London for decision.
A document P5, from the Controller of Immigration and Emigration,was also produced by the petitioner to the effect that action is beingtaken to see that the two children do not leave Ceylon until the habeascorpus action is finally disposed of by the Supreme Court.
It would appear from this material that the removal of the childrenfrom the country and their admission to the United Kingdom wouldpresent insurmountable difficulties to the petitioner and that in anyevent the Department of Immigration and Emigration will await theorders of this court before it feels free to issue the necessary traveldocuments in respect of the two children.
Learned Crown Counsel has referred me to section 36 (1) (e) of theImmigration and Emigration Act (Chapter 351) which provides that,regulations may be made in respect of the terms and conditions thatmay be attached to passports. In terms of this provision regulationshave been made making it a condition of every passport, emergencycertificate or identity certificate that the competent authority or theappropriate officer, as the case may be, may in his absolute discretioncancel or suspend a passport or emergency certificate or identity certifi-cate or restrict its period of validity upon service of a notice that suchaction has been taken and the holder of such document is required tosurrender it.
This is not of course a discretion which will be arbitrarily exercised,but one principle governing the grant of passports is that, broadlyspeaking, passports will not be granted if there is reason to believe thatminor children are being taken out of the father’s custody and without hisconsent.1 Furthermore the passports of the two children are containedin the passport of the respondent. Any attempt on the part of thepetitioner, therefore, to have the two children’s names included in herpassport or to obtain independent passports for the two children wouldhave to surmount this additional difficulty.
Having regard to all these considerations I have little doubt thatwhether or not this court has power to issue directions to the Departmentof Immigration and Emigration in regard to the refusal of a passport,the Department will not issue such a passport having regard to thecircumstances in which the parties are placed and having regard alsoto the fact that proceedings for the determination of the custody of thechildren are in progress. Should the Department by some oversight orsome deception practised upon it so far depart from the terms of itsletter P5 as Jto issue a passport to the children, it. is clear that these
•1 Mervyn Jones, British Nationality Law and Practice, p. 290.
642
WEERAMANTRY, J.—Fernando v. Fernando
children will not in any event be allowed entry into the UnitedKingdom. It seems quite reasonable therefore to exclude the possibilitythat the children may be taken away from Ceylon without notice to the1st respondent or in breach of any undertaking given to this court.
It was then contended on behalf of the first respondent that whatevermay be the position in regard to the removal of the children there isevery possibility that the petitioner may implement her earlier decisionto return to London in three weeks’ time and thereby leave the childrenstranded in this country. The simple answer to this contention is thatshould the petitioner choose to act so irresponsibly, she will forfeit allclaims to the custody of the children, and her rights in this respect wouldprobably be lost to her for all time. There will further be an automaticreversion of the children to the custody of their father. I do not thinkit conceivable that the children will be abandoned by their mother insuch circumstances as to leave them destitute and without an}7 attentionwhatsoever, having regard to the anxiety she has so far shown to regaintheir custody. There is moreover the fact that the divorce action inwhich the matrimonial rights of the parties will be finally adjudicatedupon is pending, and the prejudice that will be caused to her by her soleaving and abandoning the children would be such that, apart fromconsiderations of the welfare of the children, considerations of self-interestby themselves would render such a course on her part unlikely.
I have questioned learned counsel for the first respondent in regardto the facilities available to the 1st respondent for looking after thesechildren, where the 1st respondent now resides. I am told that the1st respondent lives with his mother and that she is at present lookingafter the children. It is said on behalf of the petitioner that this ladyis elderly and not in the best of health. Apart from the 1st respondent’smother there would appear to be no female relatives residing with the1st respondent who would be able to give to these children anything likea substitute for a mother’s care and affection.
Having regard to all the foregoing circumstances I make order thatthe 1st respondent hand over the 2nd and 3rd respondents to the petitioner.
The petitioner through her Counsel has stated that she will continueto reside in Ceylon and I think that it would be appropriate also to inserta condition that the custody of the children will automatically revertto the father in the event of the mother leaving this country. She mustalso enter into a bond in a sum of Rs. 5,000 with one or twosureties that she will not remove the children from this country pendingthe determination of the divorce proceedings. This order must also becommunicated to the Controller of Immigration and Immigration drawinghis attention to the undertaking by the petitioner and requiring himto desist from issifing any passport to the two children jls long af^ thedivorce proceedings in case No. 11080 D.C. Panadura are pending.
The Queen v. Adambawa
543
There is the further question of access to the minors by the firstrespondent pending the final settlement of custody by the District Court.Feelings between the parties seem to be so strained that it is mostundesirable that the father’s right of access should be exercised in the housewhere the mother resides. I have therefore made inquiries from partieswith a view to ascertaining whether there is a neutral place to whichthe children can be brought for the purpose of being met by the otherparent and parties are agreed that the premises of the Dehiwela CatholicChurch will be mutually acceptable for this purpose. I therefore makeorder that, pending the determination by the District Court of Panaduraof the question of custody, the 1st respondent should have access tothe children at the premises of the Dehiwela Catholic Church on any twodays of the week to be notified by him to the petitioner two days inadvance. It will be the duty of the petitioner to make the childrenavailable to the 1st respondent at the premises on these days at allreasonable hours.
Application allowed.