B.M. KAMALAWATHIE, Petitioner, and N. G. DE SILVA and another, Respondents

046-NLR-NLR-V-64-B.M.-KAMALAWATHIE-Petitioner-and-N.-G.-DE-SILVA-and-another-Respondents.pdf


252
TAMBIAH, J.—Kamalawalhu v. dc Silva
Present : Tambiah, J.
M. ICAMALAWATHIE, Petitioner, and N. G. DE SILVA and another,
Respondents
S. C. 623 of1960—Habeas Corpus Petition
' Habeas Corpus—Custody of minor children—Jurisdiction of Supreme Court toentertain application—Rights of father and mother respectively to custody ofchild—Courts Ordinance {Cap. 6), s. 45.
The Supreme Court has jurisdiction to entertain an application for habeascorpus concerning the custody of minor children and is invested with tho powerto take away tho custody of a child from tho logal custody of the father and handtho same over to the mother if Bucb a course is necessary in tho best interests oftho child’s life, health or morals.
Application for a writ of habeas corpus filed by a mother claiming• the custody of her five year old child from her husband.
M. T. M. Sivardeen, for the petitioner.
B. Wikramanayake^ Q.C., with. Sir Ukwatte Jay asunder a, Q.C., and
U.A. S. • Per era, for the 1st respondent.
Cur. adv. vult.
July 7, 1961. Tambiah, J.—
This is an application for a writ of Habeas Corpus filed by the petitionerclaiming the custody of her child from her husband, the 1st respondent.The learned Magistrate, after a careful review of tho evidence, stated :“ Tho Petitioner appears to be a well-behaved ‘ young woman. The
TAMBIAH, J.—Kamalawathie v. de Silva
253
whole trouble between the Petitioner and the Respondent appearsto be financial. The Respondent does not give her money to run thehouse, so much so that when the Respondent finally left her the Petitionerhod to sell up the furniture in a house at Angoda and settle his debtsbefore finally coming back to her parents at Kandy. The child isJive years old and still needs the. care and attention of his mother. He hasalready been deprived of a normal home to grow up in. The Respondentis employed in Colombo and goes home onee in two weeks on a Saturdayafternoon to return on Sunday evening. The child has the company ofhis father only for about Ik days once in two weeks. This is most unsatis-factory ”. The petitioner had to go away from the house because therespondent developed the habit of coming home without his salary.During the period of about 2£ years after the birth of the child when thepetitioner was staying with her parents at Kandy, the respondent did notcome to see her and the child and did not even maintain them. Thechild is at present at Ahangama with the respondent’s mother.
This application, together with the Report of the Magistrate, came upbefore me and, after careful consideration, I made order that the custody-of the child be restored to his mother, the petitioner. Thereafter, boththe counsel for the petitioner and the counsel for the 1st respondent sawme in chambers and the counsel for the 1st respondent submittedthat I had acted without jurisdiction in this matter and consequentlymy order was made per incuriam. In order to enable the counsel tomake their submissions in full, I listed this petition for argument. Ihave had the benefit of the submissions of both counsel and, after a carefulreview of the authorities cited, I am of the view that my original ordershould stand.
Mr. Wikramanayake, who appeared for the 1st respondent, submittedthat in view of the provisions of Section 45 (a) and (6) of the Courts Ordi-nance (Cap. 6), this Court has no jurisdiction to take away the custodyof a child from his or her father on the ground that it will be dangerousto the child’s life, health or morals to remain in the custody of the father.Mr. Wikramanayake stated that although a long line of decisions haveestablished the principle that this Court could override the father’sauthority and hand over the custody of a minor child to the mother in theinterests of the child’s life, health or morals, nevertheless these caseswere all wrongly decided. He urged that in applications of this nature,under the Roman Dutch Law, the custody of the father was absoluteand could not be interfered with under any circumstances by the SupremeCourt. Mr. Wikramanayake also submitted that the only court whichcould deal with the question of custody of minor children is the DistrictCourt which has taken over the functions of the Orphan Chambers.
On the other hand, the counsel for the petitioner submitted that thecursus curiae in this country has established the principle that this Courthas a discretion to take away the custody of the child from the legalcustody of the father and hand the same over to the mother if such acourse is necessary in the best interests of the child’s life, health or morals.
254
TAMB1 AH, J.—Kamalawnthia v. do Silva
In order to appreciate fully the arguments adumbrated and developedby the counsel on both sides a short history of the Writ of HabeasCorpus in this country becomes necessary. The high prerogative Writof Habeas Corpus was unknown to the Roman-Dutch Law and was- developed by the English Courts. Even' in South Africa, the interdictumde libero hominc exhibendo is in effect indistinguishable from the English.Writ of Habeas Corpus (vide The Roman Law and Common Law Elementsin Law of South Africa and Ceylon by Professor Lee—Acta Juridica1959—page 114 at 116). When Ceylon was ceded to Britain, the Englishjudges, who were trained in the Anglo-Saxon system of jurisprudence,,granted this Writ and, in doing so, applied the principles of English Lawgoverning it, although there was no statutory justification for this pro-cedure (vide Re Shaw 1). Consequently, during the period 1801-1830the Writ appears to have issued from the Courts without any expresslegislative authority. In 1833, on the recommendations of the Cole-brooke Commission, the Charter of 1833 was enacted. Section 49 ofthis Charter contained the provisions relating to the issue of the Writof Habeas Corpus and this is now embodied in Section 45 (b) of our CourtsOrdinance (supra). Section 49 of the Charter of 1833 enacted thatthe Writ of Habeas Corpus was available “to bring the body of anyperson who shall be imprisoned …. and to discharge or remandany person so brought up or otherwise deal with such persons accordingto law ”.
Section 49 of the Courts Ordinance (No. 1 of 1889) introduced anotherground on which the Writ of Habeas .Corpus would issue’from our Courts.It enacted that the Supreme Court was empowered to issue Writs ofHabeas Corpus to bring the body of any person to be dealt with accordingto law. The same provision is now found in Section 45 (a) of the amendedCourts Ordinance (No. 18 of 1937).
Section 45 (a) and (b) of the Courts Ordinance (Cap. 6) are based on theprinciples which regulate the issue of the Writ of Habeas Corpus inEngland. In England, prior to the Judicature Act of 1873, the Writwas issued either by the Court of King’s Bench, where the common lawwas applied, or by the Court of Chancery, which exercised equity juris-diction. Speaking of the latter jurisdiction, Lord Cottcnham L.C., inthe case of re Spence 2 said: “Courts of law interfere by a habeas for theprotection of the person ol anybody who is suggested to be improperlydetained. Tins Court interferes for the protection of infants, qua infants,by virtue of the prerogative which belongs to the Crown as parens patriae,and the exercise of which is delegated to the Great Seal ”. After theJudicature Act, proceedings were instituted in the Queen’s Bench Division,and the Judges exercised the jurisdiction which was vested in theCourt of Chancery as the guardian of all infants. The Court had.the power in that capacity to supersede the natural guardianship of a
parent.
xt,1860~C2) Ram. Rep. p. 116 at 119.
* 11817) 2 Ph. 247 (L.G.}
TAMBIAH, J.—Kamalaxoathie v. de Silva
255
In Ceylon. Section 45 of tlie Courts Ordinance enacts :
“ The Supreme Court or any Judge thereof, whether at Colomboor elsewhere, shall be and is hereby authorised to grant and issuemandates in the nature of writs of habeas corpus to bring up beforesuch court or Judge—
(а)the body of any person to be dealt with according to law ;
(б)the body of any person illegally or improperly detained in public
or private custody ;
and to discharge or remand any person so brought up, or otherwisedeal with such person according to law. ”
When the Writ of Habeas Corpus received statutory recognition inCeylon, it was natural for the Courts of this Island, in interpreting Section45 of the Courts Ordinance, to resort to principles of English Law whichguided the English Courts in the issue of this prerogative writ. In amulti-racial country like ours, where different systems of law such as theHuman-Dutch Law', the Kandyan Law, the Thesawalamai and theMohamedan Law are all woven together into the fabric of our legal-system, it is indeed an inevitable feature that the law governing thecustody of a child should vary with the system of law applicable to theperson concerned. However in applications which have come up beforethis Court, whatever the system of law which may have been ajjplied todetermine the custody of the child, this Court has always asserted,in unmistakable language, that, it has the discretion to remove a childfrom the lawful custody of the father if such a course was necessary inthe interests of the life, health or morals of that child.
Ill Re Andrew Greig 1, when English precedents were cited by. counselto show that the father’s right to the custody of the child was paramount,Rowe C.J., observed (at page 151) : “ Ihe Supreme Court is of opinionhowever that this Court, acting under the authority of the Charter of 1833and the Dutch law, is not bound by these precedents. According toGrotius, Voet, Vanderlinden and Van Leeuwen, a much larger discretionfounded apparently on the rights of community which the wife acquires onmarriage— a discretion also resembling more nearly that exercised by iheChancellor in England, tcho as parens patriae, loolcs to the interests of thechildren as well as to the circumstauc s and wishes of the parents. See thecase of Alicia Race, as decided in the Queen’s Bench and in Chancery ;26 L. J. 176, Q.B. This view of the principle of the Dutch Law is corro-borated by the case of Farmer v. Farmer, decided in 1843 at the Cape ofGood Hope. See Menzies’ Reports, pp. 241, 278. ”
In Mohamedu Cassim v. Cassic Lebbe 2, where a Muslim child was in thecustody of her maternal aunt from her infancy till the ninth year, theCourt refused to restore the child to her father’s custody as such achange would be to the detriment of the child’s welfare. Lyall-Grant J., said (at page 138) : “ I do not think that this Court1 3 Lorenz Reports 149.* (1927) 29 N. L. R. 136.
256
TAMB3AH, J.—Kamalawalhic v. de Silva
has ever felt itself compelled to order a child to be removed fromthe custody of relatives, who are performing their duty towards the childin a perfectly satisfactory manner, and to be handed over to the custodyof its natural guardian, where the Court is of the opinion that such a changewould be to the detriment of the welfare of the child. ”
In Gooneratnayalca v. Clayton1, a father sought to resume control of thecustody of a girl of over sixteen years by a Writ of Habeas Corpus and itwas held by a bench of three judges that it was competent for the Courtto take into consideration the wishes of the girl in determining the questionof custody. It was contended by the counsel in this case that the Roman-Hutch law and not the English law, was applicable to the case and,therefore, the consent of the minor is not needed. Fisher C.J.,. answeredthis question as follows :—“ It is clear that the mandate referred to isequivalent to a writ of habeas corpus, and I think that the principles whichregulate the issue of such a mandate should- be the same as those which regulatethe issue of a writ of habeas corpus in England. We should, therefore,in my opinion, apply the English law in considering the question whichhas been submitted to us. ”
In Martha Ivaldy v. F. P. Ivaldy 2 the Court, after reviewing the SouthAfrican authorities, laid down the rule that under the Roman-HutchLaw, where there has been no dissolution of the common home, thefather’s right to the custody of his minor children remains unaffected bythe fact of the separation of the spouses and can only be interfered withon special grounds such, for example, as danger to the life, health or morals•of the children.•*
In Padma Fernando v. T. S. Fernando 3, this Court again laid down therule that the father’s fundamental right to the custody of his child duringthe subsistence of his marriage may be overridden on the ground thatif the child is permitted to continue in the custody of the father there wouldbe detriment to the life, health or morals of the child. Fernando J.,while affirming the view which ho ‘expressed in the earlier case ofIvaldy v. Ivaldy (supra), stated (at page 263) : “ No reason whateverhas been made out to show that the mother is in any way unfit to carryout the ordinary duties of a mother. On the contrary the evidencewhich has been accepted proves that the husband has done all he can toprevent his wife from carrying out those duties. I need hardly stateany reasons for forming the opinion that it would be detrimental to thelife and health and even of the morals of such a young child if that child is•forcibly separated from her mother and compelled to live, not even inher father’s custody, but under the care of an elderly relative to whom sheis not bound by any natural ties. So long as the mother is shown to be fitto care for the child, it is a natural right of the child that she should enjoythe advantage of her mother's care and not be deprived of that advantagecapriciously. ” The same observations may be made as regards thefacts of the instant case.
1 (1929) 31 N. L. R. 132.2 (1956) 57 N. L. R. 568.
*(1956) 58 N. L. R. 262.
TAMBIAH, J.—Kamalawathie v. de Silva
257
In the recent case of Dayangani Weragoda v. R. Weragoda and another1the same arguments which were put forward by the counsel for the1st respondent In the instant case were placed before the Court. Sansoni J.,after a review of the English, South African and Ceylon cases, cameto the conclusion that under Section 45 (a) of the Courts Ordinance (Cap.6), this Court had the power, on certain grounds, to take away a childfrom her father and hand it over to the mother. The Court also heldthat the principles under which our Courts would issue Habeas Corpuswere the same as those which regulated the issue of such a writ in England.Having observed that Section 45 (a) of the Courts Ordinance was muchwider than Section 45 (&) and enables the writ to be issued to bring upthe body of any person to be dealt with according to law ”, Sansoni J.,proceeded to state that the Writ is issued not in order to enquire whetherthe infant's liberty is restrained but in order that the Supreme Court maydecide what order should be made, after inquiry, as to the child’s custody,in the interests of the child. After reviewing the more important Englishcases, Sansoni J., quoted with approval the dictum of Lord Simondsin. the Privy Council case of Mclcee v. McJcee8 that“ the welfare andhappiness of the infant is the paramount consideration .. to this
paramount consideration all others yield Referring to Mckee's case,Sansoni J., said “ It is true that he was there dealing with a casefrom Canada, but he said that the same -principle should guide mein the present application also. Although in England the principleapplies because, •! suppose, the Court is the guardian of all infants, inRoman Hutch Law the State is regarded as the upper guardian of allminors. I do not think there is any material difference in the twoconcepts. In deciding what is best for the child, the Court will haveregard to the rights of either parents, their character, and any other factorwhich the Court thinks ought to be weighed. ”
Much stress was laid in Weragoda’s case (supra) by the counsel for therespondent, who relying on the ruling in Calitz v. Calitz 3, urged that therights of the father were superior to those of the mother in regard'to thecustody of the children of the marriage and that where no divorce orseparation has been granted, the Courthad no jurisdiction to deprive thefather of his custody, except under the Court’s powers as upper guardianof all minors to interfere with the father’s custody on special grounds,such as for example danger to the child’s life, health or morals.Referring to this contention, Sansoni J., stated “ I think that dangerto the child’s life, health or morals is only an example of the special groundswhich would justify the interference of the Court. As I see it, the Courtwill decide who is to have the custody of the child after taking into accountall the factors affecting the case and after giving due effect to all presumptions
*(1951) A. O. 352.
1 (1961) 59 O. L. W. 49.
8 (1939) A. D. 56.
258
TAMBIAH, J.'—Kamalawathic v. de Silva
and counter-presumptions that may apply, but bearing in mind the para-mount consideration that the child's welfare is the matter that the Court isthere to safeguard. ■ The rights of the father will prevail if they are notdisplaced by considerations relating to the welfare of the child, for thepetitioner who seeks to displace those rights must make out his or hercase. ”
In the instant case, too, the counsel for the 1st respondent contendedthat -the ruling in Calitz v. Calitz (supra) went to the extent of holdingthat the Court has no jurisdiction under any circumstances to deprivethe father of the custody of the child. In Calitz's case, the issue waswhether a Court, after dismissing an action for separation, had thejurisdiction to make an order depriving a father of the custody of thechild, Tindall J.A., who delivered the judgment of the AppellateDivision, cited with approval the dictum in Nicolson v. Nicolson1 whichis as follows :—
" The legal right to the custody of a lawful child is in the father.But that right is not absolute, it is not beyond the control of the law. Itis within the power of the Court to mitigate the severity of the general ruleby interfering in exceptional cases. The exceptions must be few and mustrest on clear grounds and the grounds must be found in considerations ofdanger to the life, health or morals of the child. When the interests of thechild in regard to life, health or morals have required it, the Court Juzs refusedto permit the father to retain the custody.”
The term “ special grounds ” as used by Tindall J.A., in Calitz'scase (supra), was further elaborated in the later cases which came up inSouth Africa. In Green v. Green2, the Court observed that it will nothesitate to deprive the father of the custody where such custody is shownto be detrimental to the interests of the child, (vide also Bigg v. Pigg 3;Kritsinger v. Kritsinger* Fereira v. Fereira5.)
The Homan Dutch text writers have given a wide discretion to theCourts of Law in interfering with the father’s wishes regarding the custodyof a child. . Voet states (Vt. 27 .2.1) “ If there is a dispute as to where award ought to be brought up to stay, the praetor, after hearing the case,-ought to decide that matter on personality, position and circumstances,so that the upbringing may take place without any evil suspicion ofplots against life or chastity. Generally, indeed it takes place in thehouse of the person whom the father has indicated, unless for somereason ho is suspect to the praetor. That is because in such a case thepraetor should summon the relations of the ward take cognisance of. just grounds for suspicion, and rather pursue the interests of the wards thanthe written words of the will or codicil Voet, no doubt was here dealingwith a case where the father was dead, but the principle which he enun-ciates is that the custody of a child can be taken away, even against thewishes of the father, from the testamentary guardian, if such a course isnecessary in the best interests of the child.
(G Sc. L. R. 692.3 (1946) N. P. D. 481.
(1948) 2 S A Jj. R. 1054..4 (1951) 2 S. A. L. R. 11.
(1949) TV. L. D. 2 P.H.B 36.
TAMBIAH, J.—Kamalaioathic v. do Silva
259*
Van Leeuwen (1.15.6) states “ After the dissolution of the marriagethe matter is left to the discretion of the Judge, who will allow the fatherthe custody of the boys, and the mother that of the girls, or will permitall the children, without distinction, to remain either with the father orthe mother, according to circumstances.” Vander Linden (VdL 1.4.1)states “ With respect to the power of parents over their children, oursdiffer very much from the extensive paternal power exercised by theRomans. This parental power is not only possessed by the father, but alsoby the mother and after the death of the father by the mother alone. ”
The authorities cited above show clearly that this Court can, in aHabeas Corpus application, order the father to hand over the custodyof the child to the mother if such a course is necessary in the interestsof the child’s life, health or morals. The citations in the various cases,which have established this principle, show that our Courts have oftenrelied on English decisions, and sometimes on the Roman-Dutch Law,to formulate this principle. Law, like race, is not a pure-bloodedcreature. English Law has been tacitly adopted in Ceylon in manybranches of the Law such as the Law of Persons, Property and Obligations,where, according to the traditional view, the Roman-Dutch Law shouldapply. Referring to the inroads made by English Law into the legalsystem of South Africa Wessels states (vide History of Roman-DutchLaw Wessels—page 380): “ In some respects the introduction of EnglishLaw into South Africa has been slow and insidious; in other respectsit has belen rapid and overwhelming. The influence exerted by English
textbooks and the decisions of the English Courts has tended gradually to
* ' ■ *
modify the principles of Roman-Dutch Law and to bend thorn as toassume the form of similar English principlesProfessor Lee, comment-
ing on the influence of English Law in South Africa, stated (vide“ The Roman Law and Common Law elements in the Law of SouthAfrica and Ceylon ” by R. W. Lee—Acta Juridica (1959) p. 114 at 115):“ If what the British took over was an amalgam of Roman Law andDutch Law customary and statute, what remains today is a fusion ofRoman Law, Dutch Law and English Law Referring to the inter-action of Roman Law and English Law principles, Professor Lee stated :“ This interplay of forces tends to become world-wide in its operation,but is most conspicuous where political conditions have brought the twosystems into close and constant contact ”.
Therefore, in the instant case, the contention of the learned counselfor the 1st respondent, that this Court has no jurisdiction to entertain thisapplication, must necessarily fail. The counsel for the 1st respondentalso contended that the only Court which has any jurisdiction to entertainthis application is the District Court as such a power has been especiallyconferred on it by our Courts Ordinance (supra). The District Court, nodoubt, in certain circumstances, functions as the guardian of minors and
260
L. B. DE SILVA, J.—Aboysekera v. Bisso Mcnika
this Court has supervisory jurisdiction over such Courts. However,in view of Section 45 (a) of our Courts Ordinance, this Court is invested,with the power to order a father to hand over the custody of a child to themother in the circumstances set out above.
For these reasons, I hold that my earlier order was not made perincuriam. The respondent is ordered to hand over the corpus to thepetitioner but tho petitioner should grant reasonable access to the 1strespondent to see the child. The terms and conditions of access to the-corpus should be determined by the Magistrate and, for this purpose,,tho record will be sent up to the Magistrate.
Application allowed.