066-NLR-NLR-V-58-PADMA-FERNANDO-Appellant-and-T.-S.-FERNANDO-Respondent.pdf
1956Present :H. N. G. Fernando, J.PAD?.FA FERNANDO, Appellant, and T. S. FERNANDO,
Respondent
I>r the Matter of an Application fob a Writ ofHabeas Corpus
Petition JSTo. 2,2-39 of 1955
Habeas corpus—Custody of child—Contest between father and mother—Scope offundamental right of father.
Whore a wife sought to obtain from her husband the custody of a child whowas- a girl of the ago of four and a half years—
Held, that a father’s fundamental right to the custody of his child during thosubsistence of his marriage may he overridden on tho ground that if the childis permitted to continue in the custody of tho father there would be detrimentto tho life, health or morals of tlio child. It would ho detrimental to the lifeand health and even of tho morals of a young child if that child is forcefullyseparated at a very tender ago from her mother and compelled to live, not evenin tho father’s custody, but under the care of an elderly relative to whom thochild is not bound by any natural tics. So long os tho mother is shown to'bofit to caro for tho 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.
-Application for a-writ of habeas corpus.
Nadesan, Q.C., with J. A. P. Cherubim and 31. Siriicardenc. forthe petitioner.
G. /?. Chilly, Q-C., with .4. 31. Coomarastcamy, for the respondent.
Cur. etdv. mill.
October 24, 1956. IT. N. G. Fernando, J.—
This is an application by way of Habeas Corpus in which a wife seeksto obtain from her husband the custody of a child who is a girl presentlyof the age of four and a half years. There had been an earlier applicationby this petitioner, for the custody of the same child and in June 1954an agreement was reached by which the husband undertook to procurea suitable house on or before 1st August 1954, and that if he failed so todo lie would deliver the custody of the child to the petitioner until suchtime as a suitable house was found. The husband failed to procure asuitable house within the specified period and a further settlementwas reached in September 1954 by which he undertook to make habitablecertain premises in Moratiuva and agreed that the petitioner could havecustody of the child until those premises became available.
In pursuance of this settlement which was approved by this Court,the petitioner had the custody of the child for some months, but inNovember 1955 the husband forcibly regained custody of the child againstthe wishes of the petitioner.
The case for the petitioner, which was put forward both at the earlierinquiry and at the present one and also at the other proceedings inwhich the petitioner sought maintenance from her husband, has beenthat the husband and wife lived, not in a house of their own, but at thehouse of the husband’s sister, herself a married woman with no children.The allegation of fact made by the petitioner is that ever since the child wasweaned the petitioner has not been permitted to look after the child oreven have the child in her room, but that, instead, the child has been“ handed over to the husband’s married sister to be brought up ns herchild ”. The petitioner has also alleged other conduct on the part of herhusband amounting to cruelty and claims that the husband lias broughtabout a situation in which it would be quite intolerable for the petitionerto live with him in the sister’s house. It is in view of these allegationsthat the earlier settlements both provided that the husband wouldsecure a house for the wife and child separate from the house of themarried sister.
At the stage when the present inquiry was held by the Magistrate, theproceedings in the maintenance application were pending and have nowbeen determined on appeal. By his judgment in S. C. No. 1.373/55—31. C. Addnl. 37I9S, delivered on 6th August 1950, my brother Fernandohas set aside the order made by the Magistrate in the maintenanceproceedings and has made order directing the husband to pay maintenanceto the petitioner. That judgment upheld the position taken by thepetitioner that the husband did in fact take the child away from thepetitioner and hand the child to his sister. There is therefore a decisionof this Court which entirely accepts the position that the cause of thedifferences between husband and wife is that the husband wishes todeprive his wife of her natural right to care for and nurture the childof her marriage and to deprive the child at a very tender age of the inestim-able benefit of being so cared for and nurtured. The husband’s desireis to entrust the child instead to the care of a sister over fifty years ofage to compensate her, apparently, for her own childlessness. On thesefacts the finding of which is for the present purpose incontrovertible,
I have to apply the (cst which I adopted recently in Icahhj v. I valetycl al. and to ask myself whether a father’s fundamental right to thecustody of his children during the subsistence of the marriage is to beoverridden on the ground that if the child is permitted to continue in thecustody of her father there would be detriment to the life, health ormorals of the child. In my opinion the answer is obvious. No reasonwhatever has been made out to show that the mother is in any way unfitto cany out the ordinary duties of a mother. On the contrary the evi-dence which has been accepted j’roves that- the husband has done all hecan-to prevent his wife from carrying out those duties. I need hardlystate any reasons for forming the opinion that it would be detrimental to
the life and health and even of the morals of such a young child if thatchild is forcefully separated from her mother and compelled to live, noteven in her father’s custody, but under the care of an elderly relative to•whom she is not bound by any natural ties. So long ns the mother isshown to be fit to care for the child, it is a natural right of the child thatshe should enjoy the advantage of her mother’s care and not be deprivedof that advantage capriciously. Moreover the very fact of the forcedseparation and the knowledge that the mother with whom the child hadlived for a fairly long period can have no part to play in the child’s futureis at least likely to affect the mental liealth of the child. For these reasonsI have no hesitation in accepting the recommendation of the Magistratewho conducted the inquiry and in making order directing the respondentto deliver the custody of the child to the Petitioner.
October 29, 195G.—
My attention has been drawn to the omission to provide in the aboveorder that the respondent may have access to the child. I direct thatthe respondent shoidd have the right to visit the child once each weekeither at the petitioner’s residence, or if the parties are not agreeable tothat, at a place determined by the Magistrate after hearing the parties.The Magistrate will also fix the hour and duration of the visits.
Application allowed.