078-NLR-NLR-V-46-VAITHALINGAM-et-al.-Application-and-GNANAPATHIPILLAI-et-al.-Respondents.pdf
Vaithalmgam and GnanapathipiUai
286
1944Present: Soertsz J.
VAITHALINGAM et al., Applicants and GNANAPATHIPILLAIet al., Bespondents.
In revision M. C. Jaffna, 5,059.
Jurisdiction—Inquiry into charge of kidnapping a girl from lawful guardian-ship—Power of Court to order the girl to remain in Salvation Army Homepending inquiry.
Where pending an inquiry into a charge of kidnapping a young womanof 16 years of age from lawful guardianship preferred against the father,the Magistrate ordered that the young woman should remain in theSalvation Army Some.
Held, the Court had no jurisdiction to make the order.
288SOEHTSZ J.—Vaithalingam and Gnanapathipillai.
fg^HIS was an application in revision.
H. V. Perera.’K.C. (with him H. W. Thambiah), for petitioner.
H. W. Jayawardene, for respondent.
August 4, 1944. Soertsz J.—
This is a joint application made by the husband and by the mother of ayoung woman named Manomany said to be 16 years of age asking thatthe order made by the Magistrate of Jaffna dated June 3, 1944, be setaside in the exercise of our revisionary jurisdiction.
An inquiry is pending in the Magistrate’s Court in regard to a charge ofkidnapping Manomany from lawful guardianship preferred against herfather and others. Pending this inquiry the Magistrate has ordered thatManomany should remain in the Salvation Army Home in Jaffna.That is the order that is sought to be revised.
Perhaps, motives of almost paternal solicitude led the Magistrate tomake this order, but there does not seem to be any vestige of ajurisdiction vested in a Magistrate or Judge to make such an order. TheMagistrate appears to think that he gets over this difficulty by sayingthat the girl “ is of tender years and the evidence may be tampered with.As I stated before, no court of competent jurisdiction has so far given thecustody of the girl either to the father or to the mother and I am overridingno order of any court in ordering the girl to remain in the Salvation ArmyHome ”.
This is extraordinary reasoning. It implies that if any court has notmade an order at some time or other regarding the custody of a youngwoman of 16 years of age or thereabout, a Magistrate is free to directthat young woman to stay here or to stay there. If that is the positionin law, it means that all young women of that age, or thereabout, havehad mistaken ideas of the extent of their liberty and have not appreciatedthe fact that they are the protegees of Magistrates, In regard to theother reason given by the Magistrate that if she is free her evidence maybe tampered with, by party of reasoning, every witness, man, woman orchild, must be liable to an order by a Magistrate in regard to the place inwhich they should stay pending an inquiry or trial, lest their evidence betampered with. These are startling propositions.
I set aside the order. Telegraph to the Magistrate to have the girlproduced before him and to tell her that she is free to go where she chooses.Let that order be made in the presence of the petitioners.
Order set aside.