Abdul Wahab Patail JC:

This is an application for custody of a two year old child by its mother.

The applicant is the mother of a child Barath a/l Sugumaran born on 25 January 1994, the result of an association with the first defendant. The second defendant is the mother of the first defendant. There is no dispute the first defendant is the father of the child, or that the second defendant is the grandmother of the child.

The applicant had stayed with the defendants in the latter's house for about two months after the child was born. She had then left to return to Taiping, leaving behind the child in the care of the defendants to this day.

From Taiping the applicant had telephoned the second defendant several times to inquire about her child. Between March and July 1995 the applicant had visited her child in the defendants' house. The applicant however was denied access when the first defendant was admitted to Pusat Serenti for a period of two years. The first defendant had escaped and is now a fugitive.

After July, when the applicant wanted to see her child, she was refused access by the second defendant. The applicant became angry and broke a flower pot in the second defendants' house. She had made a report of not being allowed to see her child in September 1995.

The applicant further alleges:

a. Due to a caesarian birth and slow recovery she was forced to stay with the defendants. The second defendant did not take care of her and asked the applicants' mother to take the applicant back to Taiping. That is why she left the child with the second defendant.

b. The first defendant is a drug addict to such an extent he was unable to find a job, did not provide for the applicant and he even smoked drugs in front of her.

c. That in February 1995, she had gone to the second defendants' house to see her child but instead she was beaten by the second defendant and a friend of the first defendant.

It was further argued that the second defendant has no locus standi as she is not the mother-in-law of the applicant, and therefore the applicant has the right of custody.

The defendants opposes the application, and alleges:

a. Before the child was born she had mentioned her intention to surrender her child to her sister in Kuala Kangsar, and that she does not intend to look after the child. Her sister although married for five years is childless, and in the original appearance on 4 September 1995 had mentioned the child will be looked after by the sister.

b. That during pregnancy she had not wanted the child, indeed wanted the unborn child to die.

c. The applicant tried to injure the child after it was born.

d. That the applicant is not in a situation to look after the child:

i. The address she has given is the house of one Supramaniam a/l Narayanan, who is married with nine children in that address.

ii. There is no evidence where she stays, whether a rented room or house.

iii. She works in the Selayang wholesale market and has no fixed hours.

iv. She is prone to violence and is rough of language and manners.

v. There is no allegation child is in any way abused or ill-treated by the defendants, or that the second defendant is unsuitable. The second defendant is a 56 year old housewife whose husband is an odd-job labourer, with sons who are working, and two adopted children of 12 and 20 years of age. The child has been taken for innoculations etc. Instead, a change of custody would uproot the child.

The applicant's reply is, briefly:

a. The applicant will take the child back to Taiping. The applicant will look for a job, and she will be assisted by her sister to look after the child, and the welfare of the child is ensured under the plaintiff's mother.

b. That her bouts of violence was a result of the psychological pressure in not having her child.

c. That she let child drop is not true. If true there should be a medical report.

d. There is no evidence applicant is abusive to children.

e. Under s. 88 Guardianship of Infants Act - pre