JUDGMENT

Bellamy J:

This is a suit instituted by a Hindu father for an order for the custody of his two infant children alleged to be detained by the defendant, a Hindu woman, who is the plaintiff's wife and the mother of the children.

A question of procedure (upon which, as far as I am aware, there has been no reported decision in this Court although the question must have arisen before) immediately arises whether proceedings of the kind must be taken by way of originating summons under s 472 of the Federated Malay States Civil Procedure Code and not by a suit.

The answer is, I think, to be found in s 6(i) of the Civil Law Enactment, 1937 which provides:

In all cases relating to the custody and control of infants the law to be administered shall be the same as would have been administered in like cases in England at the commencement of this enactment regard being had to the religion and customs of the parties concerned unless in any case other provision is or shall be made by any written law.

There is no other written law which applies in the Malay States, and it follows that English law as it was at the 12 March 1937 the date of the commencement of the Civil Law Enactment, 1937 applies to such cases.

The relevant English law is to be found in the Guardianship of Infants Acts, 1886 and 1925. Under these Acts applications are made to the Court in the manner laid down by rules made under the Guardianship of Infants Act, 1886 (s 11); and the procedure is governed in the High Court by O 55, r 2(12) and O 55A of the Rules of the Supreme Court. Order 55A admits of any application either under the Act of 1886 or under the Act of 1925 by an originating summons in the matter of the infant where there is no action of other proceeding pending. It does not appear to admit of any such proceeding being taken by a suit.

In my view, therefore, no suit will lie here for the custody of an infant. The proper procedure, where there is no action or other proceedings pending (as in this case), is for an application to be made by originating summons in the matter of the infant. It will be noted that this procedure is in line with the procedure in the Settlements where under the Guardianship of Infants Ordinance (Ch 50) of the Straits Settlements the procedure is regulated by O 52, r 23 of the Rules of the Supreme Court, 1934 cl (1) of which is taken from the English O 55A, r 2.

It follows that in my view these proceedings have been misconceived. The suit is dismissed, with costs, without prejudice to any further proceedings which the father might take in proper form.