Abdul Hamid Omar FJ:

Under Originating Motion 23/81 at the High Court Muar Kanagarajah s/o Kandiah the applicant/respondent moved for an order that the writ of habeas corpus ad subjiciendumbe issued directing C. Kanagalingam the respondent/appellant to produce his daughter Rathika before the Court to be delivered to him on the grounds that he is the lawful father and guardian of the daughter born on 3 September 1963, allegedly taken away and kept by the appellant with a view to depriving him of the lawful custody of his daughter.

The proceedings were instituted pursuant toO. 54 of the Rules of the High Court 1980.

The learned Judicial Commissioner sitting, in the High Court, Muar, made an order on 4 October 1981, directing that Rathika be put in the care of Mrs. Siva @ Paliambihai d/o Suppiah, Tambun Height, Ipoh to stay for a year or 6 months or longer pending further application. The Social Welfare Officer was to be asked to visit the place to ascertain that the arrangement is working out well and to submit a report. It is an appeal against that decision that is now before us.

Pending the disposal of the appeal, the appellant by notice of motion (ex parte) dated 13 October 1981 applied to a Judge of the Federal Court for an interim order that custody and care of Rathika be granted to him as husband. The Honourable the Chief Justice after hearing the application ex partemade the following orders:

(i) That the custody and care of Rathika d/o Kanagarajah be granted to her husband the appellant C. Kanagalingam pending the disposal of this appeal.

(ii) That Mrs. Sivarajah the aunt to whom custody of the said Rathika d/o Kanagrajah was given by order of the High Court, Muar do forthwith release the said Rathika d/o Kanagarajah to the appellant.

(iii) That a copy of these proceedings and the order made herein be served on the respondent Kanagarajah s/o Kandiah to enable him if he so desires to apply to the full Court to vary or discharge the said order.

On 17 October 1981, in the Federal Court the respondent Kanagarajah applied for the interim order made on 14 October to be set aside. On 30 October 1981, the Federal Court after hearing the motion inter partesordered that the order dated 14 October 1981, be set aside and that the order of the High Court, Muar be reinstated and that the custody and care of Rathika be restored to the father Kanagarajah.

We now deal with this appeal.

In his judgment the learned Judicial Commissioner considered the testimony given by Rathika to the effect that "her family was ill treating her, that she was in love with Kanagalingam and that in any case she had gone through some form of marriage ceremony with Kanagalingam in a temple at Maran. She did not want to go back to her parents but wanted to be with her `husband'. She admitted that her parents were against her marriage with Kanagalingam and at that ceremony none of them were present, nor that they had been informed of the plan to marry. He concluded that the so-called ceremony was a device concocted to remove her from the custody and guardianship of her parents.

The learned Judicial Commissioner observed that Counsel for Rathika never at any time raised any objection to the proceedings under O. 54except that on 8 October 1981, four days after the order was made he wrote to the Court requesting another hearing on the ground that O. 54 was ultra viresthe powers of the rules committee and that the Court should first ascertain whether the infant was actually married to Kanagalingam before giving its ruling.

In his judgment the learned Judicial Commissioner said and we quote:

It is settled law that the guardian's (in this case the fathers') consent is a necessary prerequisite to a minor's marriage. Under the of Marriages Registration Ordinance 1952, s. 4, any such marriage not under the Civil Marriage Ordinance may be registered only if the Registrar, appointed thereunder is satisfied that the parents, if living, shall appear before him, and