This is an application by S. Thaiyalnayagam d/o Sinnakutty (to whom I shall refer as Madam Thaiyalnayagam) for an order of custody of the following infants:—

(a) Danendra Sinnappa.

(b) Rohini Sinnappa.

(c) Malini Sinnappa.

These infants are the children of Sinnappa Sivapakiam and Jean Philomena Perera. Sinnappa Sivapakiam was the son of Madam Thaiyalnayagam, and he died in a car accident on January 1, 1978. Jean Philomena Perera was murdered on April 6, 1979 and she was the daughter of the Respondent, Gertrude Mabel Kodagoda alias Mabel Perera (to whom I shall refer as Madam Kodagoda). Therefore both Madam Thaiyalnayagam and Madam Kodagoda are grandmothers of the infants the subject matter of this application.

It would be useful to state briefly the history of the proceedings in the court relating to the infants. In May 1979 Madam Kodagoda filed an application for an order of adoption of the three infants, vide Adoption Application No. 4 of 1979. On May 18, 1979 Azmi J. made an interim order for Madam Kodagoda to have custody of theinfants for six months. On June 5, 1979 Madam Thaiyalnayagam applied to intervene in the adoption proceedings and on June 19, 1979 Abdul Hamid J. made an order in terms. On June 21, 1979 Madam Thaiyalnayagam as Intervener filed a notice of motion for the adoption proceedings to be struck off, that the interim order of May 18, 1979 be rescinded and that Madam Kodagoda should deliver the infants to her. On July 13, 1979 Madam Thaiyalnayagam as Intervener applied for an order of access to the infants while the adoption application was pending. On November 16, 1979 Madam Kodagoda by summons applied for extension of the interim order of custody dated May 18, 1979, and it was granted on December 11, 1979. On June 9, 1980 Madam Thaiyalnayagam filed this Originating Summons No. F357 of 1980 applying for an order that:

(1) the custody, care and control of the three infants be committed to her,

(2) she be appointed legal guardian of the infants,

(3) Madam Kodagoda should deliver the infants to her.

Both parties agree that the adoption application and this application for custody be heard together. Eventually they were heard together, and I interviewed the three infants. I decided to dismiss Madam Kodagoda's application for adoption, and I am left with the question of custody to dispose of. On the question of custody I have to consider the welfare of the infants as the first and paramount consideration, that is to say their welfare must be the overriding consideration and other considerations must be subordinate. The question to be determined is whether Madam Thaiyalnayagam should be given custody of the infants or whether Madam Kodagoda should continue to have the custody for which she had previously obtained an order of the court. Relating to Madam Kodagoda's application for adoption and Madam Thaiyalnayagam's application for custody the Social Welfare Officers have made investigations and submitted their reports in detail. From these reports and from the many affidavits filed by both parties I have been able to make findings of facts relevant to these matters.

Madam Kodagoda is a widow aged about 60 years. She has four children apart from Jean Philomena Perera, deceased. One of her daughters although already about 40 years of age is unmarried and unoccupied and is reported to be childish. Her elder son is an accounts manager for a company and is married to a working wife. The couple is earning a good income. Madam Kodagoda's third daughter is a qualified music teacher also earning a good income. Her younger son is pursuing a chartered accounting course in England and at the same time earning sufficient allowance to pay for his studies. Madam Kodagoda herself is also earning substantial income. She has two houses which she rents out and she runs a kindergarten class at her house and does work as a seamstress. She receives pension from the Widows and Orphans Fund. She has two girls living with he