KALANSOORIYA AND ANOTHER

KALANSOORIYA AND ANOTHER

Vs.

PRIYANTHA EPA AND OTHERS

SUPREME COURT
DE ABREW, J.
MALALGODA, J.
SURASENA, J.
SC/APPEAL/12/2018
SC/HCCA/232/17/LA
EP/HCCA/AMP/300/2016
DC AMPARA 374/SPL
MARCH 6, 2019

Custody of children-Welfare of the child-Best interests of the child - Natural rights of parents to the custody of children-Delivery of a child to a third party

The respondents are the natural parents of the child who was given to the appellants at 51/2 months. The appellants filed an adoption case in the District Court of Ampara when the child was around 1 year and 5 months old, which was withdrawn when the respondents objected to it. When the child was 2 years and 1 month old, the respondents filed the present case in the District Court of Ampara seeking custody of the child. The District Judge dismissed the case and gave legal and physical

custody of the child to the appellants. Upon appeal to the Civil Appeal High Court, the order of the District Judge was set aside. The appellants appealed to the Supreme Court.

Held:

1. Custody of very young children ought to be given to their mother. The court would not lightly deprive the mother of her love for her children.

2. The court will not deprive a parent of the custody of a child unless satisfied that It is essential to the safety or welfare of the child that the rights of the parent should be superseded or interfered with.

3. Mere delivery of a child by its natural parent to a third party does not invest the transaction with legal consequences. If the parent has the right to hand over custody of a child, then that parent would also have the undoubted right to resume custody, as the authority of the parent must prevail in the latter instance as much as in the former. Therefore, as the natural parents of the child, the respondents have the legal right to keep the child in their custody.

Cases referred to:

1. M. Jeyaraman v. T. Jeyaraman (1999) 1 Sri LR 113 at 116
2. Precia W. Fernnado v. Dudley W. Fernnado 70 NLR 534
3. Fernando v. Fernando 58 NLR 262 at 263
4. G. Premawathi v. A. Kudalugoda 75 NLR 398
5. Ran Menika v. Paynter 34 NLR 127
6. D. Endoris v. D. Kiripetta 73 NLR 20

APPEAL from the Judgment of the High Court of Civil Appeal of Ampara.

M.U.M. Ali Sabry, P.C., with Shamith Fernando and Shehani Alwis for the 2nd and 3rd Respondent-Respondent-Petitioner-Appellants.

Anura Gunaratne for the Petitioner-Appellant-Respondent-Respondents.

cur. adv. vult.

April 3, 2019

DEABREW,J.

The Petitioner-Appellant-Respondent-Respondents whose names are Jagath Priyantha Epa and Deepika Lakmali Kalansooriya (hereinafter

referred to as the Petitioner-Respondents) filed action in the District Court of Ampara (case No. 374/Spl) against the 2nd and 3rd Respondent-Respondent-Petitioner-Appellants whose names are Janaka Pushpa Kumara Kalansooriya and Wljesinghe Arachchige Wasana Malkanthi (hereinafter referred to as the 2nd and 3rd Respondent-Appellants) praying, inter alia, for a declaration that the Petitioner-Respondents are entitled to the legal and physical custody of their daughter the 1st Respondent- Respondent-Respondent-Respondent in this case (hereinafter referred to as the 1st Respondent-Respondent) whose name is Ahingsha Sathsarani Epa; to give them the legal and physical custody of their daughter, the 1st Respondent-Respondent; and to return the 1st Respondent-Respondent to the Petitioner-Respondents.

The learned District Judge, by his order dated 15.12.2015 dismissing the case of the Petitioner-Respondents, gave the legal and physical custody of the 1st Respondent-Respondent to the 2nd and 3rd Respondent-Appellants. He made further order directing the Registrar General to amend the birth certificate of the 1st Respondent-Respondent by entering the names of the 2nd and 3rd Respondent-Appellants as parents' names. I have to note here that there was no application before the learned District Judge to change names of the

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