MILINDA DE SILVA

MILINDA DE SILVA

VS

ASHANI PERERA AND ANOTHER

COURT OF APPEAL
MALALGODA, PC. J (P/CA))
THURAIRAJA, PC. J.
CA13/2016 (CONTEMPT OF COURT)
DC MORATUWA 2275/2016/D
FEBRUARY 28, 2017
MARCH 07, 2017

Contempt of Court - Article 105(3) - United Nations Convention on the Rights of the Child - Article 3 - Best interest of child - Primary Consideration?

In the Divorce case filed, the Petitioner (Father) was permitted to have access to his Son from Friday afternoon till Noon Sunday. The Respondent (mother) flouted the Order by not allowing the child to go with the Petitioner-Father. The Petitioner alleging that, the 2nd Respondent, the father of the 1st Respondent (wife) had aided and abetted the 1st Respondent to violate the Order - moved Court under Article 105(3) of the Constitution for contempt of Court - against both

Held :

Per S. Thurairaja, PC. J.

"I am mindful of the provisions of the United Nations Convention on the Rights of the Child, Sri Lanka is a signatory to the said Convention - and ratified by Parliament. Article 3 of the Convention states,

1. In all Actions concerning children, whether undertaken by public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians or other individuals legally responsible for him or her and to this end, shall take ail appropriate legislative and administrative measures.

3. State Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health in the number and suitability of their staff as well as competent supervision."

Per S. Thurairaja, PC. J.

"The Petitioner and the Respondents are fighting a battle/dispute between them, they should be mindful that, an innocent child can be victimized by their conduct. Therefore, the parties are advised to be cautious, the Court will consider the best interest of the child and not the benefit or the interest of the adult parties."

[1] The 2nd Respondent is not named as a party in the District Court, material party is the 1st Respondent, Contempt proceedings cannot proceed against the 2nd Respondent - he should be discharged from the proceedings.

Contempt of Court inquiry on a Preliminary objection raised.

Chrishmal Warnasuriya with Jeevan Goonetilleke for the Petitioner

Shantha Perera for the Respondents.

Cur. adv. vult.

March 14, 2017

S. THURAIRAJA, PC. J.

The Petitioner and the 1st respondent are husband and wife and they are involved in a divorce case at the District Court of Moratuwa, Case No. 2275/2016/D. Presently the Petitioner's complaint is that he was permitted to have access to his son from Friday after school till noon Sunday, and the Respondent has flouted the order by not allowing the child to go with the father namely the petitioner in this case. The 2nd Respondent according to the Petitioner is the father of the 1st Respondent had aided and abetted the 1st Respondent to violate the order of access issued by

the District Judge of Moratuwa. Briefly the Petitioner is complaining, that the 1st and the 2nd Respondent had violated the order of the District Judge by not allowing the Petitioner to access his child. The Counsel for the Respondents submits that the 2nd Respondent is not a party in the original divorce case, hence he cannot be brought into the contempt proceedings before this Court. Further the Counsel submits the 2nd Respondent is a neighbour and has no connection with this case.

Briefly perusing the application, objections and ail documents annexed, I find that the petitioner and

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