1932 Present : Jayewardene A.J.

FERNANDO v. FERNANDO.

IN THE MATTER OF AN APPLICATION FOR WRIT OF habeas corpus

Habeas corpus-Children in custody of mother-Application to withdraw them-Moral conduct of mother-Detrimental to interest of children- Discretion of Court.

A mother may be deprived of the custody of her children where the Court, by reason of her conduct, thinks that it is detrimental to the interests of the children that they should remain in her charge.

THIS was in application for a writ of habeas corpus.

Aelian Pereira (with him N. Gratiaen), for the petitioner.

E. G. P. Jayetilleke (with him F. C. W. van Geyzel), for respondent.

September 12, 1932. JAYEWARDENE A.J.-

This is an application for a writ of habeas corpus by Albert Cyril Fernando, Registrar of Births and Deaths, Maradana, asking for the custody of his two children-a girl named Leila Godiva born in 1919, and a boy named Chandra Adam Bede born in 1921. ,The petitioner is a Sinhalese of the age of 41 years and is practising as a doctor and earning an average net income, according to himself, of about Rs. 7,000 a year. He was married in 1918 to the respondent Zuleika, whose father Mr. Adams, was the bandmaster at one time of the Police Band. He was a Muslim born in Ceylon, his ancestors, according to her, having come from Baluchistan. The respondent's mother was a Burgher lady of Dutch descent, Miss Jansz, a Christian before her marriage. The respondent says that her parents were not orthodox Muslims. Her mother was not in purdah, as Muslim ladies are in Ceylon, but was always the ordinary Burgher lady with European manners. The respondent herself has adopted the ordinary Burgher or European ways of her mother and seems to move about quite freely in all company, male and female, without any sort of restraint whatsoever. She was married to a Muhammadan Bengalee, Mr. Khan, when she was sixteen years of age. She divorced him in three years because she says that his moral behaviour was not very good and he was free with other women. The respondent had been at home, for about three years after the divorce, with her parents, at Dematagoda, when her mother fell ill and the petitioner, the doctor in that quarter, was called in to attend on her. In the result he fell in love with the petitioner, and like King Henry IV of France who thought Paris was well worth a mass, thought her beaux yeux were worth a change of faith. He became a Muslim and married her on July 25, 1918. They lived happily for a few years, and then quarrelled. The marriage was dissolved by tollok under the Muhammadan law before the priest who married them. The respondent in 1925 filed a case claiming maintenance for the children and was awarded Rs. 100, later raised to Rs. 130. In the

mean while the petitioner applied for the custody of the children, and this Court held that as regards the girl, her best interests would be served by allowing her to be in her mother's charge, provided she was sent to Bishop's College, and as regards the boy who was only 4 years old then, it directed that the boy too should be in the mother's charge till he attained the age of 8 years. Thereafter the petitioner was at liberty to make an application for the custody of the boy, if so advised. The boy was also to be educated and the father was to have access to his children at reasonable times. The petitioner made a second application in respect of the boy in 1927, on the ground of his ill-health, but it was refused.

The present application was made in December, 1931, asking for the custody of both children on the ground that it is detrimental to the interests of the children that they should continue to remain in the custody of their mother. All the questions of law and fact have been exhaustively tried and considered. I am indebted to counsel who have conducted this case with great ability and good taste and feeling.

The Muhammadans