[IN REVISION.]

1943 Present. Moseley S.P.J. and Wijeyewardene J.

SILVA Applicant, and SILVA Respondent.

D. C. Colombo, 720 (Divorce).

Divorce-Custody of child pending action-Rights of father-Interests of child Application for revision pending appeal-Civil Procedure Code, s. 753.

The Supreme Court has the power to revise an order made by an original Court even where an appeal has been taken against that order.

In such a case the Court will exercise its jurisdiction only in exceptional circumstances and in order to ensure that the decree given in appeal is not rendered nugatory.

The father is entitled to the custody of a child pending divorce proceedings especially where the best interests and safety of the child require that the child should continue to remain in his custody.

THIS was an application to revise an order made by the District Judge, wherein he ordered that the custody pendente lite of a minor child should be granted to the mother (the plaintiff) in a divorce action between the parents.

N. Nadarajah, K.C. (with him A. H. C. de Silva), for plaintiff, respondent, takes a preliminary objection to the hearing of the application on the ground that an appeal had already been taken from the order and the effect of this application being entertained would be to deprive the District Court of the jurisdiction already vested in it under the Code.

E. F. N. Gratiaen (with him H. W. Jayewardene), for defendant, petitioner.-There are exceptional reasons why this application should be entertained. The Supreme Court has the power to revise any order of a lower Court even though an appeal has been lodged. The trial has already been fixed for October 11 and it is unlikely that the appeal would be heard before that date. This being an application for custody pendente lite any delay in hearing the appeal would only render the ultimate order of the Supreme Court nugatory (vide Atukorale v. Samynathan. [18 C. L, Rec. 200.] The interests of a minor child are involved and it is desirable that this matter be disposed of as soon as possible.

The father is the lawful guardian of a child and is ordinarily entitled to the custody; the Court would however consider the interests of the child. In fact, this is the paramount consideration. The Court would not, in a pending suit, deprive the father of the custody merely on account of the natural desire of the mother to have the custody-Cartlidge v. Cartlidge2[(1862) 6 L. T. R. 397.]. The principles regarding custody have been laid down in Ackemon v. Ackemon [S. A. L. R. (1940) C. P. D. 16.] where the South African Courts have held that where the question of custody pendente lite arises the interests of the minor are to be looked to, but not forgetting the rights of a father to custody. In this case the father fears for the safety of his child. It cannot be said that these fears are groundless because the threats and behaviour of the plaintiff indicate that she is not incapable of doing some act which would

endanger the life of the child. Moreover the mother has not satisfied the Court that she can give the child a home suited to one of his upbringing. Frequent changes of custody are also undesirable.

N. Nadarajah, K.C.-The petitioner's proper remedy is by way of appeal. He has filed an appeal but he can move that its hearing be advanced. No such application has been made and in the circumstances the application must be dismissed. Ameen v. Rasheed[ 6 C. L. W. 8.] see also, Ram Sait v. Nadar et al.[ 13 C. L. W. 52.]' The interests of the child are the primary consideration. He is an infant of four and it is in his best interests that he should be restored to the mother-Maasdorp, Vol. I, 125-128; Farmer v. Farmer[ 1 Menzie's 278]. The mother's threats have not been considered as seriously made. The father is in Jaffna and the child is with the father's relations in Galle. It cannot be said that the father has the custody of the