Kalu V. Silva, T.H. Et Al.,

1947 Present; Nagalingam A.J.

KALU, Petitioner, and T. H. SILVA et al., Respondents.

S. C. Petition No. 849.

Minor-Custody of illegitimate child-Rights of maternal grandmother and father in Kandyan Law and Roman-Dutch Law-Habeas Corpus.

In the absence of authority in the Kandyan law which would enable the grandmother to claim preference over the father of an illegitimate child in regard to its custody-

Held, that the Roman-Dutch law was applicable and that, accordingly, the father of the illegitimate child had no right to the custody of the child as against the grandmother on the maternal side.

APPLICATION for a writ of Habeas Corpus asking for the custody of a Kandyan illegitimate child.

S. R. Wijayatilake, for the petitioner.

L. A. Rajapakse, K.C. (with him B. Senaratne), for the 1st respondent.

February 5, 1947. NAGALINGAM A.J.-

Having heard counsel I see no reason to differ from the view taken by the learned Magistrate in making his recommendation to this Court. Mr. Rajapakse contended that there was nothing in the Kandyan law which would enable the grandmother to claim preference over the father of an illegitimate child in regard to its custody. Mr. Wijayatilake too was unable to cite any Kandyan authority on the point. If this position be correct, the Roman-Dutch law as being the common law of the land would be applicable and under the Roman-Dutch Law the father of an illegitimate child certainly has no right as against the grandmother on the maternal side.

The learned Magistrate, I find, has passed certain strictures in regard to the conduct of the first respondent, Silva. Having given my best consideration to the question, notwithstanding the able arguments of learned, counsel, I cannot bring myself to dissociate from the observations which the learned Magistrate I think has quite properly made.

I direct that the minor be restored to the custody of the petitioner. Let the papers be forwarded to the Magistrate, Matale, for necessary action and report.

Application allowed.

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