1947 Present: Soertsz S. P. J. and Canekeratne J.
 
DE SILVA, Appellant, and DE SILVA, Respondent.
 
S. C. 362-D. C. Colombo, 720 D.

    Husband and wife-Divorce-Custody of child-Religious education of child- Husband's right of control.
 
A father is entitled to control the religious education of his child.
 
APPEAL from a judgment of the District Judge, Colombo.
 
F. A. Hayley. K.C., with H. W. Jayewardene, for the defendant, appellant.-The District Judge has found that the respondent was not influencing the child so as to be antagonistic to the appellant and that the respondent was particularly respecting the wishes of the appellant in the matter of the religious education of the child. The judge further held that the respondent was the most suitable persons to have the custody of the child and that appellant was using the child as an instrument with which to harass the respondent. The Judge also in the course of his judgment made some statements commenting adversely on the conduct of the appellant.
 
Analysis of the evidence shows that neither the findings nor the strictures can be justified in any way. Every single finding on the important questions of fact can be shown to be incorrect.
 
The appellant never gave up his undoubted right to the legal custody of the child. The appellant obtained the divorce on the ground of malicious desertion by the respondent. The award of Mr. W. H. Perera as embodied in the Order of October 13, 1943 referred only to the physical custody, i.e., care and maintenance of the child. Legal custody was always with the appellant. All the relevant documents bear that out. Legal custody is a recognised term for full rights of guardianship See Walter Pereira's Laws of Ceylon (2nd Edition) p. 173 and Vol. 3 Legislative Enactment p. 682.
 
The appellant is particularly anxious to have the child brought up as a Buddhist. The appellant undoubtedly has that right, and the District Judge is clearly wrong in allowing full legal custody to the respondent. See Agar-Ellis v. Lascelles1; Hawksworth cs. Hawksworth 2 : In Re Scanlan 3.
 
C. Thiagalingam with J. Fernandopulle, for the plaintiff respond end.-The findings in the judgment are correct and should not be set aside. Under the Roman-Dutch Law parental power belongs both
 
1 L. R. (1878) 10 Ch. 49.

2 L. R. (1871) 6 Ch. 539.

3 L. R. (1888) 40 Ch. 200.

to the father and mother. See Lee's Introduction to Roman-Dutch Law 1915 Edition p. 32. See also Simleit v. Cuncliffe1. The child may not always be brought up in the religion of his father-Condon v. Vollum 2.
 
F. A. Hayley, K.C., replied.
 
December 11, 1947. CANEKERATNE J.-
 
This is an appeal from an order of the District Judge. The appellant was the husband of the respondent, and the marriage which took place on June 9, 1938 was dissolved by decree absolute on January 17, 1944, on the ground of desertion by the respondent-decree nisi being entered on October 13,1943, There was one child of the marriage, Sriy an Ranjit, born on July 29, 1939. I do not find it necessary to go into the history of these matters, save in order to set out the nature of one or two orders which must be understood before the position can be appreciated. The appellant was a Buddhist, but appears to have been "eclectic in his views ", the respondent was the daughter of a Wesleyan Minister and has always been a practicing Christian. The parties separated about March 25, 1943. The action for the dissolution of the marriage-relief being sought by both parties-was set down for trial on October 11, 1943. The appellant's Counsel, according to the finding of the Judge, made a suggestion on this day about settling the question of alimony (to the respondent) and of custody and education of the child. The amount of alimony payable by the appellant was settled almost immediately, the question of custody including up to what point of time the respondent should have