1961 Present: Sansoni, J.

A. D. WERAGODA, Petitioner, and R. WERAGODA and another,
Respondents

S. C. 320/60-In the matter of an Application for a writ of Habeas Corpus
 to produce the body of Master Veraj  Sharm  Weragoda

Habeas corpus-Custody of infant-Rights of mother as against father-Courts 'Ordinance s. 45 (a) (b)-Effect of words " the body of any person to be dealt with according to law".

In an application for a Writ of habeas corpus made by a mother for the custody of her 9 1/2 year old son who was, at the time of the application, in the custody of his father-

Held, (i) that the mere fact that, at the time of the application, the boy" was in the custody of his natural guardian was not a bar to the application. In such a case, section 45 (a) of the Courts Ordinance is applicable.

(ii) that, in a case like the present one, " the Court will decide who is to have the custody of the child after taking into account all the factors affecting the case and after giving due effect to all presumptions and counter-presumptions that may apply, but bearing in mind the paramount consideration that the child's welfare is the matter that the Court is there to safeguard. The rights of the father will prevail if they are not displaced by considerations relating to the welfare of the child, for a petitioner who seeks to displace those rights must make out his or her case ".

APPLICATION for a writ habeas corpus.

                   Colvin R. de Silva, with H. D. Tambiah and K. Palakidnar, for the Petitioner.

                   H. W. Jayewardene, Q.C., with R. de Silva and L. C. Seneviratne, for the 1st Respondent.

Cur. adv. vult.

March 29, 1961. SANSONI, J.-

This is a petition by a mother in which she asks for the custody of her son who is now 9 1/2 years old. The boy is now with his father, the 1st respondent. The parties were married on 19th October, 1951, and the child was born on 11th September, 1952. The Magistrate who was asked to inquire into the petition and report to this Court has recommended that the petitioner should be given the custody of the child.

Mr. Jayewardene, who appeared for the 1st respondent, took the objection that no writ of habeas corpus lies in this case because the father is entitled to the custody of his child, and the child being therefore in lawful custody the writ cannot be issued, since the writ only lies where a person is " illegally or improperly detained in public or private custody." Those are words taken from section 45 (6) of the Courts Ordinance (Cap. 6); but section 45(a) is in much wider terms, and enables the writ to be issued to bring up " the body of any person to be dealt with according to law". Since the matter was argued at some length, I think I ought to deal with this question first.

It was decided in Gooneratnayaka v. Clayton 1 [ 1 (1929) 31 N. L. R. 132. ]that the principles upon which such a writ should be issued should be the same as those which regulate the issue of the writ in England. Upon looking into the history of the matter in England, I find that prior to the Judicature Act of 1873 the writ was issued either by the Court of King's Bench, where the common law was applied, or by the Court of Chancery, which exercised equity jurisdiction. Speaking of the latter jurisdiction, Lord Cottenham L.C. in the case of In re Spence 2 [  2 2 Phillips 247.]said: "Courts of law interfere by a habeas for the protection of the person of anybody who is suggested to be improperly detained. This Court interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patriae, and the exercise of which is delegated to the Great Seal."

After the Judicature Act, proceedings were instituted in the Queen's Bench Division, and the Judges exercised the paternal jurisdiction which was vested in the Court of Chancery as being the guardian of all infants. The Court had the