IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA0009 OF 2004
(Suva Matrimonial Case No. 183 of 2003)

Between:

ASHWANT PRASAD HARDEO
f/n Amrit Prasad Hardeo
Appellant/Petitioner

and

SASHI LATA
f/n Subash Chand
Respondent

and

RATNESH KUMAR SHARMA
f/n Shiu Ram
Co-Respondent

Mr. R. P. Singh for the Appellant
Ms. P Narayan for the Respondent

Date of judgment: 4 November 2005

JUDGMENT
(on custody of child)

This is an appeal by Ashwant Prasad Hardeo (Appellant/Petitioner) against the learned Magistrate’s order of 5 February 2004 granting custody of the female child Supriya Prasad born on 20 September 1998 to the Respondent Sashi Lata.

The grounds of appeal are:

1.	The Learned Trial Magistrate erred in Law and in Fact in not allowing the Appellant to call evidence in respect of his answer to the claim and the witnesses who were in a position to release the information about the background of the Co-Respondent.

2.	The Learned Trial Magistrate erred in Law and in Fact in not hearing the case completely.

3.	The Learned Magistrate erred in Law and in Fact in giving judgment in favour of the Respondent by only considering the Welfare Report written in favour of the Respondent and failing to consider the Welfare Report written in favour of the Appellant.

4.	The Learned Magistrate erred in Law and in Fact in not considering the welfare of the child when the Co-Respondent already admitted adultery on 8th January 2004.

5.	The Learned Magistrate erred in Law and in Fact in holding that the child was 4 years old when she was five and a half years old.

6.	The Learned Magistrate erred in Law and in Fact in giving judgment on 5th February 2004 when the case was listed for mention only.

Counsel appeared before me and presented their arguments. They also filed written submissions for Court’s consideration.

Background facts

Very briefly, the background facts are that on 5 February 2004 on a petition for dissolution of marriage the learned Magistrate made an order granting the custody of the said child to the respondent with reasonable access to the appellant/petitioner on the following basis:

(a)	the social welfare report by Ana Tagivatatini stated that the child was happy to stay with the mother;

(b)	the child was comfortable in the present surrounding i.e. living with the mother and her partner; and

(c)	it would be detrimental to the child to remove her from a comfortable surrounding to which she has gotten used to.

The marriage was dissolved on 8 January 2004. Both the Respondent and Co-Respondent admitted the allegation of adultery.

The issue

The main issue in this appeal is whether the Magistrate was right in law and in fact in granting custody to the Respondent.

Consideration of the appeal

The appellant has filed quite a few grounds but I find that most of them are devoid of merits.

As I said the main ground is that in all the circumstances of this case the custody of the child should not have been granted to the respondent who in view of the appellant is not a fit and proper person to take care of the child having committed adultery with the Co-Respondent.

It is the appellant’s submission that although he has the interim access on Saturdays from 10 a.m. to 2 p.m. and continues to do so, he has appealed to this Court because he is ‘not happy with the custody being given to the mother’ as he maintains, inter alia, that the ‘mother failed to give motherly love and take proper care of the child’.

The learned counsel for the appellant submits that the issue before this court is ‘to decide the custody of the child and while doing so it should consider the best interest of the child’.

I disagree with part of that statement. The issue is as I have already stated. It was the Magistrate who had to decide custody bearing in mind the interests of the child which is paramount.

According to the appellant’s submission most of his dissatisfaction have come about after the making of the custody Order and this is admitted by him.

The gist of the submission in response is that the learned Magistrate had the benefit of the Social Welfare Officer’s Report on the child and the Court acted on it exercising its discretion. There was no need to call oral evidence from the parties to determine the issue of custody.

Counsel for the respondent further submitted that bearing in mind the interests of the child the Magistrate made the order granting custody to the respondent. She says that the question of respondent’s adulterous relationship ‘does not prevent the respondent from being a better person to look after the interest of the child’.

I have given careful consideration to the submissions made by counsel on behalf of their respective parties.

It must be remembered that this Court is sitting as an appellate court to decide whether the learned Magistrate made an error or was wrong in granting custody of the child of tender age to the mother the respondent despite her adulterous association with the Co-respondent.

One has to consider whether the Magistrate was wrong in principle in doing so. The answer to that is in the negative bearing in mind the facts of this case.

In matters of custody the Magistrate has to exercise his discretion and this exercise will rarely be interfered with by the appellate Court unless wrong principles have been applied or there was some glaring factual error on the face of the Record.

I must commend His Worship Mr. V. Nadakuitavuki for so ably handling the situation in the face of ‘two diametrically opposed’ Social Welfare Reports when he had to decide whom to grant the custody. I was in an identical situation some 30 years ago as a Magistrate in the Domestic Court (as it was then called).

The Magistrate had painstakingly analyzed the situation and arrived at a decision with full reasons.

I cannot find anything wrong with his reasoning and this Court is reluctant to interfere with his Order.

The law

There is no law that an adulterous woman cannot be given custody of a child. Each case had to be looked at on its own merits. A person has to be a fit and proper person. The Fiji case of In Re Sudamma ([1932] 3 FLR 147) was referred to in the submission of the appellant. That was the case of an adulterous mother but the custody of the three year old boy was granted to the father whom the Court regarded a fit person to care for the child based on the facts of that case considering the welfare of the child.

The appellant has in this appeal complained mostly about matters which arose after the making of the custody Order.

In these circumstances I would have thought that the proper course was for him to apply in the Magistrate’s Court (now Family Court) for a variation of the Order.

This course of applying for variation is still open to the appellant particularly when one reads carefully the Magistrate’s Ruling on custody. He Ruled, that ‘the Social Welfare Officer, Ms Tagivakatini to pay home visits when available, and monitor the little child’s welfare. Any adverse report received by the court this Order shall be revoked forthwith’.

Counsel for the appellant cited the very useful Fiji Court of Appeal case of Rajendra Nath s/o Brij Nath and Madhur Lata d/o Ram Sewak which gives guidance for Magistrates faced with the difficult task of deciding custody of children. This case was remitted to the magistrate for re-hearing de novo because proper reasons were not given for the magistrate’s recommendation for custody and it was inadequately dealt with on the aspect of custody. The Appeal Court also gave certain directions to abide by for the re-hearing.

In Rajendra Nath (supra) the Court said that in custody cases ‘the custody of a child is never immutably fixed. Custody can in a proper case be varied upon proof of change of circumstances’.

At page 10 of the judgment in Rajendra Nath are set out ‘points of practice’ to be observed ‘as a guide in the generality of custody cases’ which I suggest should be read as it would be useful when considering custody.

While discussing the principles involved in dealing with custody the following extracts from the book Family Law by Percy Ernest Joske in Chapter 6 at p66 under the caption ‘Welfare and Custody of Children’ are worth bearing in mind: 

At page 71 it is stated:

‘Although common law paid considerable attention to what was called the natural right of the father as guardian of his children, his so-called right was considerably curtailed by the rule of equity that questions in relation to children should be decided solely in accordance with their welfare or in other words that the dominant matter for consideration was the welfare of the children and the rule of equity was subsequently given the force of statute. The effect was that consideration was no longer given to any so-called right of the father as a positive right, but in determining what would be best for the welfare of the children, the benefits accruing to them by their association with him, are to be duly weighed. In determining whether he should be given an order for their custody the test is not what evidence is there that such an order would result in serious injury to them, but what in the particular case would be best for their welfare in the fullest sense of that word.’

It is further stated at p73:

‘In the case of children of tender years, particularly when they have always been in their mother’s care, it will generally be considered best for their welfare that they should remain with their mother. Consequently, in the case of a very young child the mother may be given custody, notwithstanding that she is to blame for the break up of the marriage and the father is in no way responsible for it. Where the mother of a girl of tender years openly lives in adultery and has no immediate prospects of marriage, while the father is well able to look after the child and was not the party responsible for the break up of the marriage, he has been granted custody. The mother has been given custody of a young boy where she intends, as soon as she is free, to marry the man with whom she is living, but it may be made a condition of giving her custody that she does not live in the same house as her paramour prior to their marriage. The younger the child, the greater the need for a mother’s care. There is no principle that at a particular age the father is more suitable to have the custody than the mother, but the question is always one as to the welfare of the child and the court, in considering the welfare of the child, takes into account the whole background of the child’s life and the importance of his having the benefit of his father’s influence as he gets older.’

Conclusion

To conclude, after reading the Record of this case and after hearing both counsel, bearing in mind the fact that the Magistrate gave a painstaking Ruling with comprehensive reasons, the appellant does not succeed on any of his grounds of appeal.

In view of the appellant’s complaints of matters pertaining to the care of the child after the order, it will be in the best interests of the child that the custody order be reviewed. Evidently, as envisaged in the order there is no Report to Court as to how the child is being treated by the mother.

The Court will not interfere with the Magistrate’s exercise of discretion in granting access as it has not been exercised wrongly. The Court will not reverse the order because the Magistrate has not acted capriciously, or applied a wrong principle, or overlooked vital facts or is plainly wrong.

Therefore the appeal is dismissed with liberty to the appellant to apply for a variation of the order showing changed circumstances, if any, as an order for custody or access may be discharged or varied at any time. Each party bear his or her own costs of the appeal.

D. Pathik
Judge
At Suva
4 November 2005