Lord Campbell, CJ., while deciding the custody of child allowed the Writ of Habeas Corpus, marking significant observations on ‘guardian of nurture’ in light of settled precedents.

Brief Facts

The present case is concerned with the custody of a ten-year-old girl, named, Alicia Race. A writ of habeas corpus is filed by the girl’s mother, who is also the guardian for nurture, the father being dead and there being no testamentary guardian. It is to be noted that the deceased father was a Protestant and the mother is a Roman Catholic by faith, practice and belief. No directions by the deceased father were given by testament as to the manner in which the children may be brought up. Further, the child whose custody is sought reads at a Catholic school in Hampstead.

After the father of the girl martyred in the service of the nation, the family was selected as objects of the Royal Patriotic Fund, wherein allowances were given for necessities including education. During his lifetime, the children were sent to Protestant school, visited their churches with all concurrence of the mother. However, in 1856, she sought to take away the children for the purpose of having them educated at Roman Catholics. The Commissioners of the Royal Patriotic Fund, upon consideration of the application called in the children to know their wishes. While the boy agreed and returned to his mother, the girl expressed great reluctance stating that, as much as she loves her mother, she would not go to a school where idolatrous worship is preached. Subsequently, the Commissioners and Miss Clarke, the school mistress, refused to give the girl to her mother. Hence, the present writ is moved. 


For the school mistress and the Commissioners, it was argued by O’Malley and Lush, that the wish of the infant must be acknowledged and even if it is assumed that the mother was guardian for nurture, the custody sought was for an improper, inconsistent object of bringing up the child in a faith different from that of the deceased parent.


Whether the writ of habeas corpus maintainable against the school mistress and the Commissioners?

Whether rights of guardian in the nurture of higher importance than the wishes of the child?


Allowing the writ petition, the Court granted the custody of the minor child to her mother and further cited, “if a guardian, by reason of nurture, delivers the infant to another for instruction, he may afterwards, retake the infant.” It also suggested the child continue the school at Hampstead which in the Court’s opinion was admirably conducted but left the sole discretion on the mother to decide. Apropos, the wishes of child as put forth by the counsel for respondents, the Court making a comparison between wishes of child and rights of a guardian by nurture remarked that if such contention is to be accepted, “the Court must in each case ascertain whether there was sufficient intelligence by personal examination of the child”

Relied/Referred Precedents and Legislation

  • Radcliff’s case, 3 Rep. 37 a. 38 b., guardianship for nurture continues till the child attains the age of fourteen. As per the general rule, if a child within the age of seven is brought before the Court in a case of custody to guardian, it is bound to deliver the child, at once but if the age vary between seven to fourteen, the Court may examine and ascertain whether the child is competent to make a choice in a given situation, more clearly the ‘mental capacity’ of the child.
  • Serjeant Talfourd’s Act, 2&3 Vict. C. 54, s.1, where infant under the age of seven and in the sole custody or control of father, the Lord Chancellor or the Master of the Rolls may make an order that such infant be delivered to and remain in the custody of the mother until they attain the age of seven years. Calling it a peculiar age of nurture, the Court recognized it as entirely different from the guardianship for nurture which belongs to the father in his lifetime, even from the birth of the child.
  • Rex v. De Manneville, 5 East, 221, a writ of habeas corpus is an appropriate remedy in the cases where the child is below the age of seven.
  • Rex v. Johnson, 1 Str. 579, custody of a nine year old girl was given to her guardian (mother) from her testamentary guardian (nurse).
  • Rex v. Smith, 2 Str. 982, overruled, the previous case by allowing a boy of few months lesser than fourteen to reside with his aunt against the habeas corpus petition brought by his father.
  • Rex v. Greenhill, & E. 624, marks the settling of issue on a general rule wherein if a person within the age of twenty one years is brought before the Court, and possess the ability to exercise his choice, the Court shall leave on the individual to decide where he wishes to go but where he is incapable by any reason of making such choice, custody shall be decided by the Court.
  • In re Lloyd, mother of an illegitimate child was denied custody of a child between eleven and twelve years by relying on Rex v. Hopkins, wherein it was held, “Only while an illegitimate child is under seven that the Courts will interfere to protect the custody of the mother”
  • The instant Court also referred to several other decisions wherein despite a Parsee man adopted Christianity, the custody of the child was given to him, who was detained by the Parsee family. Moreover, in another case, the Court ordered a Hindu boy of twelve years, who professed to have embraced Christianity to be delivered to his father, who adhered to the Hindu religion.
  • In Villareal v. Mellish, 2 Swanet. 533 and Talbot v. The Earl of Shrewsbury, 4 Myl. & Cr. 672, the Court observed that it finds no distinction between different religions and will not interfere with the discretion of guardians as to the faith in which they educate their wards. In re Arabella Frances North, 11 Jurist 7, the Court held that the ward must invariably be educated in the religion of the father.

 [Queen v. Clarke, 119 ER 1217 : (1857) 7 EL & BL 186]

Interesting the Supreme Court of India followed the dictum laid down in this judgment to grant custody of a minor illegitimate child to her mother in Gohar Begam v. Suggi, AIR 1960 SC 93 : 1960 Cri LJ 164


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