{"id":236716,"date":"2020-10-04T16:30:41","date_gmt":"2020-10-04T11:00:41","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=236716"},"modified":"2020-10-07T17:32:49","modified_gmt":"2020-10-07T12:02:49","slug":"mother-cannot-be-deprived-of-her-childs-custody-on-the-ground-of-difference-in-faith-court-embarks-on-rights-of-guardian-in-nurture-in-absence-of-father","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2020\/10\/04\/mother-cannot-be-deprived-of-her-childs-custody-on-the-ground-of-difference-in-faith-court-embarks-on-rights-of-guardian-in-nurture-in-absence-of-father\/","title":{"rendered":"Mother cannot be deprived of her child’s custody on the ground of difference in faith; Court embarks on rights of guardian in nurture in absence of father"},"content":{"rendered":"

Lord Campbell, CJ.,<\/strong> while deciding the custody of child allowed the Writ of Habeas Corpus, marking significant observations on \u2018guardian of nurture\u2019 <\/em>in light of settled precedents.<\/p>\n

Brief Facts<\/strong><\/span><\/p>\n

The present case is concerned with the custody of a ten-year-old girl, named, Alicia Race. A writ of habeas corpus<\/em> is filed by the girl\u2019s mother, who is also the guardian for nurture<\/em>, 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.<\/p>\n

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.\u00a0<\/strong><\/p>\n

Arguments <\/strong><\/span><\/p>\n

For the school mistress and the Commissioners, it was argued by O\u2019Malley and Lush, that the wish of the infant must be acknowledged and even if it is assumed that the mother was guardian for nurture, <\/em>the custody sought was for an improper, inconsistent object of bringing up the child in a faith different from that of the deceased parent.<\/p>\n

Issue<\/strong><\/span><\/p>\n

Whether the writ of habeas corpus<\/em> maintainable against the school mistress and the Commissioners?<\/p>\n

Whether rights of guardian in the nurture<\/em> of higher importance than the wishes of the child?<\/p>\n

Decision <\/strong><\/span><\/p>\n

Allowing the writ petition, the Court granted the custody of the minor child to her mother and further cited, \u201cif a guardian, by reason of nurture, delivers the infant to another for instruction, he may afterwards, retake the infant.\u201d <\/em>It also suggested the child continue the school at Hampstead which in the Court\u2019s 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, \u201cthe Court must in each case ascertain whether there was sufficient intelligence by personal examination of the child\u201d<\/em><\/p>\n

Relied\/Referred Precedents and Legislation<\/strong><\/span><\/p>\n