A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

Article 16.1(f)
Marriage and Family Life
Custody and Guardianship
Surya Prakash (Appellant) v Shirley Reshmi Narayan (Respondent)
Civil Appeal No. HBA0001J.99L
High Court <strong>of</strong> Fiji, Lautoka
5 May 2000
Madraiwiwi J
<strong>Law</strong>s and International Instruments Considered
CEDAW 1979;
Constitution <strong>of</strong> Fiji 1997, Sections 3, 22, 43, 43(2);
Convention on the Rights <strong>of</strong> the Child 1989, Articles 3, 9;
Criminal Procedure Code Cap 21;
Magistrates Courts (Civil Jurisdiction) Decree, Sections 2(1)(e), 4(b), 26, 27(2);
Matrimonial Causes Act Cap 51;;
Magistrates Courts Act Cap. 14, Section 27(2);
Maintenance and Affiliation Act. Cap. 52, Sections 3(d), 4(b), 26, 27(2);
Matrimonial Causes Act Cap 51;
Matrimonial Proceeding Act 1960 (UK).
This case considered whether courts have the power to issue “interim” custody
orders under the Maintenance and Affiliation Act [“the Maintenance Act”]. In doing
so, the High Court [“the Court”] considered whether the test <strong>of</strong> ‘the best interests <strong>of</strong>
the child’, articulated in international conventions that protect the rights <strong>of</strong> children,
should be imported into the meaning <strong>of</strong> the Maintenance Act to empower courts to
issue interim custody orders.
Shirley Reshmi Narayan and Surya Prakash separated when their two children,
Sudharsan and Akarshan, were two years and eight months and nine months old
respectively. At the time <strong>of</strong> the separation Akarshan continued to live with the mother
and Sudharsan went to live with his father’s parents. Shirley Reshmi Narayan filed
for maintenance and custody <strong>of</strong> both children. On 7 January 1999, an order was
made granting her interim custody <strong>of</strong> Sudharsan Prakash Sami. Reasonable access
was granted to the father, Surya Prakash.
29
CEDAW
Pacific Islands: Fiji