Jayatilleke v. Chandralatha
COURT OF APPEALANANDA GRERO, J.
CA NO. 31/91 (M).
MC KULIYAPITIYA NO. 70745.
DECEMBER 11, 1992.
Maintenance — Application for enhanced maintenance – Maintenance Ordinance,sections 10 and 2.
In an application for enhanced maintenance the scope of the inquiry should belimited to the issue whether there has been a change of circumstances of theparties since the making of the maintenance order. This is what section 10 ofthe Maintenance Ordinance postulates. The “ enhancement inquiry “ should notbe converted into an inquiry under section 2 of the Maintenance Ordinance.
An application under section 10 of the Maintenance Ordinance envisages analteration in the allowance already ordered under section 2 of the said Ordinance,which could be in the form of enhancement of maintenance
APPEAL from order made by the Magistrate of KuliyapitiyaJayatissa Herath for appellant.
Rohan Sahabandu for respondent.
Cur. adv. vuit.
Sri Lanka Law Reports
 1 SriLR.
January 29, 1993.
ANANDA GRERO J.
In this case, the applicant-respondent, the wife of the respondent-appellant made an application to the Magistrate of Kuliyapitiyaclaiming maintenance for herself and the child Thejanamala. On24.8.84, the respondent-appellant appeared before the saidMagistrate, and admitted the marriage and paternity of theaforesaid child.
On 8.2.85, he consented to pay Rs. 400 to the child andRs. 200 to the respondent-applicant as maintenance. She hadagreed to accept the said amount and the learned Magistratemade order directing him to pay Rs. 600 per month as maintenance,to be effective from 1.2.1985.
On 25.8.86, she made an application to Court by way of anaffidavit, praying that the payment of maintenance be enhanced.She had asked Rs. 500 for herself, and Rs. 1,000 for the child. Thematter was fixed for inquiry and after several dates of inquiry, thelearned Magistrate delivered his order on 1.2.91, ordering therespondent-appellant to pay Rs. 500 to the applicant-respondent,and Rs. 1,000 to the child, Thejanamala, who stays with the mother.The said order is to be effective from 1.1.91. Against this order,the respondent-appellant appealed to this Court.
The original or the first application was made by the applicant-respondent under section 2 of the Maintenance Ordinance. Althoughit was fixed for inquiry, the necessity did not arise to go through afull inquiry as the respondent-appellant consented to pay maintenancein a sum of Rs. 400 and Rs. 200 for the child and for the applicant,respectively.
It appears from the brief, that this enhancement of maintenanceinquiry has taken the shape of an inquiry under section 2 of theMaintenance Ordinance, which this Court is of the view, that it isnot necessary to go to that extent. The scope of the inquiry intothe matter of enhancement of payment of maintenance is limited tothe issue whether there has been a change of circumstances of theparties since the making of the maintenance order. (vide section10 of the Maintenance Ordinance). Once an order of maintenance
Jayatilleke v. Chandralatha (Ananda Grero, J.)
is made, a long drawn inquiry is not necessary, and what is necessary,is to find out whether the circumstances of the parties have changedin order either to allow the enhancement application or not.
Of consent, the order for maintenance was made as far back as8.2.85 and there was no necessity to convert the “ enhancementinquiry ° into an inquiry under section 2 of the MaintenanceOrdinance, as could be seen in this case. Section 10 of theMaintenance Ordinance states that on the application of any personreceiving or ordered to pay a monthly allowance under the provisionsof this Ordinance, and on proof of a change in the circumstancesof any person for whose benefit or against whom an order formaintenance has been made under Section 2 the Magistrate mayeither cancel such order or make such alteration in the allowanceordered as he deems fit, provided that the maximum monthly rateunder the said section, be not exceeded.
Thus the limitation of the inquiry to make an alteration in theallowance ordered (i.e. ordered under section 2) is confined, to thequestion whether circumstances have changed, since the making ofthe maintenance order. These circumstances, refer to the partiesconcerned. At an inquiry for enhancement of payment of maintenance,the applicant has to establish that her circumstances have changed,and as such it has now become necessary to ask for suchenhancement. Well the respondent against whom the order formaintenance is in force, could satisfy Court that his financialresources are such that he is not in a position to pay more thanwhat has already been ordered ; or that the applicant is now earningand therefore the necessity does not arise to get an enhancementorder in her favour. Likewise certain other grounds could be shownby either party for and against the alteration in the allowancealready made under section 2 of the Maintenance Ordinance. Butthat does not mean that this 1 Limited inquiry 1 should be extendedto an inquiry under section 2 of the Mainenance Ordinance. As earlierstated, that it appears that the enhancement inquiry in this case hasgone beyond the limits of such inquiry and got converted somewhatinto an inquiry under section 2 of the Maintenance Ordinance.
Although the inquiry in this case has exceeded the scope ofthe inquiry, yet it appears from the order of the learned Magistratethat he had addressed his mind to the main issue whether the
Sri Lanka Law Reports
 1 SriLR.
circumstance of the parties, i.e. the applicant-respondent, her child,and the respondent-appellant have changed which would warrant analteration (i.e. an enhancement) in the allowance ordered by Courton 8.2.85.
This Court carefully considered the written submissions of thelearned Counsel for the respondent-appellant, and is of the view, thatmost of these submissions are relevant when the Magistrate makesan order under section 2 of the Maintenance Ordinance, and not reallyrelevant to the question of enhancement or alteration of the paymentof maintenance. Submissions made by him with regard to thereduction of the income of the respondent-appellant are relevant tothe issue in question. The submission with regard to the questionof1 means 1 of the applicant-respondent is also relevant to the issuebefore the Magistrate.
In his submissions the learned Counsel for the respondent-appellant has stated as follows:-
“ The learned Magistrate has failed to consider whether thedaughter who is living with the applicant-respondent is wilfullyrefusing to go back to the father without any justifiable cause andwhom the respondent claims she could maintain the child on herown " (Vide page 12 of the written submissions).
At this inquiry, the child who was 17 years old at that time didnot give evidence. There is no evidence before Court, that she herselfrefused to go with the respondent-appellant (her father). No doubtthe respondent-appellant in his evidence had stated that if she wasprepared to come back he was willing to maintain her. The applicant-respondent under cross examination has admitted that he claimedthe custody of the child. But there is no clear evidence to show when,where, and under what circumstances that such custody was claimedby the respondent-appellant. It was suggested to her by the learnedCounsel for the respondent-appellant that he claimed the custody ofthe child, in the divorce case between the parties, but that actionhas been dismissed. There was no evidence before Court to showthat the child was wilfully refusing to go back to the custody of herfather. At the time of this inquiry, the child was in the custody ofthe mother, and the Magistrate has to consider whether thecircumstances of the child have changed so as to allow the application
Jayatilleke v. Chandralatha (Ananda Grero, J.)
of the applicant-respondent, and nothing beyond that. Althoughthe learned Counsel in his submission has stated that theapplicant-respondent claimed that she could maintain the childon her own, this Court cannot agree with him. Under crossexamination, she has specifically stated that she could notmaintain her with her maintenance, (vide proceedings dated 8.6.90,at page 6). In the circumstances, this Court is unable to agree withthe contention of the learned Counsel, that the learned Magistratehas failed to consider the wilful refusal on the part of the child togo back with the respondent-appellant, and the mother's (applicant's)claim to maintain her child.
Could it be said, that the applicant-respondent satisfied thelearned Magistrate, that the circumstances of both of them (i.e. thechild and herself) have changed? She had given evidence at theinquiry, and her evidence reveals that the child was 17 years oldat that time and she was attending the Madya Maha Vidyalaya ofKuliyapitiya. The daughter's requirements are many, and being aschool going child she has to spend a lot. According to her ; shehas no means of income and the child too does not have income.On the other hand, she has stated that the respondent-appellantearns more than Rs. 10,000 per month and owns rubber lands andpetrol filling station. Further, according to her, he owns paddy landsand eight acres of coconut land. Thus taking her evidence as a whole,it is manifest that he is a man of means.
The evidence of the respondent-appellant's Tax Accountant, revealsthat his net income for the years 1985/1986 was Rs. 40,750. Thenfor 1987/1988 it was Rs. 98,570 and for 1988/1989 the income wasRs. 111,587. Thus it could be clearly seen that his income has beenincreased steadily over the years.
The respondent-appellant too had given evidence at this inquiryand admitted that he pays income tax and Business Turnover Tax.The fact that he pays such taxes shows that he earns an incomewhich is taxable, and such a person could be considered as onewho has much means. No doubt he maintains two of his childrenwho are with him. He too has various other commitments. But topay a sum of Rs. 1500 for a month as maintenance for his wifeand child as ordered by the learned Magistrate could not be treatedas a heavy burden which is difficult for him to carry. He who agreed
Sri Lanka Law Reports
 1 Sri LR.
to pay Rs. 600 as maintenance was ordered by the learned Magistrateto pay another Rs. 900 more for a month. The order of the learnedMagistrate amply reveals that he was satisfied that the respondent-appellant was in a position to pay such enhanced amount. He hadtaken into consideration the change of circumstances of the applicantand her child, and also the means of both parties, and finally cameto the finding that the allowance which is paid by the respondent-appellant as maintenance should be enhanced. Accordingly heordered that Rs. 500 and Rs. 1,000 should be paid to the applicant-respondent and the child, respectively. This Court is of the view, thaton the basis of the evidence placed before the learned Magistrateabout the change of circumstances of the applicant and the child onthe one hand, and the position of the respondent-appellant withregard to his capability of paying the enhanced amount and hiscircumstances on the other hand, the finding of the Magistrateis correct and justifiable.
Learned Counsel for the respondent-appellant contended that hewas not receiving an income from the paddy and coconut lands dueto severe drought. But it should be stated that apart from the incomehe gets from the said lands, he has other sources of income.Therefore, even though he may not get an income from such paddyand cocount lands (that also believing only what he has said) yet,it appears from the evidence led in this case, that he gets acomfortable income to meet his financial obligations including thepayment of the allowance of maintenance to the applicant and thechild.
This Court considered the submissions made by both Counselwith regard to the respondent-appellant's income and sources ofincome. Also this Court considered the submission made by thelearned Counsel for the applicant-respondent about her means ofincome. It appears from her evidence that she sews for othersand gets an income of Rs. 25 to Rs. 30 for a week and during somemonths she gets an income of Rs. 75 to Rs. 100. During some monthsshe gets no income. In answer to Court she had stated that becauseof the fact that she could not leave her daugher at home, she didnot go in search of a job. But the fact remains, that being at homeshe is engaged in sewing and earning a little income. It appears fromthe proceedings dated 8.6.90 (vide page 14 of the original caserecord) that the learned Magistrate had addressed his mind to find
Nirmal Paper Converters (Pvt) Ltd v. Sri Lanka Ports Authority
out the 'means' of the applicant. That may be the reason why hequestioned the applicant about her failure to find out a job evenafter the respondent-appellant filed an action for divorce. Althoughthe learned Magistrate has not discussed at length about themeans and circumstances of the applicant and the child in his order,yet it cannot be held that he totally failed to address his mind withregard to these two aspects (means and circumstances) as statedin section 2 of the Maintenance (Amendment) Act No. 19 of 1972.
On a consideration of the entire evidence led at the inquiry andthe order of the learned Magistrate, this Court is unable toagree with the contention of the learned Counsel for the respondent-appellant, that the Magistrate had come to an erroneous finding bothon the question of law and facts in this case.
For the above reasons, the appeal of the respondent-appellantis dismissed with costs of the appeal fixed at Rs. 500. Hence theorder of the learned Magistrate dated 17.8.90 is hereby affirmed.
JAYATILLEKE v. CHANDRALATHA