Pichard v. Anulaicathie
1971Present: de Kretser, J.
A. A. RICHARD, Appellant, and G. D. ANULAWATHIE, RespondentiS. C. 53/70—M. G. Colombo South, 97365/AMaintenance Ordinance (Cap. 01)—Section 3—Order Jot maintenance of wife—Condition3 necessary—Lack of bona fides in husband’s offer to maintain wife—■ Whether it is a ground per se to order maintenance.
AVhero a husband offers to maintain his wife, the only grounds on which homay nevertheless bo ordered to pay maintenance under section 3 of theMaintenance Orilinnnco are that ho is living in adultery, or that Ho hashabitually treated his wife with cruelty. An order for maintenance of the wifecannot be mndo merely because, in the opinion of the Court, the offer of thehusband t-o maintain his wife' is not made bona fide.
Appeal from a judgment of the Magistrate’s Court, Colombo South.
Elmo VannUamby, with Mangala Moonasinghc and K. Balachandran,for tho defendant-appellant.
Applicant-respondent absent and unrepresented.
Cur. adv. vult.
DE KRETSER, J.—Richard v- Anulaiccthie
August 10, 1071. DE KHETSER, J.
The Magistrate of Colombo South, Mr. C. E. Mcndis, allowed theapplication made that the Defendant should be ordered to payMaintenance for his wife, the Applicant and his three children. TheDefendant lias appealed. At the ]tearing of the Appeal the correctnessof the Order that the Defendant should pay 11s. 25/- a month for eachof the children was not canvassed, but Counsel for the Appellant relyingon Section 3 of the Maintenance Ordinance has urged that the Orderthat the Defendant should pay Rs. 25/- for his wife a month cannotstand in view of the fact that site had refused the offer Jie had made tomaintain her on condition that she lived with him for there was noevidence of his living in adultery or that he had habitually treated hiswife with cruelty which alone would justify the Magistrate making anorder in her favour despite the offer made.
As far back as 1S00 Withers, J. in tiro Case reported in the SupremoCourt decisions of 1S99 (Koch’s Reports) at Page 9 pointed out that thegrounds set out in the Ordinance which arc sufficient to entitle an applicantto an allowance notwithstanding the husband's offer to maintain hiswife if she would live with him arc adultery and habitual cruelty. Wendt,J. in 1905 in tJie Case of A/to v. Anthony Annavirnle 1 3 Appeal CourtReports 19 pointed out that where such an offer is made the Magistratehas to be satisfied that the wife’s refusal to live with her husband isjustified by the fact of his living in adultery or by the fact of his havinghabitually treated his wife with cruelty.
In the instant ease the Magistrate lias not made a finding on eitherof these alternatives. He is of Hie view that the offer was not madebona fide. He comes to that conclusion after tlie Inquiry was overand in view of what had come out in evidence in regard to things thathad happened after the couple had parted. He says “ no reasonableman however well meaning or generous lie might be would make suchan offer to a woman who he: lias said in evidence was not a fit and properperson to have custody of his children and in regard to whose characterlie had made certain allegations at (lie Trial. Suffice to say in regardto bona tides that tlie Applicant wife who is the person most concernedand in the best position to judge did not refuse (lie offer alleging it wasnot bona fide but because she felt “ humiliated ” over events that hadhappened after they had separated. The true cause of that separationappears to bo quarrels over property. Tlirre was no allegation at anytime that the Defendant was living in adultery and the evidence docsnot cstablish-that the Defendant treated applicant with habitual crueltyduring the time they lived together. In the result I set aside thatportion of the Order directing the husband to pay the wife maintenanceat Es. 25/- a month. There will be no costs for the Appeal.
Appeal partly allowed.
(190S) 3 A. C. R. 19.
A. A. RICHARD, Appellant, and G. D. ANULAWATHIE, Respondent