NEW LAW REPORTS OF CEYLONVOLUME XL.1938
Present: de Kretser J.
ANNAPILLAI v. SARAVANAMUTTU.
118—P. C. Jaffna, 20,836.
Maintenance—Neglect to maintain children—Application by grandmother.—
children by first marriage—Tesawalarpai—Ordinance No. 1 of 1911.
ss. 39 and 40.
In an application for maintenance under section 3 of the°MaintenanceOrdinance,. neglect to maintain means such inadequate maintenanceas to be in reality no maintenance at all.
Under the Tesawalamai a maternal grandmother has no absolute rightto the custody of her grandchildren when the father contracts a secondmarriage,~where the children are not of tender yearn and the father iswilling to maintain them.
Where the father is not fit to be entrusted with the custody of thechildren he would be liable for their maintenance.
Quaere, whether section 11 of the Tesawalamai Code is not impliedlyrepealed by sections 39 and 40 of Ordinance No. 1 of 1911 ?
HIS was an application for maintenance under section 3 of the
Maintenance Ordinance, against the defendant in respect, of his
children by the first bed. The defendant’s first wife died in 1928. Atthat time he – was employed abroad and his children stayed with theirgrandmother, the applicant, who maintained them. He married again in1930 and returned to the Island in 1935. The children then went to livewith the defendant. In 1937 the children left the defendant and thegrandmother rnade the present application alleging that the defendantfailed and neglected to maintain them. The Police Magistrate orderedthe defendant to pay maintenance at the rate of Rs. 30 per mensem.
N. Nadarajah (with him H. W. Tambiah), for defendant, appellant.—Theappellant has not refused or neglected to maintain the children. Thechildren left of their own accord. The appellant maintained themand is still willing to maintain them. Section 3 of Ordinance No. 19 of1889 only condemns a father who neglects to maintain his child. Afather cannot be asked to pay maintenance when he is prepared to mam-tain the children (Fernando v. Fernando ’). No cruelty has been proved.
Section 11 of the old Tesawalamai Code says that on remarriage .a husband may hand over the custody of the child and also the propertyto the maternal grandmother. Sections 39 and 40 of Ordinance No. 1of 1911 state that on the death of a spouse the surviving spouse has lifeinterest and hence he is under no obligation to hand over the property.Sections 39 and 40 of Ordinance No. 1 of 1911 are contradictory to theprovision of section 11 of the old Tesawalamai Code and hence section 11
i 9 C. L. V. 97.
2DE KRETSER J.—Annapillai v. Saravanamuttu.
of the old Code is impliedly repealed (see section 2 of Ordinance No. 1 of1911). The case relied on by the Magistrate (Thevanapillai v. Ponniah1)followed Kanapatkipillai v. Sivak.oluv.thu* which interpreted section 11of the old Tesawalamai Code. Since this section is impliedly repealedthe decisions based on it are not binding. Even if the grandmother isentitled to the custody under the Tesawalamai she cannot claim mainte-nance. The Maintenance Ordinance only has to be looked into. Only ifthere is a refusal or neglect to maintain, the father can be condemned.
L. A. Rajapdkse, ’ for applicant, respondent.—There is sufficientevidence to justify a finding that- the defendant has neglected to maintainhis children within the meaning of section 3 of the Maintenance Ordinance.They are compelled to run away owing to their cruel treatment.
Ordinance No. 1 of-1911. deals with matters of property and inheritance.
It has nothing to do with matters regarding the custody of children.
Sections 39 and 40 of that Ordinance refer to the rights of a survivingspouse with regard to his minor child’s property as long as a secondmarriage is not contemplated. That is consistent with paragraph 1 ofsection 11 of the Tesawalamai.
What is to happen with regard to the custody of the children and theirproperty in case the surviving spouse remarries is not dealt with there.The old law under section 11 of the Tesawalamai still holds good.(Kanapathipillai v. Sivakolunthu (supra).)
Here, the father who has remarried has treated his children so cruellythat he is unfit to be entrusted with them. The grandmother who is arecognized guardian is entitled to claim maintenance for them from thefather. The father is still in possession of their property. (Thevanapillaiv. Ponniah (supra).)-
Cur. adv. vult.
May 18, 1938. de Kretser J.—
The appellant has been condemned to pay Rs. 15 a month for eachof two of his daughters who are with their grandmother, the applicant.
The appellant’s first wife died in 1928. At that time he was employedin the Federated Malay States.
His daughters stayed with their grandmother and the petitionermaintained them.
He married a second time in 1930 and returned to the Island in 1935.The children then went to live with their father. The appellant adoptedone Saravanamuttu Muttucumaru, who gave evidence in this case andgave his age as 21 years. He is a vernacular pupil teacher. He leftthe appellant’s house in August, 1937. In his evidence he did not statehis reason for leaving and made no allegation against the appellant.The Magistrate, however, finds that he left “ because he could not beafthe treatment he received ”.
Shortly after the adopted son left the two girls went away ondifferent dates.
The grandmother then sued for maintenance alleging that the appellantearned Rs. 100 a month. She made her claim under section 3 of theOrdinance No. 19 of 1889. It is this Ordinance that must decide herclaim. Section 3 only condemns a father to pay maintenance if he> 17 N. L. R. #37.' X# H. L- R- #84.
DE KRETSER J.—AnnapiUai v. Saravanamuttu.
neglects or refuses to maintain his child and it is upon proof of.suchneglect or refusal that a Police Magistrate may order maintenance.The applicant alleged a failure and neglect on the appellant’s part tomaintain his daughters but she gave no evidence at the trial.
It is dear from the elder girl’s evidence that it is her uncle and heradopted brother who are at the- back of the claim for maintenance.
The applicant herself is an old woman having no income of her ownand living with her daughter.
On October 21, 1937, it was stated that the applicant was the grand-mother of the children and that the respondent was married again.The reference probably was to section 11 of the Tesawalamai. Thedefendant’s Counsel cited the case of Thevanapillai v. Ponnidh
The appellant undertook “ to file a list of acquired property andjewellery received. ”
The case now began to go off the rails.
On the appointed day the list of property was filed. The appellanthad previously offered to give “ the property ” to the children.
At this stage, that is over a month after the application was firstmade and after four appearances in Court, all the applicant stated wasthat the appellant was “ not a fit person to take the children also“ the children are not treated properly ”. This was not stated on oath:no allegation of cruelty was made, although Thevanapillai v. Ponniah(supra) had been cited on an earlier date. After still another postponementthe applicant appeared by Counsel and the Magistrate makes the signi-ficant note “ Mr. Kanaganayagam now states that the children aretreated with cruelty by the respondent and his present wife ”.
The trial was then held in instalments and eventually the Magistrateordered the appellant to pay Rs. 30 as maintenance, the Magistrateholding that the appellant had treated the children cruelly.
There are indications in the judgment that the Magistrate was influencedby considerations which should not have influenced him and that heallowed his sympathy to outrun his judgment. He starts by makingthe point that the appellant had not made over certain property to theapplicant. But there is nothing to indicate that he was called uponto do so: he had already expressed his willingness to do so. On thecontrary there is evidence as regards the most valuable asset that thechildren were unwilling to take it over. The elder girl when givingevidence professed her willingness to live in the house built on hermother’s property but was careful to add that she could not live therealone and that her grandmother was unwilling to live in that house.Her adopted brother was even more emphatic and gave as a reason fortheir, inability to occupy the house the hostility of the neighbours.
The Magistrate goes on to say that the elder girl spoke to “ variousacts of ill-treatment ” by the appellant and his second wife, but the girlonly spoke to being punished on two occasions and -to the fact that shewas not given by her stepmother dresses to wear and soap to wash herbody. She did not say she had complained on these points to theappellant or any one else. She said she used to be given the previousnight’s rice to eat while her parents ate “ pittu she had to cook,
1J7 N. L. R. 437.
DE KRETSER J.—Annapilloi v. Saravanamuttu.
she was scolded, she was not allowed to go to school in time. TheMagistrate does not. indicate which of these acts he considered to becruel and, in my opinion, the acts complained of did not amount tocruelty. I shall deal with some of these later.
The Magistrate relies on the evidence of -a teacher as corroborating thegirl’s story. Now, what did this witness say? That the girl left schoolin June, 1937: that he reported during the first half of the year thatshe was untidy: that her dress and hair were not clean: that her attend-ance was irregular and she used to get late. He adds that in consequenceof his report there was some improvement from January, 1937. But •if this later statement be correct his report could not have referredto the first half of "1937 but to some earlier period. And there is nothingin his evidence to corroborate the girl’s allegations against her’ stepmother. The' defects may have been due to the girl herself. Manychildren of that class are irregular in attendance, late in coming to school,and untidy.
I have already referred to the want of evidence to support the Magis-trate’s finding regarding the adopted son, a young man quite able tolook after himself.
The Magistrate disbelieved the appellant because he denied that hewas absent from home and infers, without any evidence, that it wasduring these periods of absence that the stepmother ill-treated the girls.It follows then that they were not ill-treated when he was not absent.The Magistrate invokes the aid of the evidence of a Police Vidane butdoes not refer to the fact that this same witness said that appellantwas wellbehaved and treated the children fairly well. ;He stated thatthe appellant had been a market renter and theri used to stay awayfrom home for a week or two. The girl said nothing about- her fatherstaying away. The adopted son said the appellant had been doingbusiness at Chavakachcheri but was later doing nothing.
The Magistrate ended by holding that the appellant had a pensionof Rs. 70 a month and, presumably because he believed that it wouldbe ■ a long time before the children got their property, he condemnedhim to pay. very nearly half his income as maintenance to his twodaughters, which left very little for himself, his wife and three childrenby the second marriage.
At the hearing of the appeal respondent’s counsel indicated a willing-ness to have the maintenance reduced.
Now, the Magistrate did not once address himself directly to thequestion whether the appellant had failed or neglected to maintain hischildren, and this was all he had to decide. Assuming that he intendedto say that the appellant ill-treated his children and in that way forcedthem to leave him and therefore failed to maintain them, his finding isnot correct either in fact or in law.
I have already alluded to the fact that' the charge of cruelty camerather late. If the Magistrate had examined this charge he wouldhave seen how little there was in it, at the best.
There is nothing to show that “pittu” is more nourishing than stalerice, and it is common knowledge that .many people eat stale rice, andeat it with relish. The girl says she had to cook. What was wrong
DE KRETSER J.—Annapillai jy.. Saravanamuttu.
with that? She had to admit the presence of one Rajaratnam whohelped in the house and the presence of a servant at the time of the trial.If she ate stale rice in the morning then no rice was cooked at that time.Presumably she was at school and did not cook the mid-day meal. Ifthere were no servants her stepmother must have cooked thatmeal. Wherein lay the cruelty if the girl cooked the rice in theevening?
The adopted brother did not say the elder girl did household work butsaid “ the smaller girl ” did it. He made ho specific statement aboutcooking or about stale rice.
The girl said that appellant drank. The adopted brother said nothingon this point and the headman said he did not know that appellantdrank.
With regard to the beating, the girl says she was beaten in August,1936, a year before she left, because she went with her uncle to a prize-giving during her father’s absence. She alleged that her hands weretied to a palmyra tree and she ■ was beaten. The appellant challengedthis as a physical impossibility. The Magistrate expresses no opinionon this point. The alleged witness to the assault is not called. Assumingthat the appellant did chastise her it was for going our without permission,that she should do so does not suggest much repression at home. ButI think the gravity of the offence lay in her going with her uncle. Therewas a suggestion that the uncle was trying to arrange a marriage betweenhis son and the elder girl and between his daughter and the appellant’sadopted son. The adopted son admits that the appellant had such anidea, so that it was not invented for the purposes of this case, and hereI believe probably lies the key to the whole difficulty.
On the facts therefore I am not satisfied that applicant has made out acase and I allow the appeal and dismiss her application.
I should like to add a few remarks about the law. Unfortunately theMagistrate has not discussed it but it is?quite possible that he guided himselfby the case of Thevanapillai v. Ponniah (supra). In that case Pereira J.rather deplored the revival of the provision that a grandmother wasoften entitled to the custody of the children when their father marrieda second time and went on to say that* as the grandmother was considereda suitable guardian she may be allowed to keep the children in case thefather happened to be a person not fit to be entrusted with the children,and then he would be liable to make provision for their maintenance.The reasoning was probably somewhat as follows: —
The children are in proper custody. The father must maintain themin that custody. If he refuses or neglects to do so he may -becompelled to pay.
Pereira J. thought himself bound by the decision in Kanapathipillai v:Sivakolunthu1 which was not ah action for maintenance but for theguardianship of certain minors.
Even in that case Laseelles C.J. did not think that the grandmotherhad an- absolute right to the custody of the children but only that thesection of the Tesaxoalamai gave an useful working rule.
» 14 N. L. R. 484.
DE KKETSER J.—Annapillai v. Saravanamuttu.
That decision was given on July 17, 1911. On that very day OrdinanceNo. 1 of 1911 came.into operation, and it made certain changes in the law.Section 3 enacted that the existing statement of the Tesawalamai wasto be followed unless found to be inconsistent with the provisions ofthe new Ordinance.
Section 39 gave the father a life-interest in the property left by hiswife, and section 40 stated that the father was liable to maintain thechildren until they attained majority.
Now paragraph 11 of the Tesawalamai stated: —
“ If the mother dies first, leaving a child or children, the father remainsin full possession of the estate so long as he does not marry again,and does with his child or children and with his estate in likemanner as is shown stated with respect to the mother. ”
“ If a father wishes to marry a second time, the mother-in-law ornearest relation generally takes the child or children (if theybe still young), in order to bring them up; and in such casethe father is obliged to give at the same time with his child orchildren the whole of the property brought in by marriageby his deceased wife and the half of the property acquiredduring his first marriage.”
_ Note that it happens “ generally ” and is not of universal applicationnor in any way made obligatory. It happens only when the childrenbe still young, and it is only when that arrangement is made that thefather is obliged to surrender the property mentioned. No furtherobligation is cast on him to maintain them. Note also that section 11stated that the father remains in possession until he marries again whereassection 39 seems to extend that right.
Now, in this case the children are not of tender years and when thefather returned to the Island the grandmother presumably thought thetime to give them up to him had come. The arrangement contemplatedby paragraph 11 had not in fact been made, for the father did not surrenderthe property and he did maintain the children. The grandmother wasin no better position than an outsider with whom the father left hischildren.
It is open to the grandmother now to claim the alleged right ? Idoubt it. Of course she may take the children but in that case shecannpt cast any obligation on the father. In this connection the obser-vations of my Lord the Chief Justice in Fernando v. Fernando' are in point.
But a further question arises. Paragraph 11 combined the question ofcustody of the children with surrender of the property. But Ordinance. No. 1 of 1911 gave the father a life-interest in his wife’s property untilthe children attained majority and the children had no right to possessionof their mother’s property on their father’s second marriage. Is thesituation not changed? And when section 40 made express provisionfor the maintenance of the children during their minority and said nothingabout the case of the father marrying a second time is it unreasonableto infer that the Legislature thought, as Pereira J. did, that paragraph 11was .^obsolete and impliedly repealed it? The two provisions are really
1 9 G. L. W. 97.
de Silva u. de Al-wis.
inconsistent. The obligation to maintain during minority is not con-sistent with the provisions of the Maintenance Ordinance, which fixesa different period.
Pereira J. went on the decided case. It was not brought to his noticethat the new Ordinance made a change. As a matter of fact his decisionmay be supported as being of general application, for if a father so cruellytreats his child that the child is driven to leave him, as happened in thecase Pereira J. was dealing with, might not a relative or friend shelterthe child and could the father escape liability to make provision tomaintain his child, whether under the Tesawalamai or the MaintenanceOrdinance ? Questions relating to the custody of a child are appropriatein guardianship cases or in applications for writs of habeas corpus, butin cases under the Maintenance Ordinance the only question is whetherthe father neglected or refused to maintain the child, and it is only whena father offers to take back the child that it becomes necessary to decidewhether that offer of his should be accepted ?
In the present case the grandmother had at no time an absolute rightto the custody of the children, and she certainly had no such right atthe time she made the present claim, but if the father had driven hisdaughters out and the Court thought his offer to take them back shouldnot be accepted, then possibly the Court might hold him liable to payfor their maintenance. But the Court would require very strong evidencebefore it Would deprive a father of the custody of his children. Here,not only has the respondent failed to prove cruelty on the part of thefather, but there is evidence of his having been mindful of the welfareof his daughters and one cannot force one’s views as to how the girlsshould be brought up on him.
Neglect to maintain must mean something -more than a difference ofopinion regarding the manner or the adequacy of the maintenance:is must mean such inadequate maintenance as to be in reality nomaintenance at all.
ANNAPILLAI v. SARAVANAMUTTU