2 Sri L.R.
106Sri Lanka Law Reports
BEATRICE VENETIA PERERAv.
ARTHUR SIMON PERERA
COURT OF APPEAL.
G. P. S. DE SILVA. J. (President, C/A) AND P. R. P. PERERA, J.C.A. No. 13/83.
M.C. MT. LAVINIA No. 2085/FCM.
DECEMBER 16, 1986.
Maintenance-Maintenance Ordinance ss. 2, 3 and 4-Invitation by husband to wife to" live with him-Persistent refusal of offer by wife.
Under s. 2 of the Maintenance Ordinance if the husband had sufficient means and thereis proof that he neglects, or refuses to maintain his wife the magistrate may order him tomake a monthly allowance for her maintenance.
Under s. 3 if the husband offers to maintain his wife on the condition of her living withhim the Magistrate may consider the grounds of any refusal by her of his offer and makean order for maintenance. If the husband is living in adultery or has habitually treated hiswife with cruelty the maintenance can be ordered notwithstanding such offer.
Section 4 provides that the wife will not be entitled to such maintenance if she is living in. adultery or without sufficient reason refuses to live with her husband or if they are livingseparately by mutual consent.
Where the wife persistently refused the invitation of her husband to her to live with himalleging misconduct on his part with her daughters and frequent assaults whichmisconduct and assaults were not proved to the satisfaction,of the magistrate, the wifewas not entitled to maintenance.
Cases referred to:
(1) Sathasivam v. Manikkaratnam – (1962) 66 NLR 355.
' (2) Richard v. Anulawath/e – (1971) 74 NLR 383.
APPEAL from order of the Magistrate of Mt. Lavinia.
E. Gunaratna for appellant.
N. R. M. Daluwatte, P C. with Miss Gabadage and Miss Nandadasa for respondent.
Cur. adv. vult.
Venetia Perera v. Simon Perera
March 2. 1987.
This is an appeal from an order made by the Magistrate of Mt. Laviniadismissing the application of the appellant for maintenance for herselfin a sum of Rs. 2,500 per month.
It would appear from the proceedings in this case that at thecommencement of the inquiry, the respondent had invited theappellant to' live with him and had offered to maintain her on thecondition of her living with him. This offer has been made on1.2.1982. In the course of the inquiry on 25.6.1982, the respondenthas- extended an invitation to the appellant for the second time.Thereafter on 9.11.1982 and 16.11.1982, the respondent haspersisted in this offer-but the appellant has consistently refused toaccept the offei made by the respondent.
The learned Magistrate having considered the evidence adduced inthis case and the provisions of sections 3 and 4 of the MaintenanceOrdinance (Chapter 91) has held that the appellant has refused toaccept the offer made by the respondent to maintain her on conditionof her living with him and that she has done so without sufficientreason. He has accordingly dismissed the application of the appellantfor maintenance.
It was the principal submission of counsel for the appellant that on -the evidence available in this case, the offer made by the respondentto the appellant to maintain her on condition of her living with him wasnot a genuine offer. He contended that an offer made under section 3of the Maintenance Ordinance must be an offer which the other partycould accept at the time it is made. Relying on Sathasivam v.Manikkaratnam (1) counsel argued, that where a husband on beingsued by his wife for maintenance offers to maintain her on condition ofher living with him the Court must consider whether the offer is madebona fide. If the offer is not genuine, the defendant is liable to paymaintenance. He contended that the object of section 3 is to attempta reconciliation between the parties by compelling the husband to fulfilhis marital obligations by providing a matrimonial home. The offertherefore must be reasonable and should be capable of acceptance. Itis the reasonableness of the offer which establishes good faith.
108Sri Lanka Law Reports2SnLR
According to the evidence of the appellant in this case, she wascompelled to leave the respondent in 1973, due to frequent assaultsby the respondent In the course of her evidence she has givenreasons as to why she refused the offer made by the respondent tolive with him. According to her, she did not accept this offer becausethe respondent has misconducted himself with her daughters andfurther has indulged in frequent assaults on her. The respondent hasdenied these allegations.
The argument of counsel for the appellant in this case was based onthe provisions of sections 3 and 4 of the Maintenance Ordinance.Section 2 provides that if any person having sufficient means, neglects
or refuses to maintain his wifethe Magistrate may upon proof
of such neglect or refusal order such person to make a monthlyallowance for the maintenance of his wife…….
According to section 3-
"If such person offers to maintain his wife on condition of herliving with him, the magistrate may consider any grounds of. refusalstated by her and may make order under section 2, notwithstandingsuch offer if the magistrate is satisfied that such person is living inadultery or that he has habitually treated his wife with cruelty."
# Further, section 4 (four) provides thus-
"No wife shall be entitled to receive an allowance from herhusband under section 2, if she is living in adultery, or, if without anysufficient reason she refuses to live with her husband or if they areliving separately by mutual consent."
In our view, the learned Magistrate has given careful consideration tothe provisions of section 3 and section 4 of the MaintenanceOrdinance and the evidence adduced in this case and has held thatthere is no evidence to support either that the respondent was living inadultery or that he has habitually treated the appellant with cruelty.
. The Magistrate has also held that the appellant has failed to placesufficient material to justify the refusal of the offer made by therespondent. We see no reason to interfere with these findings of factmade by the learned Magistrate.
Venetia Perera v. Simon Parera (Perera, J.j
On the question whether the offer that was made by the respondentin this case was made bona fide, the learned Magistrate appears tohave preferred to follow the decision in Richard v. Anulawathie (2)where it has been held that an order for maintenance for the wifecannot be made merely because in the opinion of the Court the offer ofthe husband to maintain his wife is not made bona fide. In any eventhaving regard to the evidence in this case there is no. material in ourview to support the proposition that the offer made by the respondentto maintain the appellant on the condition of her living with him wasnot made bona fide. The appeal is therefore dismissed. There will beno costs.
G. P. S. DE SILVA, J. (President, C/A)-l agree.