004-NLR-NLR-V-71-C.-NADARAJAH-Appellant-and-E.-A.-NADARAJAH-Respondent.pdf
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Vadarajah v. Nalarajah
(866Present : AJles, J.
NADARAJAH, Appellant, and E. A. NADARAJAH,
Respondent
S. C. 83411964—M. G. Batticaloa, 8554
Maintenance—Application by wife—Her men means not relevant—Maintenance ofchild—First application made when the child is between the ages of 16 and 18—■ Incapacity of Court to award maintenance then—Maintenance Ordinance,ea. 2, 7.
The fact that a wife has sufficient means does not preclude her fromobtaining an order of maintenance in her favour under section 2 of the MaintenanceOrdinance.
Sc-ction 7 of the Maintenance Ordinance is a bar to an order of maintenance inrespect of a child if the application for maintenance is made for the first time afterthe child has attained the age of sixteen years.
Thangayogam v. Chetliah (42 N. L. R. 379) not followed.
ApPEAL from a judgment of the Magistrate’s Court, Batticaloa.
Thiagalingam, Q.O., with J. N. David and P. Nagendran, fordefondant-appellant.
Ranganalhan, Q.C., with S. C. Crosselte-Thambiah, for applicant-respondent.
Cur. adv. vult.
1(I960) 68 0. L. W. 79.
n
ALLES, J.—Kadarajah v. NadarajahFebruary 11,1065. Aixbs, J.—
This is an appeal from the order of the Magistrate of Batticaloa directingthe defendant to pay maintenance to his wife, the applicant, and theireight children, the eldest of whom was a girl colled Chandradevi who was .17 years of age at the time of the application. The defendant admittedthe marriage and the paternity of the children but donied that he had(ailed and neglected to maintain the applicant and the children, andinvited the applicant to live with him. The applicant, however, refusedto live with him alleging that life with tho dofondant had becomeimpossible owing to his frequent assaults and habitual cruelty. Thecase has been keenly contested and both the applicant and the defendanthave been examined and cross-examined at great longth. Tho learnedMagistrate in a carefully considered order has come to the conclusionthat the defendant had occasionally assaulted the applicant and treatedher with cruelty, that the applicant was justified in refusing to continueto live with him and that she was entitled to claim maintenance for her-self. He has also held that for a considerable period and more particularlyfor four months prior to the filing of the plaint, the defendant neglectedto maintain the applicant and the children and failed to provide hischildren with adequate food and clothing and facilities for their studiesand that therefore the applicant was entitled to an order for maintenancein favour of the children. He has ordered the defendant to pay a sum ofBs. 75 to the applicant, Rs. 75 to each of the two older children andHe. 50 each for the other six children amounting in all to a sum ofBs. 525 per month.
The evidence that has been accepted by the Magistrate reveals a veryharrowing state of affairs. The Magistrate has described the dofondantas a schemer. When he married the applicant in 1045 ho gave up Irisjob as a clerk in the Colombo Municipality and migrated to Batticaloawithout a job, presumably to look after his wife’s properties. Witliin ashort time he succeeded in having a valuable tract of paddy fields inextent about 80 acres transferred in his name, took tho income fromthese fields, appropriated tho rents due to his wife from a hotel belongingto her and took up residence in his wife’s house with his family leadingwhat has been described by the Magistrate as a “ cat and dog life ",without taking adequate steps to look after his wife and children. Heconsidered it the duty of a benevolent State to educate his children withlittle or no effort on his part, he left the task of clothing his cluldron tohis wife’s relatives and he practically starved his children. They used togo to school in the morning without a square meal and the eldest girlfainted in school on three occasions for lack of nourishment. His wifeand children slept on mats without pillows while he enjoyed the luxuryof a bed. To quote the Magistrate’s own language, the defendant treatedhis family as if they were beggars asking for alms. His niggardlinesswas not due to any lack of means on his part because he enjoyed theentire income of his wife's properties amounting to over Bs. 1,000 amonth.
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ALLES, J.—Nadarajah v. Nadarajah
It is unnecessary to dwell at length on the findings of fact in this casebecause counsel for the defendant very properly did not seek to canvassthe Magistrate’s findings on the facts. He submitted, however, that inlaw, the Magistrate was inerror in ordering his client to pay maintenancein respect of the applicant and tho eldest daughter Chandradevi.
His contention that the Magistrate was wrong in making an order formaintenance in favour of the applicant is based on the fact that,admittedly after the institution of proceedings in the case, she commencedto receive the rent of the hotel amounting to Rs. 100 per month. Thiswas brought about as a result of a temporary settlement by the Magis-trate, whereby it was agreed be tween the parties that the rent of tho hotelshould be paid by the tenant direct to the applicant. It was stated inCourt that this settlement was without prejudice to the rights of theparties. Counsol for tho do fondant submitted that since the applicantwas receiving this sum monthly, the order of maintenance made in herfavour was not justified. I am unable to agree. The hotel belonged tothe applicant and she was rightly entitled to receive tho rents from herown property and tho fact that the defendant had previously appropri-ated tho rents of the hotol does not relieve him from his liability to paymaintenance for his wife. In Sathasimm v. Manickaratnam1, it has beenhold that the fact that tho applicant had sufficient means does notpreclude her from obtaining an order of maintenance in her favour. Thefirst submission of Counsel for the defendant therefore fails and the orderof maintenance directing the defendant to pay Rs. 75 per month to theapplicant will stand.
Tho socond submission of Counsel for the defendant, however, raises aquestion of some complexity particularly in view of certain decisions ofthis Court on this point. Learned Queen’s Counsel submits that, undertho Maintenance Ordinance, tho Magistrate is not empowered to make afirst order of maintenance in respect of a child who is over sixteen years ofage at the time of the application. I have given careful consideration totho submissions of both Counsel on this question and I have come to theconclusion that Mr. Thiagalingam’s contention is entitled to succeed. Inview of an apparent conflict of authorities, I have been invited to referthis question to a fuller Bench but I do not think it is necessary to do sobecause this same problem arose for consideration before Swan, J. inHinniappuliamy v. Wilisindahamy2, and the learned Judge, in spite oftwo apparently conflicting judgments, preferred to take the same viewwhich I propose to take in this appeal.
The Maintenance Ordinance was passed in 1889 and section 3 of theOrdinance is in the following terms :—
“ If any person having sufficient means neglects or refuses to main-tain his wife, or his legitimate or illegitimate child unable to maintainitself, the Police Magistrate may, upon proof of such neglect or refusal,order such person to make a monthly allowance for the maintenance of- 1(1862) 66 N. L. B. 3S5 at 358.• * (1952) 54 N, L. B. 373.
ALLES, J.—Nadarajah v. Nadarajah
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his wife or such child at such monthly rate, not exceeding fifty rupees,as the Magistrate thinks fit, and to pay the same to such person as theMagistrate may from time to time direct. Such allowance shallbe payable from the date of the order.”
Section 8 reads as follows :—
“No order for an allowance for the maintenance of any child,legitimate or illegitimate, made in pursuance of this Ordinance shall,except for the purpose of recovering money previously due under suchorder, be of any force or validity after the child in respect of whom itwas mode has attained the age of fourteen years, or after the death ofsuch child :
Provided that the Police Magistrate may in the order directthat the payments to bo made under it in respect of the child shallcontinue until the child attains the age of eighteen years, in which casesuch order shall be in force until that period.”
From an analysis of these two sections it would appear that—
the monthly allowance that can be decreed in respect of any childshall not exceed Rs. 50;
the order of maintenance shall be valid only till the ehild attainsthe age of 14 ; and .
. the Magistrate may direct in the order that payments shall continueuntil the child reaches the age of 18.
The provisions of the above sections were considered by the SupremeCourt in Este v. Silva l. In that case, Withers, J. held that under section8, if a child has to be maintained until he or she attains the age of 18years, that time must be limited in the original order. As the originalorder was silent as to the time, it had no validity after the subject ofthe order reached the age of fourteen years.
By Ordinance No. 13 of 1925 certain amendments to the law were intro*duced. Under section 2 (which corresponded to the old section 3) themonthly allowance payable was increased to a sum not exceeding Rs. 100and section 7 which corresponded to the previous section 8 read asfollows:—•
“ No order for an allowance for the maintenance of any child, legiti-mate or illegitimate, made in pursuance of this Ordinance shall, exceptfor the purpose of recovering money previously due under such order,be of any force or validity after the child in respect of whom it was madehas attained the age of sixteen years, or after the death of such child:
Provided that the Magistrate may in (he order or subsequently directthat the payments to be made under it in respect of the child shallcontinue until the child attains the age of eighteen years, in which casesuch order shall be in force until that period.”
' (1895) 1 N.L.B. 22.
8-PP 006137 (98/08)
to
ALLES, J.—Nodarajah 0. Nadarajah
By 1925 therefore the lew was altered in the following respects :—
(а)The monthly allowance was increased to a sum not exoeeding
Rs. 100.(б)The validity of the order of maintenance was extended until the
child reached the age of sixteen.
The Magistrate could direct in the order that payments shall
continue until the child reached the age of eighteen. (Thiswus similar to the old law.)
It was open to a party to make an application to extend the period
up to eighteen years even after the original order was made,provided it was done before the child attained the age ofsixteen.
The alterations in the law whi ch came into operation in 1925 were obviouslybrought about as a result of changing social conditions which made itnecessary to alleviate the rigours of the law as it existed up to 1925 inorder to enable the quantum of maintenance to be increased and the periodfor which maintenance was payable to be extended. It also made itpossible for an application to be made subsequently for the extension ofthe period until the child reached the age of eighteen years even if theoriginal order only fixed the period of validity until the child reachedthe age of sixteen years, a procedure which was not available as thelaw stood before 1925.
It seems clear however that unless action was taken under the provisoto either the old section 8 or the new section 7, the period of validity of amaintenance order expired in the one case when the child reached theage of fourteen years and in the other, when the child reached the ageof sixteen years. No fresh order for maintenance could be made after achild attained these ages. This is, in effect, the submission that has beenmade by Counsel for the defendant before me.
Having regardto social and economic conditions today and the necessityfor higher education between the years of sixteen and eighteen, it wouldbe difficult for a child to maintain itself until he or she reaches theeighteenth year. Today, children between these ages invariablycontinue to remain under the tutelage of their parents. There may be acase of genuine hardship where the law does not permit an order ofmaintenance to be made for the first time in respect of a child who is oversixteen years of age at the time of the application. Counsel for theapplicant invited me to apply the test of reasonableness and submittedthat it could not have been the intention of the Legislature to deprivechildren between the ages of sixteen and eighteen of the benefits of theMaintenance Ordinance. I am unable to adopt a wide interpretation tothe wording of section 7 without doing violence to the language of thesection. If, as a result of changing social conditions, it has again become
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ALLES, J.—Nadarqjah v. Nadsrojdh
necessary to amend the law, the remedy lies with the Legislature. Thefunction of the Courts is to interpret the law and if Judges consider itdesirable to extend the law it must only be done in exceptionaldroumstanoee and in accordance with fundamental principles. In thisconnection the observations of Lord Reid in Myers v. Director of PublicProsecutions1 are of special interest. That was a case in which it wassought to extend the principle of hearsay evidence to a larger class ofcases. Lord Reid in that connection stated as fellows :
" The oommon law must be developed to meet changing economicconditions and habits of thought, and I would not be deterred byexpressions of opinion in this House in old oases. But there are limitsto what we can or should do. If we are to extend the law it must be bythe development and application of fundamental principles. Wecannot introduce arbitrary conditions or limitations: that must beleft to legislation. And if we do in effect change the law, we ought inmy opinion only to do that in oases where our decision will producesome finality or oertainty. If we disregard technicalities in this caseand seek to apply principle and common sense, there are a number ofother parts of the existing law of hearsay susceptible of similar treat-ment,and we shall probably have a series of appeals in cases where theexisting technical limitations produce an unjust result. If we are togive a wide interpretation to our judicial functions questions of policycannot be wholly excluded, and it seems to me to be against publicpolicy to produce uncertainty. The only satisfactory solution is bylegislation following on a wide survey of the whole field, and I thinkthat such a survey is overdue. A polioy of make do and mendis no longer adequate. The most powerful argument of those whosupport the striotdoctrine of precedent is that if it is relaxed judges willbe tempted to encroach on the proper field of the legislature, and thiscase to my mind offers a strong temptation to do that which ought tobe resisted.’*
I have so far examined the language of section 7 and come to theconclusion that the law as it exists today is an absolute bar to an orderfor maintenance being made for the first time in respeot of a child betweenthe ages of sixteen and eighteen. I shall now proceed to examine thedecisions of this Court where the interpretation of section 7, after theamendment ofthe law in 1025, has been considered.
In Dona Rosaline v. Ounasehera * Garvin, A.C.J. expressed the opinionthat the amendment of section 7 by the addition of the words “orsubsequently ” did not give a Magistrate jurisdiction to give directions inrespeot of an order which had ceased to be of any force or validity.Acoording to the learned Aoting Chief Justice the legislature did not givea Magistrate power to make a fresh order imposing a fresh liability upona person whose original liability to pay maintenance had expired. “ Theword * subsequently ’ introduced into the proviso by the amending
» (1004) 3 W. L. R. 148 ai 18*.* (1928) 13 C. L. W. 17.22
ALLES, J.— Nadarajah v. Nadarajah
Ordinance ” he said “ meant subseqnent to the making of the order butbefore the order expired and ceased to be of any validity.” This was thecase of a child in respect of whom there was a valid order for maintenancein existence but the order expired on the child reaching the required age.In 1941 Soertsz, J. in Thangayagam v. CheUiah1 was dealing with the caseof a child in respect of whom a first order for maintenance was being madewhen the child was over sixteen years of age at the time of the application.He did not disagree with the view expressed by Garvin, A.C. J. in DonaRosaline v. Gunasekera but since the question raised in Thangayagam v.CheUiah was in regard to a point different from that raised in DonaRosaline v. Ounasekera he proceeded to examine the wording of section 7from a different angle. The Magistrate had held that section 7 was anabsolute bar to a fresh application for maintenance in respect of a childover sixteen years of age. In the view of Soertsz, J. the Magistrate hadoome to an erroneous conclusion on the law. After considering theRoman Dutch Law on the subject the learned Judge expressed the viewthat, at common law it was open to a child to ask for maintenance at anyage until such time as the child was able to maintain itself. He thenconsidered the provisions of section 7 and sought to deal with the sectionin two separate parts. Under the main section he conceded “ that wherean order for maintenance has been given in favour of a child withoutlimitation of the period of maintenance, the order will not be of forceonce the child has attained sixteen years of age, except so far as arrearsof maintenance are concerned, unless the Magistrate makes a fresh orderprolonging the period of maintenance for any additional period up to theeighteenth year.” He then continues to say that the main part of thesection does not deal with the applications of children who had attainedtheir sixteenth year, but it does not say that such applications may notbe made if a Magistrate is empowered, in the first instance to ordermaintenance until a child attains its eighteenth year. He thereforeargues that *' there does not appear to be any good reason why a firstapplication for maintenance may not be made between the age of sixteenand eighteen.” Quoting the words “ provided that the Magistrate mayin the order or subsequently.;the learned Judge maintains thatthese words “ do not bar a first order after the sixteenth year, but on thecontrary suggest that such an order may be made at any time before theeighteenth year is attained.” In interpreting the section in this manner,the learned Judge appears to have been influenced by the common lawon the subject and seeks to give the section an interpretation in accordancewith the common law. With all respect to the learned Judge, he appearsto have failed to consider the words of the entire proviso. Quite apartfrom the well-known canon of construction that a proviso to a sectionmust be considered together with the principal matter, the words “ in theorder ” and “ such order ” in the proviso can only have reference to the“ order ” referred to in the main section. I cannot agree, therefore, thatthe proviso to section 7 must be considered as distinct from the main
1 {1941) 42 N. L. R 379.
ALLES, J.—Ntularajah v. Nadarajah
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section, to enable it to be applied to an order for maintenance made forthe first time in respect of a child between the ages of sixteen andeighteen.
In 1952 an opportunity arose for the Supreme Court to consider thedecisions in Dona Rosaline v. Ounasekera and Thangayagam v. CheUiah.The question was raised in Hinniappuhamy v. Wilisindahamyl. In thatcase, the applicant obtained “ on 10.9.1951 an order of maintenance forherself and her child Jinadasa. On 31.3.1952 the case was called on aquestion of arrears. On that date the Proctor for the applicant movedthat the order in favour of the child should continue till ho attained theage of eighteen. A birth certificate was produced which showed thatJinadasa was boro on 9.12.1935. The learned Magistrate made orderallowing the extension asked for.” The point for decision was whetherthe Court had jurisdiction to extend the order on that date because it wasobvious that on 31.3.1952 Jinadasa had passed the age of sixteen.-Swan, J. followed the decision in Dona Rosaline v. Ounasekera and agreedentirely with the view expressed by Garvin, A.C.J. He referred to theobservations of Soertsz, J. in Thangayagam v. CheUiah but did not con-sider it necessary to examine his views because the facts were different.In Dona Rosaline v. Ounasekera and Hinniappuhamy v. Wilisindahamy theCourt was considering the validity of a maintenance order in respect ofwhich an extension was sought up to the eighteenth year after the validityof the original order had expired. In Thangayagam v. CheUiah, like thepresent case, the first application was made in respect of a child when thesubject of the order was over sixteen years of age at the time of theapplication. For the reasons I have already stated, I am of the viewthat the case of Thangayagam v. CheUiah has been wrongly decided. Whenan order for maintenance in respect of a child is made for the first timeafter the child has reached the sixteenth year, it makes no difference thatan earlier order was in existence. That order had expired when thechild reached its sixteenth year and any order made thereafter would be afirst order in respect of which no provision has been made under theMaintenance Ordinance. The decisions in Dona Rosaline v. Ounasekeraand Hinniappuhamy v. Wilisindahamy would therefore be applicable tosuch a case.
<
fa the result, I agree that the Magistrate had no power to make anorder for maintenance in respect of Chandradevi. The wording of section7 makes this abundantly clear and this view is supported by judicialauthority. The order of maintenance in favour of Chandradevi is setaside. Subject to this variation, the appeal is dismissed. There will beno costs of the appeal.
Appeal mainly dismissed.1 {1962) 64 N. L. S. 378 at 374.