024-NLR-NLR-V-77-D.-G.-PERERA-Appellant-and-K.-A.-D.-SHAMA-PERERA-Respondent.pdf
RA JARATN AM, J.—Perera v. Perera
143
t972Present; Rajaratnam J.D. G. PERERA, Appellant, and K. A. D. SHAMA PERERA,Respondent
S. C. 601/71—.M. C. Colombo, 33347/AMC
Maintenance—Order for maintenance of children—Children looked after by a thirdparty subsequently—Liability of the defendant nevertheless to pay all arrearsdue —Maintenance Ordinance, s. 10.
Whore a person has been ordorod under the Maintenance Ordinance to paymaintenance in favour of his children, his liability to pay arrears of maintenanceis not extinguished by the fact that a third party looked after the cliildrou whenthey were destitute.
Appeal
from a judgment of the Magistrate’s Court, Colombo.
N.R. M. Daluwatte, for the defendant-appellant.
IF. Justin Perera, for the applicant-respondent.
Cur. adv. trull.
October 19, 1972. Rajabatnam, J.—
The appellant in this case admitted the paternity with regard to threechildren on behalf of whom the mother claimed maintenance. Thedefendant-appellant agreed to pay a sum of Rs. 140 in respect of thesethree children on the 22nd of March 1968. An order was made accordinglyfor the payment of this sum. On the 31st May 1968 the applicant cameto Court complaining that the defendant failed to pay a sum of Rs. 280for two months ending on 22.5.68 and a distress warrant was issued.On 19.7.68 the said warrant was returned unexecuted and the Fiscalreported that there were no movables. On 9.8.68 and 7.9.68 thedefendant again failed to be present in Court. By this time thedefendant had only paid Rs. 100 in respect of the arrears of Rs. 280due up to the 22nd May 19C8. There were a number of dates followingin Court when the defendant absented himself and tho warrants werereturned unexecuted. The defendant, it is abundantly clear, evaded andavoided liability and the applicant had to come to Court on severaloccasions to recover the arrears due to her for the first two months.Ultimately she came to Court and claimed a sum of Rs. 2,420 arrears dueup to the 22nd of September 1969, and prayed for a distress warrant onthe 19th of October 1969. On the 19th December 1969 the defendantfailed to be present and the distress warrant was returned unexecuted.There was the same sequel on two following dates and finally on the15th of June 1970 the defendant presented himself and denied that thesum of Rs. 2,420 was due from him. The dispute was fixed for inquiryand after a few more dates the respondent paid Rs. 600 on the 6th of
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RAJARATNAM, J.—Perera v. Perera
December 1970. After several more dates the matter was finally inquiredinto on the 3rd January 1971. Thereafter there were a few more datesand the inquiry proceeded on the 31st January 1971 and at last anorder was made on the 1st of March 1971 from which order the presentappeal was lodged.
The main and the only point of dispute was that the defendant waanot liable to pay any maintenance to the children in view of the factthat these 3 children were maintained in various orphanages duringthe period for which arrears of maintenance were claimed. It is not atall surprising that the mother was compelled by circumstances due tothe defendant’s neglecting to maintain his children to put the childreninto orphanages. It was unreasonable for the defendant to expect thesechildren under such circumstances to have been maintained in comfortby the applicant while he was neglecting and avoiding payment ofmaintenance. The order for maintenance was made against the fatherfor neglecting or refusing to maintain his children and once this orderis made after an inquiry or after an agreement this will stand till anapplication is made under s. 10 of the Maintenance Ordinance tocancel or vary the order.
The learned Magistrate has held that it cannot be said that the childrenwere not maintained by the applicant. There is evidence at least in respectof one child that the mother spent on books and provided clothes. Itcannot be forgotten that the period in which the children were inorphanages was the period that the defendant evaded payment of anymaintenance. The journal entries eloquently reveal the conduct of thedefendant and he cannot be heard to avail himself of the benefit of hisown evasion. The liability of the defendant to pay maintenance duringthis period to his children is not extinguished by the fact that a thirdparty looked after the children when they were destitute. An order tothe effect that the defendant is not liable to pay his arrears will be aninvitation for defaulting fathers to create situations where the poormother has to depend on charity of others and for that reason forthem to claim non-liability to pay the arrears. I
I hold that the learned Magistrate made the correct order in this casewhen he held that the defendant was liable to pay Rs. 2,420 less Rs. 500to the applicant.
I dismiss the appeal with costs.
Appeal dismissed.