142-NLR-NLR-V-17-GUNAWARDENE-v.-ABEYEWICKREME.pdf
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*014.
Present: Wood Renton O.J.
GUNAWARDENE v. ABEYEWICKREME.
688—P. C. Galle, 6,524,
Maintenance—Married woman having income sufficient to maintain
herself.
Obiter.—A married woman who is living apart from her husbandthrough no fault of her own is not debarred from claiming main-tenance (under Ordinance No. Id of 1669) by the fact that she hasa personal income sufficient for her maintenance.
T
HIS case was reserved forargument beforea Benchoftwo
Judges by Pereira J. On the question whether the Police
Court of Galle had jurisdiction, Wood Renton C.J. and Ennis J.delivered the following judgment, and sent the case for argumentbefore a single Judge on the other points involved in the case: —Wood BentonC.J .—This is aproceeding underOrdinanceNo.19
of1889, in whichtheapplicant seeksan order for maintenance against
her husband, therespondent. The question referred toa Benchoftwo
Judges for decision is whether the Police Court of Galle had jurisdictionin respectof theapplication whenthe defendantadmittedlylived at
Matara, that is to say, outside the territorial limits of the jurisdictionofthe Police sCourtofGalle. It nowappears that the abstract- question
ofjurisdiction neednotbe decided inthis case, because it is clearly a
case to which the provision of section 423 of the Criminal Procedure Code,shduld beapplied.There were twotrials in thiscase. Thedefendant
took no objection to the jurisdiction of the Police Court of Galle through-*out the first- trial, nor did he take any such objection before this Courtin the course ofthe first appeal,but- he practicallyacquiescedinthe
order for further hearing made by this Court, and then for the fiifsttime took this objectionbefore the Police Court at the further hearing of
the case. The Police Court of Galle has now made an order adverse to
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the defendant. I see no reason whatever for thinkings that the factthat the trial took place in a wrong local area (assuming that to be somerely for the sake of argument) has occasioned a failure of justice.T would apply to the case section 423 of the Criminal Procedure Code,and remit the case to be dealt with in due course by a single Judge ofthis Court.
Bhnis J.—I am of the same opinion.
A. St. V. .layewardene, for the appellant.
Bartholovieusz (with him Loos), for the respondent.
September 29, 1914. Wood Benton C.J.—
This appeal could be disposed of upon tbe evidence alone. Therespondent’s counsel did not argue before me the point that theseparation between tbe respondent and his wife, the appellant, was aseparation by mutual consent, and I am far from being satisfied onthe evidence that tbe appellant’s personal income is sufficient forher maintenance. The fact that the respondent, having desertedhis wife, or compelled her by his conduct to leave him, has con-tracted an adulterous connection with, and has had children by,another woman, is no reason for absolving him from the duty ofmaintaining bis wife. But as the case involves an important pointof law, which was fully argued before me, I will state my opinionupon it-. The appellant is living apart from her husband throughno fault of her own, but she has, ex hypothesi, a personal incomesufficient for her maintenance. Is she debarred by this circumstancefrom taking proceedings against the respondent under the Main-tenance Ordinance, 1889 (No. 19 of 1889) ? The appellant’scounsel, Mr. St. Valentine Jayewardene, strenuously argued thatshe is. He contended that, on the authority of the judgment ofSir John Bonser C.J. in Subaliya v. Kannangara,1 the Ordinance of1889 is founded upon, and gives effect to, the Boman-Dut-ch law asto maintenance, and merely provides a simpler process for theenforcement of that law; that under the Boman-Dutcb law thehusband was under no obligation to maintain a- wife who had anyproperty of her own, except in such circumstances as would entitleher to bind his credit; and that the view expressed by the learnedPolice Magistrate that the language of section 8 of the MaintenanceOrdinance, 1889, shows that a wife has a right to maintenance,even where she is able to maintain herself, is contradicted by formNo. 2 in the schedule to the Ordinance.
So far back as 1863, it was held by Sir Edward Creasy C.J. andThompson J., in the case of TJkkv v. Tambayo,* that, by the law ofthi6 Colony, the husband by the marriage contract tabes uponhimself the duty of supporting and maintaining his wife so long as* (1889) 4 N. L. R. 121.4 (1863) Ram. 1863-1878, 71.
1914.
Gunaicardeaev. Abege-
wickreme
1914.
StfoOD
Benton C..T.
Gunawardenev. Abeye-wickreme
( 452 )
she remains faithful to her marriage vow. The learned Judges whodecided that case stated also'that a wife in Ceylon would, only havea right to sue her husb.aiid 'for, maintenance where in England* shewould have & right to pledge. his credit. But that expression ofopinion must be looked at secundum subjectam materiem, and'it .isclear that what the Court had in view was not the question whetherthe wife had an allowance from her husband, sufficient to cover allnecessary expenses, but the rule , of English law that, even where awife would otherwise be entitled to pledge her husband’s credit, shecould not take advantage of this right where she herself was nolonger faithful to her marriage vow. The case was sent back to theDistrict Court, not for inquiry as to whether the wife had meansadequate for her own support but for further hearing on thequestion whether she had committed adultery before or after thedesertion'. : The* principle laid down in the case of UkkiC v. Tambaya 1was recoghi'zed by this Court in Ratmsinghe. '-v’.-Peris * and thereds nodecision,**so far ag I am aware, in conflict with it. In D. C. Negombo,No. 7‘,875,5 Clarence A.G.J-."-and Dias J. touched upon -the p<J>inbwhether a wife living separate from her husband, and not suing-fordivoree: or judicial separation, can claim damages in respect of pastmaintenance. But it was not necessary to :decide this issue, and'Lawrie J. indicated that in his view the law. was that, a .husband wasbound either to maintain his wife in- his own house, or,- if he refusedto do so, to supply her with maintenance; In P. C. Kandy, No.12,848,4 a maintenance case was remitted by Lawrie J. to the PoliceCourt for further evidence as to whether or hot the applicant h$tdsufficient means to support herself. But that * was a case ofc^amarriage in binna, under which it might well be contended that-thenature of the contract of marriage exOluded'anv liability on the paftof the husband to maintain a wife, and this view is;‘confirmed :bythe opinion expressed by Lawrie -I. in the- case of P. 0. Katldy,No. 12,848.-*1•"*-':
I have carefully examined all the Boman-I)utcli. texts to whichI have been, able to get access with regard to the question undferconsideration. They seeni to support the view expressed byMiddleton A.C.J. and Pereira J. in R(unasinghe v. Peris J that, underBoman-Dutch law, the husband..was hound to maintain his wifeso long as she remained faithful to him. .The passage from Maasdorp(vol. pp 30, 31) to which Mr. Jayevvardene referred-me does notseem to.:me to support the5 argument- that he-based-upon it. Ij>means nothing more than this—.that maintenance, may be withheldas a matter of judicial discretion, where a. wife is provided withample means, and the husband-is not in a position to .contribute toher support. Jn the paragraph immediately preceding this passageMaasdorp expressly says that the husband is .bound to maintain the 1 2
1 (1863) Bam. 1863-137$, 71.a (1877) Bam. 1877, 331.
2{1909) 13 N. L. R: 21.: ■4 (1899) Koch's Reported 4.
wife in a manner-suitable to her rank and position, so much so thathe will even be liable for necessaries supplied to her, whilst livingapart from him, whenever she has been obliged to leave him onaccount of his misconduct. The decision of Sir John. Bonser inSubaliya v. Kannangara 1 does not involve the conclusion that theMaintenance Ordinance, 1889, is concerned with procedure alone.It is clear that sections 8, 4, and 5, to go no further, deal withmatters of substantive law. I entirely agree with the learned PoliceMagistrate that, in section 8, the words “ unable to maintain itself ”apply to children alone, and the fact that in form No. 2 in theschedule they are treated as applicable to the wife also -is immaterial.“It would be,’’ said Lord Penzance in Dean v. Green.- “ quitecontrary to the recognized principles upon which Courts of Uwhave to construe Acte of Parliament to restrain the operation' ofan enactment by any reference to the words of .a mere formgiven for convenience’ sake in a schedule.”
The appeal must be dismissed yrith costs.
1914.
Wood
Renton- C.J.
Qunowardencv. Abeye-
■wiclerettH!
Appeal dismissed.