062-NLR-NLR-V-33-GUNESEKERA-v.-AHAMATH.pdf
Guruwefcere v. Ahamath.
241
1931Present: Maodonell C.J.
GUNESEXERE ». AHAMATH.
532—P. C. Colombo, 12,102.
Maintenance—Order infavour of chili onapplication ofthemother—Death of
mother—Application renewed by uncle—Orderof arrears—Child without
means of support—Ordinance No. 19 of 1889, s. 3.
An orderlor"»a£ntenancewas passedagainstthe respondent in favour
of a childonthe application of themother.After the death of the
mother, the orderwasrenewed on theapplication ofthepresent applicant,
the mother's brother, who had maintained the child in the interval.
Held (onanapplicationfor paymentof arrears of maintenance) that
the child cannotbeprevented fromobtaining an orderfor maintenance
from its fatherorfrom obtainingarrears underasubsisting order,
merely because it was maintained by the charity of a third person.
A
PPEAL from an order for maintenance made by the Police Magistrateof Colombo.
Bajapakse,forapplicant,respondent,tooka preliminary objection
that no right of appeal lay. See Mariapillai v. Savarim-uttu.1 Appeallies only under section 17 of Ordinance No. 19 of 1889. This is not anorder under section 3 or 14 but an order under section 12.
Weerasooria, for defendant, appellant.—Even if no appeal lies, theSupreme Court can deal with the case by way of revision. Noprejudice caused to respondent, if the appeal is regarded as an applicationfor revision.
The original parties to the case were the applicant (mother) anddefendant. The order was made in favour of the applicant. Applicantdied in 1927 and the order ceased then. No procedure in the order forthe substitution of any other party in place of the applicant (mother). Afresh application has to be made by any person on behalf of the childunder section 3 of the Ordinance. This substitution is in effect such anew application. Therefore, no arrears for past maintenance of the childcan be claimed. (Ranasinghe v. Peiris2.) In English law, section 5of the Poor Law Amendment Act of 18443 refers to the death of theapplicant and the appointment of some one to have oustody of childand receive the maintenance. A note to the section in 'Halsbury states“ the words in the .section seem to exclude a power to recover arrearsaccruing, due before the appointment ”.(2 Hals. 442, s. 753, note K.)
If a wife or child comes to Court to claim arrears, the presumption is thatshe or it maintained herself or itself out of their private means. SeeRanasinghe v. Peiris (supra), p. 23 and 25.
Rajapakse, for applicant, respondent.—Exercise of revisionary powersis discretionary. Supreme Court will not interfere in revision, unlessorder is manifestly unjust (Hamid v. Alvares1).
*14 N. L. H. 244.
13 N. L. R. 21.
*7 At 8 Viet. e. 101.* 4 C.W. R. 250.
242MACDONELL C.J.—Gunesekere «. Ahamath,
Beal parties to the original order are the child and the defendantsMother is merely the agent or representative of the child to draw mainte-nance due to it. The adjudication by the Court was that the defendant*is the father and that he should pay an amount monthly for the child(section 3 of Ordinance No. 19 of 1889). Death of mother makes nodifference and another person may be appointed to represent the child,and draw the moneys on its behalf. The order under section 3 of theOrdinance is valid against the defendant unless such order is set asideor varied or becomes ineffective under section 6 or section 10 or section 8,All we ask is that this valid order be enforced. The principle that arrears-for past maintenance are not recoverable is applicable to the period beforethe parties come into Court. Ranasinghe v. Penis {swpra) refers to sucha period, and in particular held that under the Common law—apart from,the Maintenance Ordinance of 1889—no action lies to recover past mainte-nance prior to the date of coming into Court. It has been held thatarrears of past maintenance are recoverable from the date of the grant-of maintenance by order of Court, on the footing that it is merely an*,enforcement of the order or decree of a Court. (Valliammai v. Sanmugam1.)
Section 5 of the Poor Law Act is different from our law and the noteto 2 Hals. 442, s. 753 is explainable on the footing that the personappointed, not having expended any moneys on the bastard before hisappointment, is therefore not entitled to recover the arrears. The note is^not justified in any other sense. To permit a presumption as suggestedin 13 N. L. R. 23 and 25 is to permit the defendant to take advantage-of his own default.
Soboni’s Criminal Procedure> Code, 2nd ed.y p. 1195, s. 71, says that thegrant of arrears of maintenance is discretionary in Police Magistrate.If so, the Appeal Court will not interfere.
' Counsel also referred to 1 Nathan, p. 107, note (1907 ed.).
September 9, 1931. Macdonell C.J.—
In this case the appellant, respondent below, appeals against amaintenance order under section 3 of Ordinance No. 19 of 1889, underthe following circumstances.
In May, 1922. the Magistrate made an order against the present appel-lant to pay Rs. 12.50 per mensem for the maintenance of bis illegitimatechild. The order was treated as being one to pay this amount into’Court each month, and the mother of the child used to apply to theCourt at intervals to take out the sums paid in by appellant under theorder. But the order was clearly one in favour of, and for the mainte-nance of, the child. From the journal entries it appears that the presentappellant paid the Rs. 12.50 per mensem regularly enough up to aboutthe end of 1926, after which they ceased to be paid. In 1927 the motherof the child died and .the present applicant, her brother, looked after andmaintained with his own funds the child in whose favour the order hadbeen made. On July 27, 1930, the present applicant, as has been said,the uncle of the child and brother of its deceased mother, applied to theMagistrate of the Court from which the order of May, 1922, had emanated1 9 0, L. R. 161; and 203—P. C. Balapitiya, 6,520 of May 2S, 2928.
MACDONELIi C.J.—Gunesehere ©. Ahamath.243
to be substituted for the child's mother, deceased, as the person to receivemoneys -payable under that order, and the Magistrate made order substi-tuting him accordingly. Thereupon, the present appellant began againto pay into Court Es. 12.50 per mensem under the order of May, 1922,and he does not, as 1 understand, dispute his liability to do so. But theapplicant—the substituted applicant as one may call him—had appliedto the Magistrate for payment of the arrears at Es. 12.50 per mensemsince the last payment under the order which had been made as hasbeen said, about the end of 1926. On May 29, 1931, the Magistratemade the following order: —
Vtde order delivered. Substituted applicant to recover by-execution all arrears up to October 31, 1930, in addition to dues there-after. These moneys not to be paid to substituted applicant but toremain to the credit of child and if the substituted applicant wanted to■draw from this fund he must submit a bill for consideration by Court/'It is from the order just quoted that the present appeal i*s brought.As a preliminary point, it was argued that this not being an appealagainst an order made under section 3 or section 14 of the Ordinance*the present application to the Court would not lie as an appeal, though,■at the same time, it was conceded that the Court could revise the Magis-trate's order of May 29, 1931, under its powers of revision {Mariapillai-v. Savarimuttu1 and Isabelahamy v. Perera2). As at present advised,I prefer to deal with this application as one in revision, and not as anappeal.
Full and careful argument was addressed to me on this application, butI do not think that the order of the learned Magistrate should be interfered■with. He had before him a valid order, that of May, 1922, in favour ofthe child. I emphasize these last words, since it was argued that theoriginal order of May, 1922, was one in favour of the then applicant,the mother, and that the order now under review is one in 'favour of thesubstituted applicant, that therefore it is not the original order but adifferent and new one which the Magistrate had no power to make. I donot think so. The person in whose favour the order of May, 1922, wasmade was the child. There may now be a different person to be re-sponsible for the expenditure of the money paid or to be paid under theorder whether we call that person agent or curator or trustee, but theperson in whose favour the order was made was the child; were it not so,it might be argued that whenever an orderis made- forso muchper
mensem for maintenance of achild but suchmoney tobereceivedand
■expended by someone else, thisis an order infavour notofthe childbut
of that somebody else. If theorder of May,1922, wasinfavour ofthe
ehild, then the order of the Magistrate now under revision is simplya direction with regard to a subsisting order, and not a new ordifferent order.
The right to recover arrears on a subsisting order under section 3 ofthe Ordinance seems undoubted (Valliammai v.* Sammugan3). See alsode Silva v. Fernando4. Here the substituted applicant is asking for
1 14 N. L. R. 244.* 3 C. W. B. 294.
* 9 C. L. R. 161.« 32 N. L. R. 71.
244
MACDONELL C.J.—GuneseVere e. Ahamatk.
arrears due under a subsisting order, and oil the authority of the oasein 9 C. L. R. 161, with which decision I respectfully concur; I seeno answer to his claim.
The order is a subsisting order, and this distinguishes the presentmatter from the point raised and decided in Ranansinghe v. PeirisThat was an action not under the Ordinance No. 19 of 1889 but atCommon law, not to recover anything due under a subsisting orderbut to establish a right to maintenance for certain years past and torecover maintenance for those years past. The Court (Middleton A.C.J.and Pereira J.) held the action not maintainable, but it will be seen thatthe facts in that case are quite different from- those in the present matter.Apart from that case not being a proceeding under the Ordinance at all,it was not an action for arrears of maintenance which had accrued due-from time to time under a subsisting order of Court but an action toestablish the fact that maintenance was due and demandable duringa certain past period and then to obtain an order for payment of that'maintenance, liability to pay which had now for the first time beenestablished. I would quote from Pereira J. in that case at page 25: —“ with regard to children, there is more – distinct authority in thetext-books. I need only refer to one of them. Van Leeuwen laysdown in the Censura Forensis (1, 1, 10, 1), and repeats later in hisCommentaries (1, 13, 1, 3, 7), that to the obedience and filial respectwhich children owe to their parents corresponds the duty of parentsto their children to afford a good education and such support as iscompatible with their means to those children who cannot supportthemselves, and this duty they may be compelled to perform nisiex bonis- suis adventitiis aut artificio aliquo ipsi semet alere possint.
Thus, a father, he proceeds, is not bound to support a son who haslearnt to support himself without assistance, or, as the saying is ‘ tofloat by his own cork ■ From the above it is clear that a father isnot bound to support his child who is supported by means of propertyderived from others or by some handicraft.”
The words in Latin in the passage quoted from are from Van Leeu-wen’s Censura Forensis. The corresponding passages in his Commen-taries (Book I, Chapter 18, Section 7) read in Kotze’s English translationas follows: —
“ In return for the paternal power and the duty which the childrenowe their parents, there are the education and support due to thechildren from their parents, according to their means and condition inlife, which may be lawfully required of them; except where the childrenare able to support themselves by some trade or handiwork, or someproperty has been derived or acquired by them from third parties,the fruits whereof may be expended towards their maintenance ”,
practically to the same effect as the passage recited above from theCensura Forensis. But I do not think that either of these passagesgoes so far as to suggest that a child would be disabled from obtaininga maintenance order against its father or, as is the present matter, fromobtaining arrears under a subsisting maintenance order against its
1 13 N. L. R. 21.
Weerasinghe v. Mohamadu Ismail.
245
father, because it was for the moment being, or had for the period,,wholly, or in part, for which it asked the arrears been, maintained bythe charity of a third person. Charity is not bona sua adventitia orsomething ex artificio aliquo, nor is it “ property derived or acquired bythe child from third parties Apparently in Roman-Dutch law thechild must have means of support in its own right, either its ownearnings or the income of property of its own, to enable the father to resistan application for its maintenance. For us, however, the point isdecided by the words in section 3 of the Ordinance which talk of a child“ unable to maintain itself I think these words are in agreement withthe Common law as set out above. But in any case, whether these*words in section 3 agree with the Common law -or not, they are now thelaw on the matter, and a child which is dependent on charity cannotbe said to be “ able to maintain itself * I have cited these passagesand discussed this point at length because in the course of argumentI may have used expressions not . quite in harmony with 'those passages-or with section 3 of the Ordinance.
I see no reason to think the order of the Magistrate wrong, and theapplication to revise it must be refused.
Appeal dismissed.