012-NLR-NLR-V-69-H.-EDIRIWEERA-Appellant-and-K.-A.-D.-DHARMAPALA-Respondent.pdf
Ediriweera v. Dharmapala
4 ft
Present: Alles, J.
EDIRIWEERA, Appellant, ami K. A. D. DHARMAPALA,
Respondent
S. C. 19S/1965—HI. C. Tangalla, 31-343
Maintenance Ordinance (Cap. 01)—Section 2—Maintenance of a child-—Liability ofthe father—Means of the mother has no relevancy.
In determining the quantum of maintenance payable by the father in respectof his child under section 2 of the Maintenance Ordinance, the fact that themother is possessed of means is not a factor that should be taken intoconsideration.
46
ALLES, J.—Ediriureera v. Dharmapala
-A-PPEAL from a judgment of the Magistrate’s Court, Tangalla.
Ananda Karunatilleke, for the applicant-appellant.
R. L. N. de Zoysa, with Miss C. M. M. Karunaratne, for the defendant-respondent.
Cur. adv. vult.
November 29, 1965. Axles, J.—
The only question that arises for consideration in this appeal is whetherin law, the means of the mother is a factor that should be taken intoconsideration in determining the quantum of maintenance payable bythe father in respect of his child.
The applicant who is the mother of the child Rohitha, aged 2 years,claimed a sum of Rs. 100 as maintenance in respect of the child. At thetermination of the inquiry, the Magistrate came to the conclusion that“ a fair estimate of the amount necessary per month for the maintenanceof the child would be about Rs. 40 or Rs. 45 The mother was a FirstClass trained teacher and she stated in evidence that the amountshe received into her hands monthly was Rs. 260. The defendant, thefather, was a clerk employed at the Kalutara Kachcheri and he statedthat his salary and other emoluments amounted to about Rs. 350 permonth. In his order, the Magistrate said that “ taking into considerationthe respective circumstances of the two parties, the defendant should paya sum of Rs. 30 per month by way of maintenance in respect of the childand that any balance necessary should be contributed by the applicant.”Counsel for the applicant states that his client does not grudge making anypayment for the maintenance of her child, and that she is quite willingto maintain the child; he contends however that the Magistrate in makingthe order of maintenance against the defendant has misdirected himself inlaw in taking into account the means of the mother and thereby reducingthe maintenance paj'able by the defendant to Rs. 30 per month.
In arriving at the conclusion that there was an obligation on a motherwho had sufficient means to maintain her child to provide a share of themaintenance, the Magistrate has proceeded on the acceptance of twopropositions of law: firstly, that the Roman-Dutch law recognised a dutyon the parents to legally provide for the maintenance of their children andsecondly, that the Roman-Dutch law on the subject has not been modifiedby the provisions of the Maintenance Ordinance. According to the learnedMagistrate, in an order for maintenance, it is open to him to consider themeans of both parents before deciding on the quantum of maintenancepayable by the father of the child.
AXLES, JEdiriweera v. Dharmapala
47
In support of the first proposition, the learned Magistrate cites a dictumof Wood Renton, J.(as he then was) in Luciya v. XJkkuKira 1, the dissen-ting judgment of Schneider, A.J. in the Divisional Bench case of Lama-hamy Karunaratne2, and some passages from the Commentaries of VanLeeuwen quoted by Pereira, A.J. in Jane Ranasinghe v. Pieris 3 andMacdonnel, C.J. in Gunesekere v. Ahamath1. It would appear from thesecitations that under the Roman-Dutch law both parents had a duty tomaintain their children and consequently, if the mother had means of herown, she was not exempt from providing a share of the maintenance. Acritical examination of the Roman-Dutch law on the subject is howeverunnecessary because the more important question for decision is whetherthe Roman-Dutch law in regard to the maintenance of children has beensuperseded by the Maintenance Ordinance of 1889. Although the earlydecisions of the Supreme Court (Subaliyav. Kannangara 5, Anna Pererav. Emaliano Nonis °, Jam Ranasinghe v. Pieris (supra)), appear to havetaken the view that the Roman-Dutch law of maintenance has not beenabrogated by the introduction of the Maintenance Ordinance, it is nowsettled law after the Full Bench decision in Lamahamy v. Karunaratne(supra) that all applications for maintenance must be made under theprovisions of the Ordinance. Ennis, A.C.J. in that case, after reviewingthe earlier authorities came to the conclusion that “ the MaintenanceOrdinance with its special procedure and the creation of a statutoryliability must be held to have superseded the remedies ofthe Roman-Dutchcivil law. ” Shaw, J. agreed with, this view and held that “ since the enact-ment of the Maintenance Ordinance all applications against a husband orfather for maintenance of his wife or children, legitimate or illegitimate,must be made under the provisions of the Ordinance. ” Schneider, A.J.however, in his dissenting judgment was c: not convinced that theOrdinance No. 19 of 1889 was intended to, or did in fact, abrogate theright of action in an ordinary Court of civil jurisdiction to enforce paymentof maintenance for a child. ” Macdonell, C.J. in Gunesekere v. Ahamath(supra) in construing the words “ unable to maintain itself ” in section 3(presently section 2) said that “ whether these words agree with theCommon law or not, they are now the law on the matter, and a child whichis dependent on charity cannot be said to be “ able to maintain itself”.Therefore the question whether the Roman-Dutch law recognised a dutyon both parents to maintain their child is now only of academic interestsince by virtue of the decision in Lamahamy v. Karunaratne, the Roman -•Dutch law of maintenance has been swept away and the law as it standstoday is governed by the provisions of the Maintenance Ordinance.
Therefore the only matter that now arises for determination is whetherunder the provisions of section 2 of the Maintenance Ordinance, theliability of the father to maintain his child is in any way affected by thefact that the mother has means to support it. Although this question hasnot been authoritatively considered up to date, there are some useful dicta
1 (1907) 10 N. L. B. 225 at 220.* [1931) 33 N.L.B. 2*1 at 244.
(1921) 22 N. L. B. 289 at 293.* (1899) 4 N. L. L. 121.
(1909) 13 N. L. B. 21 at 26.• (1908) 18 N. L. B. 203.
48
ALLES, J.—Ediriweera v. Dharmapala
in the Divisional Bench case of Sivasamy v. Rasiah 1 which seem to takethe view that the means of the mother has no relevancy to the question ofthe father’s liability to maintain his child. In Sivasamy v. Rasiah thequestion that arose for decision was whether the ability of the wife tomaintain herself was a factor which affected the quantum of maintenancepayable by the husband. Socrtsz. S.P.J. who delivered the order of theCourt analysed the provisions of section 2 in so far as it affected the wifeand stated as follows :—
" These words, correctly interpreted; can only mean that while theright of children to maintenance depends on both their inability tomaintain themselves and on the possession of sufficient means by thefather, the right of the wife to maintenance is conditioned only on thepossession of sufficient means by the husband and is not affected by thefact that she has sufficient means of her own. That conclusion emergesall the clearer when we read further dow n in the section the words ofcontrast providing for an order of maintenance for ' his wife ’ and for' such child' : The word‘ such ; is used as an adjunct to the word' childand not to the word ' wife ' in order to emphasize the fact that in thecase of the child, inability to maintain it self is one of the conditionsupon which the father’s liability rests. "
In this passage, the learned Judge recognised that the liability of thelather to maintain his child was conditioned by two factors : firstly,the possession of sufficient means by the father, and secondly, the inability<>f the ch ild to maintain itself. Tire means of the mother has no bearingwhatsoever on these two distinct and separate factors. I wouldrespectfully agree with the interpretation of section 2 as understood bySocrtsz, S.P.J. and hold that the fact that the mother was possessed ofmeans to maintain the child is a totally irrelevant consideration in so faras the legal liability of the father is concerned to maintain his child. Ifthe law requires that the means of the mother is not a matter that shouldhe taken into account in determining the quantum of maintenancepayable by the husband in respect of his wife, there seems to be no validreason why such a legal burden should be cast on an affluent mother inthe case of her child for whose welfare and maintenance the father aloneis responsible.
I am therefore of the view that the Magistrate has come to an erroneousconclusion on the law. Since the Magistrate has held that a fair estimateof the amount necessary for the maintenance of the child, Rohitha,would amount to Rs. 40 or Rs. 45, I alter the quantum of maintenancepayable by the defendant from Rs. 30 to Rs. 42 50 per mensem andallow the appeal with costs.
1 (1943) 44 N. L. R. 241.
Appeal allowed.