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Present: The Hon. Mr. J. P. Middleton, Acting Chief Justice,Dec.32,1909
and Mr. Justice Pereira.
JANE BANASINGHA et al. v. PIEBIS.
D. GKandy, 19,627.
Action for past maintenance by wife and child against husband and father—
An action far recovering past maintenance cannot be maintainedby a wife against her husband, nor by a child* against its- father,where they have been maintaining themselves from their ownearnings or property.
HE plaintiff?, appellants (mother and child), sued the defend-ant, respondent (father of the child), for recovering from him
the sum of Bs. 500 for past maintenance. They averred in theplaint that the defendant deserted them and refused to maintainthem, and that they were obliged to maintain themselves fromApril, 1907, to November, 1908. Judgment was entered for theplaintiffs.
The defendant appealed.
H. A. Jayewardene, for the appellant.—Plaintiffs cannot sue forarrears of maintenance. The Common Law right of action has beenabolished by the Maintenance Ordinance, No. 19 of 1889 (see Menik-hamy v. Loku Appu,1 Anna Perera v. Emaliano Nonis 2). The fullCourt refused past maintenance to a Kandyan wife (see Yadalagodav. Herat3).
Bartholomews z, for the respondents.—The Maintenance Ordi-nance deals with future maintenance only. The Common Lawright of action for past maintenance has not therefore been takenaway by the Ordinance. If Bonser C.J. held in Menikhamy v.
Loku Appu that the Common Law right of action for maintenancewas abolished, he has held in a later case that the civil action maystill be maintained by a child to recover maintenance from thefather (Subaliya v. Kanangara *).
Jayewardene, in reply, cited 1 Nathan 110-11 and 1 Maasdorp232.
Cur. adv. vult.
December 81, 1909. Middleton A.C.J.—
This was an appeal against an order made in an action broughtby a mother and minor child against the husband and father formaintenance previous to their action, holding on an issue of law
1 (1898) 1 Bal. 161.
* (1909) 12 N. L. It. 287.
8 (1879) 2 S. C. C. 33.
8 (1899) 4 N. L. R. 121.
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Dec. 31,1909 whether the plaintiffs can maintain the action that such an actionMtodleton can be maintained. It was contended for the appellant that the
O.J. case was governed by the decision in Menikhamy v. Loku Appu,1Jane Sana- approved of by Wood Renton J. in Anna Perera v. Emaliano Nonis,3singha v. and we were referred to 1 Nathan 110-111, founded on Voet 25, 3, 15,Piena an(j j Maasdorp 232.
Menikhamy v. Loku Appu was an action for past and presentmaintenance by a deserted wife, and the Court held there that theplaintiff’s rights were governed by Ordinance No. 19 of 1889, andthat no civil action lay for maintenance. On the other side wewere referred to 2 8. G. G. 33 and 4 N. L. R. 121 as supporting sheview adopted by the learned District Judge. In 2 8. C. C. 33 aKandyan woman was awarded future maintenance pending deser-tion, but not granted past maintenance, by a judgment of the FullCourt. In 4 N. L. R. 121 Bonser C.J.■ appeared to think that themother could, on behalf of the child, compel the performance of theduty of maintenance by a civil action, for which Ordinance No. 19of 1889, founded on this civil liability, provided a simpler remedy.The dictum of the Chief Justice did not, I think, refer to pastmaintenance.
Under the English Law neither a child nor a wife has a CommonLaw right enforceable by legal proceedings to be maintained byfather or husband (Bageley v. Fordew,3 per Cockbum C.J.). Theirrights to maintenance depend on Statute Law. Under the Roman-Dutch Law a father is liable to support his children where theyhave not sufficient means for their own support (Nathan, vol. 1.. 107,founded on Voet 25, 3, 5). If the father is too poor and the motherhas means, she may be called on to do so (Nathan, vol. /., 103;Voet 25, 3, 6).
There is no obligation to support if the children can maintainthemselves sufficiently from what they have already received fromtheir mother or other resources (Nathan, vol. I., Ill; Voet 25, 3, IS).But children could not proceed at law against their parents „xceptwith the leave of the Court, which was termed venia agendi (Pereira,vol. II., 68, founded on Van der Linden 1, 4, 1).
In none of the Roman-Dutch text books to which I have access,including Van der Linden, Grottos, Van der Keesel, Nathan basedon Voet, and Van Leeuwen, can I find it distinctly laid down thatthe husband is liable to maintain his wife, but the doctrine of com-munity which applies to the case even of a wife not possessing anyproperty of her own (Nathan, vol. I., 230; Voet 23, 2, 64, 70) impliesthat the husband is bound to maintain his wife, as Mr. WalterPereira in his book (vol. II., 150) opines, so long as she remainsfaithful to the marriage vows. A claim for maintenance, of course,implies that the claimant has no means of her own.
1 (189$) 1 Bal. 161.» (1909) 12 N. L. R. 267.
* (1868) L. R. 3 Q. B. S59.
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This is the Common Law applicable to children and wives, which -Pec. 31,1909was supplemented by the Vagrants* Ordinance, No. 4 of 1841, and Meddustonagain by Ordinance No. 19 of 1889. This latter Ordinance only A.C.J.contemplates maintenance being granted from the date of the order, jamBatn-section 3.singhav.
In the present case we have a wife and child, apparently Low-country Sinhalese, suing* for past maintenance, and thereforesubject to Roman-Dutch Law. Their plaint does not disclose thatthey have been compelled to borrow money to maintain themselves,and the presumption is that either the mother herself, or she ’ throughher child, have had the means to do it.
Under these circumstances, I feel constrained to hold, thoughwith some hesitation, that a mother and child cannot maintain acivil action against their husband and father for past maintenance,and I would, set aside the judgment of the District Judge and dismissthe action in the District Court. I think each side should pay itsown costs in both Courts under the circumstances of the claim.
The first plaintiff is the mother of the second plaintiff and wife, ofthe defendant. The two plaintiffs—mother and son—aver in theirplaint that the defendant deserted them and refused to maintainthem, and that they were obliged to maintain themselves. Theysay that they estimate the cost of maintaining themselves at Rs. 25per mensem, and claim from the defendant the sum of Rs. 500 assuch cost from April, 1907, to November, 1908. The plaint certainlyis open to the construction that; the first plaintiff maintainedherself, while the second plaintiff maintained himself. If that is so,or, what is more likely, the second plaintiff being a mere child, if thefirst plaintiff maintained herself, and the second plaintiff was main-tained by means of his own property by somebody else, thereclearly is a misjoinder of parties and causes of action. The DistrictJudge thinks that the joinder of plaintiffs in the present action isjustified by section 11 of the Civil Procedure Code, but it is only'where the cause of action is the same that joinder is permitted underthat section. Here the cause of action upon which the first plaintiffbases her claim is the desertion of her by the defendant and failureon his part to maintain her, and the second plaintiff declares on asimilar cause of action affecting him only. Be that as it may, themain question to be decided is as to the right of each plaintiff tomaintain-an action for past maintenance.
It has been said that the only remedy open to a wife or child whohas been left without maintenance by the husband or father, as thecase may be, is to institute proceedings in the Police Court to compelhim to maintain the complaining party. On the question hereinvolved decisions and dicta of Judges of this Court have been cited,which (mfortunately are not distinguished by the merit of uniformity.
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Dec. 31,1909 The case of' Yadalagoda v. Herat1 was an action for both past andPkreira future maintenance. By the latter expression I mean maintenance
J. since the date of action. The claim for past maintenance was dis-Jane Sana- allowed because the plaintiff had been maintained by her parents,nngha v. but a decree condemning the defendant to pay the plaintiff a certainPterU sum mont]ily for future maintenance until he received her into hishouse and maintained her there was allowed. Menikhamy v. LokuAppu 2 was also an action for past and future maintenance. Theclaim was disallowed, Bonser C.J. observing: “ Since me passing ofOrdinance No. 19 of 1889 the proper course for a non-Christian wifewho is deserted by her husband is to go to the Police Court for. anorder under the Ordinance.” It is not clear why the observationis confined to the case of a non-Christian wife. In the same case,with reference to the case of Yadalagoda v. Herat, Withers J.observed as follows:“ With the greatest possible deference to the
learned members of this Court as then composed, I have never beenable to understand the judgment relied upon by the learned DistrictJudge.” Then, in Subaliya v. Kanangara 2 Bonser C.J.. appears to.have favoured the view that under the Boman-Dutch Law a fathermight by civil action be compelled to perform the duty of main-taining his child. That apparently had reference to future main-tenance; and in Justina v. Arrnon * Mr. Justice Wood Bentonthought that it had been rightly held in Menikhamy v. Loku Appu,that since the commencement of Ordinance No. 19 of 1889 it was nolonger competent for a woman to bring a civil action to recovermaintenance for herself and her children as a debt due to her andthem by the father.
I would venture to observe that if such actions were competentunder our Common Law, it does not to my mind appear to be quiteciear how the Maintenance Ordinance, in the absence of express wordsto that effect, can be said to have brought about their abolition.In the cases cited above, no claim for past maintenance wouldappear to have been allowed, whereas in two of the cases therewould appear to be some recognition of a right to maintain an actionfor what may be called future maintenance. It seems to me that itwill be difficult to formulate, under our present rules of procedure,an effectual decree to secure to a wife or child future maintenance,except, of course, under the chapter of the Civil Procedure Codedealing with matrimonial actions. In the present case, however,we are not concerned with claims for future maintenance. Tbsquestion is whether an action is permissible under our Common Lawfor past maintenance.
To take the case of married women first. I see it laid down in, anold case (Vkko v. Tambya *) decided by Creasy C.J. and Thomson J.,that the husband by the marriage contract takes upon himself the
1 (1879) 2 S. C. C. 33.2 (1899) 4 N. L. R. 121.
* (1898) 1 Bal. 161.* (1909) 1 Cur. L. R. 120-123.
« (1862-1868) 1863 Ram. 70.
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duty of supporting and maintaining his wife so long as she remains -Pec. 31, 1909faithful to her marriage tow; but I am not aware that it is definitely pmm»stated anywhere in the recognized text books that a husband is A-J-bound to maintain his wife, although what amounts to very much jane Rana-
the same thing is to be found stated with sufficient clearness, namely,that a wife may bind herself and her husband by means of trans-actions in connection with the management and conduct of thedomestic establishment (see Grot. Intr. 1, 5, 23; Voet 23, 2, 44-46).
A wife may thus render her husband liable to third parties for herown maintenance. Of course, there is nothing to prevent herfrom maintaining herself by means of her own -property, and I amnot aware that if she does so there is authority to show that shemight have her own loss recouped by means of an action againsther husband.
The policy of modem legislation is to prevent one’s wife andchildren becoming chargeable to others by allowing the wife andchildren a remedy against the husband or father, as the case may be,in the Criminal Courts, and it is for a married woman to resort tothat remedy, unless she is content to maintain herself at her ownexpense.
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 Gensura Forensis (1, 1, 10, 1), and repeats later in hisCommentaries (I, 13, 1, 3, T), 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,
“ to float by his own cork.” From the above it is clear that a fatheris not bound to support his child who is supported by means ofproperty derived from others or by some handicraft. This does not,
I take it, mean that a father may deliberately leave a minor childunsupported because it has property of its own, but it is, I think,sufficient authority for the proposition that where, without recourseto the father, the mother or some other person supports a child bymeans of the property of the child itself, the father’s civil liabilityis suspended. It is further stated in the Gensura Forensis (ibid,,section 3) that when the means of one parent are insufficient, theburden of support and education passes entirely to the other.
I think that the judgment should be set aside, and the plaintiffs’claim dismissed. I agree to the order proposed by the Chief Justiceas to costs.
JANE RANASINGHA et al. v. PIERIS