083-NLR-NLR-V-22-LAMAHAMY-v.-KARUNARATNA.pdf
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[Full Bench.]
Present: Ennis A.C.J., Shaw J.,and Schneider A.J.
LAMAHAMT v. KARUNARATNA.
^230—D. C. Kalviara, 8,940.
Action /or maintenance o/ illegitimate child against administratrixof'father's estate^-Was Roman-Dutch law on die point introducedinto Ceylon t—Are aU claims for maintenance confined to theMaintenance Ordinance f
Per Ennis A.C.J. and Shaw J. (Schneider A.J. dissentients),—Since the enactment of the Maintenance Ordinance all applicationsagainst a husband or father for maintenance of his wife or children,legitimate or illegitimate, must be made under the provisions ofthat Ordinance.
Per Full Court*—Where plaintiff brought an action in theDistrict Court against the administratrix of the estate of G claimingmaintenance for an illegitimate child of G,—
Held, that no action lay.
facts appear from the judgment.
E. W. Jayawardene, for defendant, appellant.—The effect ofOrdinance No. 19 of 1889 was to do. away with all the Roman-Dutch law regarding maintenance. In Menikhamy v. Loku Appu1Bonser C.J. held that a wife had no right to bring a civil action formaintenance when deserted by her husband. This was followed byWood Renton J. in Perera v. Nonis,2 and later by Shaw and DeSampayo Jj. in Lebbe v. Natchie * The whole of the Roman-Dutchlaw. was not introduced into Ceylon. See Korosse Rubber Companyv. Silva.4, Under the Maintenance Ordinance it has been held thatthe legal representative was not liable (Dingitlo v. Appuhamy.*)There is notlnng in the Roman-Dutch authorities to support theproposition that the administrator of the estate of a deceased personis liable for maintenance. He is a different person fnph the heir asknown to the Roman-Dutch law. Counsel also cited jSankiri v.Kiri Hattem* Koch's Reports 35, 2 Halsbury 41)1, lk Halsbury305, Walter Pereira 175. -/
‘ F. de Zoysa (with him Croos-Dabrera), for plaintiff, respondent.—It is clear from Toet (XXV., 3, 5) that a civil aotiop was main-tainable for maintenance, and that such action could be brought
11 Bal. 161.4 (1917)20 N. L. R. 65.
> (1908) 12 N. L. R. 263.5 {1916)3 C. W. R. 64.
* (1918) 5 C.fw* F* 146. .• (1891)1 Ct. L. R. 86.
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24;
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1921. even against the heirs. See also Oroenewegen 34,1,15. Bankiri
v. Kiri Hattena1- has been questioned in Subaliya v. Kannangara2
Lamohamy wkere Bonser C.J. said that a civil action was competent, and thatKarunaratna the Ordinance only provides a “ speedier and less costly remedy."
It is submitted that the Maintenance Ordinance, No. 19 of 1889, doesnot do away with the Common law whibh is still in force. TheRoman-Dutch law relating to parent and child must be consideredto have' been introduced into the Colony, and the contrary cannotbe assumed without proof. The Vagrants Ordinance, 1841, merelymade it an>ffence not to maintain one’s children. Section 22 ofOrdinance No. 15 of 1876 says that a wife with separate property isliable to maintain her children as “a widow is now by law subject tofor the maintenance of her children.” This clearly contemplates theexistence in Ceylon of a Gommon law right regarding maintenance.Under the Ordinance of 1889 only a sum of Rs. 50 can be ordered asmaintenance. There may be cases where this is inadequate, and acivil action for a larger sum more appropriate. The passage fromVoet shows that the heirs may be sued. The administrator of thepresent day steps into the shoes of the heirs. Counsel also citedRanasingha v. Pieris?
Cur* adv. vuU.
February 16,1921. ^ Ennis A, C.J.—
The defendant-appellant in this case is the widow and adminis-tratrix of one Bastian Goonetilleke. The plaintiff-respondent isthe mother of a child, Omelis Nona, a girl of two years of age. Itis admitted that Omelis is the illegitimate child of Bbstian. Theaction was a civil suit to recover maintenance for the child from theestate of the deceased. The defendant raised two points of law,which were dealt with as preliminary issues. She contended that
the plaintiff could not maintain the action (as the only action formaintenance was the action under Ordinance No. 19 of 1889), and
that even if there were a civil remedy, it would not lie after thedeath of Bastian Goonetilleke.
, The learned Judge found in favour of the plaintiff on both points,basing his findings on the observations of Bonser C.J. in Subaliyav Kannangara2 The defendant appeals, and the points of lawhave been reserved for the decision of a Full Court.
I am of opinion that the appellant is entitled to succeed on bothpoints. I accept the finding of Bonser C.J. in Subaliya v. Kannan-gara2 and of Wood Renton J. in Justina v. Arman4 that in Roman-Dutch law a civil action for maintenance was available, but I doubtif the Roman-Dutch Common law in this respect was ever introducedinto Ceylon. The point does not appear to have been consideredin Subaliya v. Kannangara2 and in Justina v. Arman4 WoodRenton J. saidIt is sufficient to say that there is
1 (1891) 1 C. X, R. 86.fi (1899) 4 N. X. R. 121*
H1909) 13 N. L. R. 21.
* (1908) 12 JV. U R. 263.
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no proof that the Roman-Dutch lav as to maintenance was not inforce in the Colony at the tame of the British occupation, and that,in the absence of such proof, we have no right to assume thecontrary.” He also said: “ It has been held, and I think the
decision is right, that since the enactment of Ordinance No. 19 of Lam^amy1889 it is no longer competent for a woman to bring a civil action Kanuumtnain this Colony to recover maintenance for herself and her ohildrenas a debt due to her and them by the father (Menikhamy v. LokuAppu 1). The special rights and remedies created by the Ordinancemust be held to have superseded the Common law.”
In Jane Ranasingha v. Pieria2 which was an action for pastmaintenance, Pereira J. said in a judgment which reviewed all thecases: “ I would venture to observe that if suoh actions werecompetent under our Common law, it does not to my mind appearto be quite clear how the Maintenance Ordinance, in the absenceof express words to that effect, can be said to have brought abouttheir abolition.” And he went on to say: '* The polioy of modernlegislation is to prevent one’s wife and children becoming chargeableto others by allowing the wife and children a remedy against thehusband or father, as the case may be, in the Criminal Courts, andit is for a married woman to resort to that remedy, unless she iscontent to maintain herself at her- own expqpse. ’ ’
This judgment does not concede the point that a civil remedywas competent under the Roman-Dutch law as applied to Ceylon,and in the enumeration of remedies which a married woman has,no mention is made of any civil remedy.
In 1841 the Vagrants Ordinance, No. 4 of 1841, made it anoffence to leave a child without maintenance. In 1844 the WillsOrdinance (No. 21 of 1844) enaoted that a person could disposeof the whole of his property by will. In effect it abolished the“ legitimate portion ” which children could claim in the propertyof their parents. In 1876 the Matrimonial Rights Ordinance (No.
15 of 1876) enacted (section 22) that married women should beresponsible for the maintenance of their children; and in 1889 theMaintenance Ordinance (No. 19 of 1889) established rights andliabilities, and provided a criminal procedure for the recovery ofmaintenance from the father of a child.
This record of legislation does not, in my opinion, indicate thatthe Roman-Dutch civil remedy was available in Ceylon, and no casehas been cited to us in – proof that the action was competent.
Assuming for the sake of argument that it may have been available,then the Wills Ordinance reduced it to a personal action, which didnot extend to the heirs, and the Maintenance Ordinance with itsspecial procedure and the creation of a statutory liability (N.B.—A -liability which is personal in the absence of any express provisions
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'BknisA.C.J • j
1 (1S9S) 1 Sal. 161…
*(1909) 13 N. L. B. 21.
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applicable in case of death) must be held to have superseded the
■—remedies of the Roman-Dutch civil law.
A;C.JT. I would accordingly allow the appeal with costs, set aside the
——order appealed from, and dismiss the plaintiff’s action with costs.
Lamahamy
Karunaratna Shaw J.—
This is an action brought against the administratrix of one DonBastian Goonetilleko by the mother of an*illegitimate child of DonBastian claiming maintenanJb for the child.
The action is based on the liability on the heirs of the deceased,which is said to have existed under the Roman-Dutch law, tomaintain his illegitimate children.
In view of the opinion I have come to as to the existence of thisright, I need not discuss the question whether, if sudh an actionformerly lay against the heirs, it could now be brought against theexecutor or administrator.
The only authority for the existence of this liability seems to be apassage in Voet (lib. 25, tit. 3, 8. 5), wherff the jurist, after statingthe obligation of the father to maintain his children, legitimate orillegitimate, goes on to say that the liability extends to the father’sheirs.
The other old jurists appear to be silent as to any liability on thepart of the heirs. Thefe does not seem to be any record of such anaction ever having been brought in this Colony against the heirs or• personal representatives, either before or after the enactment of theMaintenance Ordinance, No. 19 of 1889.
It appears to me to be extremely doubtful whether the liabilitycontended for qver existed, but if it did, I am of opinion that it wasnever introduced into Ceylon.;
I still adhere to the view I expressed in Abdul Rahiman v.Pathumma Natchia,1 following the decision in Manikkamy v,Loku Appu 2 and the. opinion expressed by Wood Renton J. inAnna Perera v. Emaliano Nonis,8 that since the enactment of' the Maintenance Ordinance all applications against a husband orfather for maintenance of his wife or children, legitimate or illegiti-mate, must be made under the provisions of that Ordinance.
I would allow" the appbal, with costs.
Schneider A.J.—
I have had the advantage of reading the judgment of my Lordthe Acting Chief Justice before writing my own. I agree with himas to the order which should be made in this appeal, but I wouldallow the appeal on slightly different grounds. In my opinion thereis ample authority to support the proposition that that branch ofthe Roman-Dutch law which writers upon Roman-Dutch law treat
1 (1918) 6 C. W. R. 145.* (1898) 1 Bat. 181.
8 (1908) 12 N. L. R. 263.
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under the head of “ Parent and Child ” was recognized as the law1921,
of this Colony in so far as it was not excluded by any looal custom——
having the force of law or by any local legislation. Thomson in his
Institutes of the Lam of Ceylon, in his exposition of the law of-
Ceylon on the subject, takes over almost verbatim what VanTIeF
Linden states in *his Institutes of the Laws of Holland. The Kamnaratna
obligation on the part of a father to maintain his minor child,
whether legitimate or illegitimate, was well recognized in the Boman-
Dutch law. It falls within that brancbof it which is oalled " Parent
and Child,” and as that branch of it was recognized as the law of this
Colony, the inference necessarily follows that the obligation of the
father to maintain his child was also recognized as part of the local
law. It is an accepted doctrine $hat the Courts of Law in a country
exist for the purpose of enforcing legal rights. The liability of a
father to maintain his child being recoghized by the law, an action
to compel him tp perform that duty may be brought in any Court of
oivil jurisdiction, unless such Courts are precluded from exercising
jurisdiction by some special provision relating to the matter. There
is nothing in the Maintenance Ordinance, No. 19 of 1889, to indicate
that it was intended that the special procedure therein provided was
to preclude resort to any general procedure which might be available.
It seems to me therefore doubtful that* that Ordinance, with itslimitations, restrictions, and penal provisions, was intended to doanything more than provide a speedier, less expensive, and moresummary and rigorous procedure to recover maintenance. I amtherefore not convinced that the Ordinance No. 19 of 1889 wasintended to, or did in fact, abrogate the right of action in anordinaryCourt of civil jurisdiction to enforce payment of maintenance for achild.
On this part of this case I would cite t?too passages fromThomson, which, if I may say so respectfully, appears to sum up thelaw correctly. I would here mention that the attention of theCourt during the argument on appeal was not drawn to Thomson(1) “ Parents are legally bound to provide legitimate orillegitimate children with necessary maintenance where thechildren, of whatever age, are impotent and unable to work eitherthrough infancy, disease, or accident; but not when the childrencan support themselves. (2 Kerr’s Bl. 473-5; Ordinance No. 4 of1841, s.3 ; 27,015, P. C. Matara, August 10,1860; P. C. Ca. 144;
25,497, P. C. Jaffna, September 30, 1859.) Maintenance meanssupport, with food, clothing, and other conveniences. (23,022,
C. OaUe, May 6,1857 ; P. 0. Ca. 107.) This duty of mainte-nance is enforced against every person, in whole or in part, ableto maintain his family; and who leaves his legitimate (or illegiti-mate) children, whereby they become chargeable to, or require tobe supported by, others, is liable as an idle and disorderly person.
(No. 4 of 1841, s. 3, para. 2 and subsequent clauses.) But.this is a
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SOHNBXDBB
A.J.
Lamahamy
v-
Karunaratna
mere penalty fox an offence, and the Polioe Court cannot awardmaintenance (2,716 Harrispattoo, August 15, 1861; P. C. Ca. 153),nor order payment of arrears of maintenance. (33,407, P. C.Matara, June 26,1862 ; P. G. Ga. 169.) Parents may, however, beliable in a civil suit for the maintenance of their children, thoughnot at the suit of the children, who are generally minors, or, if not,
“ minors cannot sue unless by leave of the Court (F. Lum. 5, 3,s. 6, p. 523); but may be sued by the children’s guardians, ad litem,or others appointed by the Court in its equitable jurisdiction.”{Thomson’s Institutes of the Laws of Ceylon,” vol. 2, pages 44-45.)
(2) “ The father of an illegitimate child is not primarily in lawbound to support his illegitimate child, but if the mother cannotmaintain it, and the father fails to maintain it, so that it becomeschargeable to another, he is liable, as an idle and disorderly person,for not maintaining his child. (No. 4 of 1841, s. 3, p. 2; 25,497,P. C Jaffna, September 30, 1859 ; P. C. G. Ca. 134.) ” (Thomson’sInstitutes of the Laws of Ceylon, vol. 2, pages 47-48.)
The gist (A what he says is that parent^” are liable in a civil suitfor the maintenance of their children.”
. To my mind the plaintiff’s action fails for the reason that there isno reliable authority to support the proposition that the obligationof the father to maintain his illegitimate child exists after his deathor is enforceable in Ceylon against the legal representative of hisestate. The present action as framed does not disclose that theadministratrix has assets of the. estate to pay the maintenanceclaimed. But I will assume she has.
As I understand the matter, it is not clear that it was generallyrecognized even in the Roman-Dutch law that,the “ heirs ” of thefather upon his demise were under any obligation to maintain his.children. It is trufe-that Voet gives it as his opinion that the law didreoognize that extension of the father’s obligation, but thereis authority to the contrary. There being a conflict of opinions, andin view of the fact that there is not a single instance which can becited to prove that such a liability had been recognized in thisColony, it seems to me that the existence of such a liability in thisColony cannot be assumed or be said to have been recognized. In1884, by Ordinance all persons yere given an unfettered right ofdisposition of their property by last will, with the power in theexercise of- that right to exclude any persons -whatsoever from the“legitimate portion.” The “legitimate portion” was primarilyintended for the benefit of the legitimate children. It is not con-ceivable that the law having granted the liberty to deprive thelegitimate issue of any claim upon a man’s property would not haveremoved any fetter which may have existed for the benefit of theillegitimate issue.
Appeal allowed.