105-NLR-NLR-V-56-M.K.-AMBALAVANAR-et-al-Appellants-and-A.-NAVARATNAM-Respondent.pdf
422
Ambalavanar v. Navaratnam
1955Pment ; Sanson! J.
M. K. AM BALA VANAR et al., Appellants, andA. NAVARATNAM, Respondent
S. C. 63—C. E. Kayts, 7,156
Maintenance—Destitute parent—Riijht to maintenance from children.
The Roman Dutch Law rule that children are liable to support their parentswho are in indigent circumstances obtains in Ceylon.
.^^.PPEAL from a judgment of the Court of Requests, Kayts.
Rznganalhan, for the plaintiffs appellants.
No appearances for the defendant respondent.
Cur. adv. vult.
SANSONI J.—Ambalavanar v. Naoaratnain
423
April 6, 1955. Sansoni J.—
The two plaintiffs are the parents of the defendant, who is their eldestson. Admittedly the defendant has not been maintaining the plaintiffs,and in tliis action they plead that they are in indigent circumstances andusk that the defendant be ordered to pay them a monthly sum for theirmaintenance. Several issues were framed at the trial but the learnedCommissioner dismissed the action on the purely legal ground that inCeylon today a child is under no legal liability to maintain his paronts.He held that there is no evidence that such a liability was ever part of thelaw of Ceylon, even though the authorities cited at the trial seemed toestablish that such a liability existed under the Roman Dutch Law.
I think the first question to be decided is whether under the RomanDutch Law children are liable to support their parents who are in indigentcircumstances. It is enough to quote from the judgment of Tindall, J. A.,in Oosthuizen v. Stanley 1—“ The liability of children to support theirparents, if these aro indigent (inopes), is beyond question ; see Voet 25.3.8;van fjeeuioen Cens. For. 1.10.4. The fact that a child is a minor doesnot absolve him from his duty, if he is able to provide or contribute to therequired support ; see In re Knoop (10 S. C. 198). Support (alimenta) in-cludes not only food and clothing in accordance with the quality andcondition of the persons to be supported but also lodging and care in sick-ness ; see Voet 25.3.4, van Leeuwen, Cens. For. 1.10.5 ; Brunnemann, inCodicem 5.25. Whether a parent is in such a state of comparative indi-gene y or destitution that a court of law can compel a child to supplementthe parent’s income is a question of fact depending on the circumstances ofeach case. I find, in an old Scottish case quoted by Fraser (Parent andChild, 3rd ed. p. 137) and in Green's Encyclopaedia of Scots Law (vol.
,p. 300), that a widow having an annual income of £60 was held to be notentitled to claim additional aliment from a son who had an income of£1,500 a year. No doubt the higher value of money 80 years ago was animportant factor in the failure of the parent’s claim in that case. However,though each case must depend on its own peculiar circumstances, thatdecision supports tho view, I think, that the parent must show that, consi-dering his or her station in life, he or she is in want of what should,considering his or her station in life, be regarded as coming under thohead of necessities. It must also be mentioned that a parent is not entitledto claim support from a child if the parent is able to maintain himself byworking ; see 2 lloll. Cons. No. 279." Van Leeuwren says in the passagereferred to "As children are entitled to support from their parents, so alsoaro paronts ontitled to be supported by their children who aro in wealthycircumstances. I say, by their children who are in wealthy circumstances,for children who are in povertyarenot bound to support theirparents. Sothat thoro is hetwoon relatives in tho ascendant and descendant lines aninherent duty of mutual support ”._
Several other eases to the same effect have been cited in Spiro’s Law ofParent and Child (1950), page 247 and the learned author comments :—" The duty of support prevailing between parents and children may,therefore, be said to be reciprocal, and here again South African Law
1 (1933) A. D. at jwje 327.
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SANSON! J.—AmbaAavanar v. Navaratnatn
differs from the Common Law in England and in the United States ofAmerica where neither parent nor child is bbdhcl to support the one orthe other”.••
The enactment of the Maintenance Ordinance, Cap. 70, has no bearing onthis matter since it does not purport to deal with the entire law of main-tenance but only with the maintenance of wives and children. The ab-sence of any reference in the Ordinance to the maintenance of parentsby thoir children therefore seems to be no argument at all. Bonser, C. J.,in Subaliya v. Kannangara1, Wood Renton, J., in Justina v. Arman 2, andSchneider, A. J., in Lamahamy v. Karunaratne 3 have taken the view thatthat branch of Roman Dutch Law which dealt with maintenance did forma part of the law of this Island while Ennis, A. C. J., in Lamahamy v. Karu-naratne 4 doubted if the Roman Dutch Common Law in this respect wasever introduced into Ceylon. Is the rule in question, then, part of the lawof Ceylon'?
Now the question as to how much of that system of law was importedinto Ceylon was considered in Samed v. Segutamby 4, where Bertram, C. J.said that the propositions that the Roman Dutch Law pure and simpledoes not exist in this country in its entirety, and that it is not the wholebody of Roman Dutch Law, but only so much of it as may bo shown orpresumed to have been introduced into Ceylon that is now applicablehere, do not apply to fundamental principles of the Common Law enun-ciated by authorities recognized as binding wherever the Roman DutchLaw prevails. ‘ ‘ Such principles ’ ’ he said, “ may in course of time becomemodified in thoir local application by judicial decisions, but it would beonly by a series of unbroken and express decisions that such a developmentcould take place ”. Jayawardene, A. J., in the same case, speaking of theRoman Dutch Law on the subject of damage by fire, used words which,
I think, are appropriate in this connection also :—“ But there is no deci-sion by which this Court has declared that the Roman Dutch Law on thesubject of damage by fire is inapplicable in this Colony by its being obso-lete or for any other reason. It is not a special or local law which is onlysuited to conditions in Holland and unBuited to local conditions. It is alaw of general application, and it cannot be suggested that it was notimported to Ceylon. This law is to be found in the works of institutionaland other writers on the Roman Dutch Law recognized in Ceylon andappealed to in the Colony upon all questions of Roman Dutch Law. Asthis Court Baid in 1835: ‘ If the right exists, it is not the less law becausehitherto suitors may not have thought it expedient to exercise it’ ”. Un-doubtedly the rule which requires children to maintain their indigentparents obtains in South Africa and I think it may be properly regardedas a fundamental principle of our Common Law. It is also interestingto find two cases decided in the District Court of Jaffna in 1803 reported inMutukisna’s Thesaioaleme p. 572, where parents who were in indigentcircumstances successfully claimed maintenance from their children. Inmy opinion the rule that children are liable to support their parents whoarc in indigent circumstances obtains in Ceylon.
1 (1899) 4 N. L. R. 121.
* (1908) 12 N. L. R. 263.
(1921) 22 N. L. R. 289.
(1924) 26 N.L.R. 481 at page 497.
NAGALJNGAM S.P.J.— Wateela Utnma v. Sally
426
I therefore set aside the order of dismissal and send the case back inorder that the parties may lead evidence on the other issues of fact andlaw already framed and any further issues which may be raised on thepleadings. The appellants are entitled to the costs of this appeal. Allother costs will abide the result of the action.
Order set aside.