108-NLR-NLR-V-62-MRS.-S.-V.-FERNANDO-Appellant-and-J.-R.-I.-FERNANDORespondent.pdf
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TAMBIAM, vT.—Fernando v. Fernando
1961Present :Tambiah, J.
MRS. S. V. FERNANDO, Appellant, and J. R. I. FERNANDO,
Respondent
S. C. 1031—1VI. C. Kandy, 0575
Maintenance Ordinance—Section 2—Application made by tcife for maintenance—Assessment of stun payable by h-usbatul—Means of it'ifc should not be considered.-—Married IVomen's Properly Ordinance, s. 26.
Tho Court should not take into account tho means of the wife when fixingtho rjuantiun of maintenance payable by tho husband under section 2 of tho.Muintonanco Ordinance.
A PPEAL from-'a judgment of the Magistrate’s Court, Kandy.
D. R. P. Goorietillelcc, for the Applicant-Appellant.
G. Candappa, for the Defendant-Respondent.
Cur. adv. vult.
February 28, 1961. Tambiaii, J.—
The only question that arises in tliis case is whether the Court shouldconsider the wife’s means in fixing the quantum of maintenance payableby the husband. The Magistrate states in his order dated, 14.10.59,as follows : “ The defendant is prepared to pay without prejudice to hisrights, a suui of Rs. 30 per month, as maintenance to his wife. He getsan income of about Rs. 330 per month as a stenographer in the Rank ofCeylon, Kandy. This is admitted and it is also admitted that the appli-cant gets an income of a similar amount as Secretary of the Girls’ FarmSchool, Kundasale. In these circumstances the question of maintenancebecomes merely a question of the enforcement of a legal right by the wife.
I would fix the maintenance at Rs. 30 per month, as from today.
The amount is fixed at Rs. 30 after I have given consideration to the factthat she herself is earning an income ”.
It was contended by the Counsel for the applicant-appellant that thelearned Judge has misdirected himself in taking into account the incomeof the wife in fixing the quantum of maintenance payable to her by thehusband.
Section 2 of tho Maintenance Ordinance reads as follows :“If any
person, having sufficient means neglects or refuses to maintain his wife,or his legitimate or illegitimate child unable' to maintain itself, thoMagistrate may upon the proof of such neglect or refusal, order suchporson to make, a monthly alio waned'for the maintenance of his wife or
TAJvnBIAM, J.—Fernando v. Fernando
651
such child at such monthly rate not exceeding one hundred rupees, asthe Magistrate thinks fit, and to pay the same to such person as the Magis-trate may from time to time direct. Such allowance shall be payablefrom the date of the order ”.
The provisions of section 2 of the Maintenance Ordinance have beenauthoritatively interpreted by a Divisional Bench of the Supreme Courtin Sivasamy v. JRasiah1. It was held in that case that a wife who ispossessed of means is entitled to claim maintenance from her husbandprovided ho has sufficient means himself. Soertsz, S.P.J., after citingsection 2 stated as follows, at p. 243 :
“ These words, correctly interpreted, can only mean that while theright of children to maintenance depends on both their inability tomainta4tt–themselves and on the possession of sufficient means by’tlTefather, the right of the wife to maintenance is conditioned only on thepossession of sufficient moans 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 down in the section the words ofcontrast providing for an order of maintenance for “ hi£j&rife ” and for" such child ”. The word ” such ” is used as an adjunct to the word“ child ”, and not to the word “ wife ” in order to emphasize the factthat in the case of the child, inability to maintain itself is-one-ofltheconditions upon _w_hiclr—tire—father’s—liability—rests …. thewords of the section are clear and they must govern the question.While the word “ child ”, in its equivocation as to sex, makes theword “ itself ” the appropriate pronoun, to use that pronoun to referto the antecedent wife” would be to cast a thoroughly unwarrantedaspersion on a perfectly unambiguous sex … I read section 2 of theOrdinance as entitling a wife to maintenance in virtue of her wifehoodalone and to obtain it by proof that her husband has sufficientmeans ”.
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That case was remitted to the Magistrate so that he might fix suchmonthly allowance as he thought fit, having regard to the means of thehusband.
I am bound by the above ruling of the Divisional Bench that themeans of the wife should not be taken into account in ordering mainte-nance. It follows that a Judge cannot take the wife’s means intoaccount in fixing the quantum of maintenance which the husband hasto pay. If, however, he is in indigent circumstances he would not beliable to pay maintenance. But if he is possessed of sufficient meansand it is proved that he has neglected or refused to maintain his wife,then in fixing the quantum only the means of the husband should betaken into account.
Counsel for the defendant argued that since section 26 of MarriedWomen’s Property Ordinance casts a liability on a wife, who has means,to support a husband in indigent circumstances, the Legislatureintended that the wife’s means should be a factor in determining the
{1943) 44 N. L. It. 241.
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TAMBIAH, J.—Fernando v. Fernando
am aunt of maintenance she is entitled to in the circumstances specifiedin section 2 of the Maintenance Ordinance. But these two sectionscontemplate two entirely different situations, and the interpretationplaced on section 2 of the Maintenance Ordinance in Sivasamy v.Rasiah (supra.) in no way conflicts with section 26 of the MarriedWomen’s Property Ordinance.
The learned Magistrate in this case has erred in taking the applicant-appellant’s income into acoountin assessing the amount of maintenancepayable to her at Rs. 30.
Having regard to the income of the defendant-respondent, I orderhim to pay as maintenance to his wife a monthly sum of Bs. 60 fromthe date of the Magistrate’s order. Accordingly I allow the appealwith costs.
Appeal allowed.