SRI SKANDA RAJAH, J.—Sathaaivam v. Manickaratnam
T962Present:Sri Skanda Rajab, J.
P.SATHASIVAM, Appellant, and V. MANICKARATN AM, RespondentS. C. 51011962—M. G. Kalmunai, 4625
_Maintenance—Application by wife—Husband's offer to wife to come and live withhim—Requirement of bona fides—Quantum of maintenance—Means of wifenot relevant—Maintenance Ordinance (Gap. 91), ss. 2, 3, 4.
kludge—Power to intervene and question a witness.
Where a husband, on being sued by his wife for maintenance, offers to main-tain the wife on condition of her living with him, the Court must considerwhether the offer is made bona fide. If the offer is not genuine, the defendantis liable to pay maintenance.
The income of the wife should not be taken into acccount when maintenanceis awarded to her under section 2 of the Maintenance Ordinance.
The position of a Judge, when he hears a case, is not merely that of an umpire.When a witness gives palpably false evidence, it is open to the Judge tointervene and make the witness speak the truth.
Appeal from a judgment of the Magistrate’s Court, Kalmunai.
Colvin R. de Silva, with Miss Suriya WicJcremasinghe, for Defendant-Appellant.
S. Sharvananda, lor Applicant-Respondent.
November 23, 1962. Sbi Skanda Raj-AH, J.—
This is an application for maintenance by the wife from her husband.The provisions that are applicable are Sections 2, 3 and 4 of the Main-tenance Ordinance, Chapter 91. The relevant portions of Section 2irun thus ;
“ If any person having sufficient means neglects or refuses to maintainhis wife, …. the Magistrate may, upon proof of such neglect orrefusal, order such person to make, a monthly allowance for the main-tenance of his wifeat such monthly rate, not exceeding
a hundred rupees”
•Section 3 and Section 4 must be reproduced in full.
Section 3 : “If such person offers to maintain his wife on conditionof her living with him, the Magistrate may consider any grounds ofrefusal stated by her, and may make an order under Section 2, not-withstanding such offer, if the Magistrate is satisfied that such personis living in adultery, or that he has habitually treated his wife withcruelty. ”
Section 4 : “ No wife shall be entitled to receive an allowance fromher husband under Section 2 if she is living in adultery, or if,■without any sufficient reason refuses to live with her husband, or if they■are firing separately by mutual consent. ”
SRI SKANDA RAJAH, J.—Sathasivam v. Mcinickaratnam
It is also necessary for the purpose of the decision in this case to referto the actual income of the applicant as well as that of the defendant.The applicant is a teacher who has an income of Rs. 212/- per mensem..The defendant himself is a teacher and his monthly income is Rs. 254/-..
It would appear that the defendant became a teacher in 1952 ; but,from 1953 till the end of April, 1959, he was a teacher at the Rye Govern-ment School at Aliarawa in Balangoda. In front of this school lived.Kirihamy and his four unmarried daughters. The defendant was a-paying-guest in Kirihamy’s house. The evidence is overwhelmingthat he became intimate with one of Kirihamy’s daughters, namelyKusumawathie, though the defendant himself has made very unsuccessfulbut deliberate attempts to deny this.
On 30.4.1959 he was transferred to a school in Haputale. When he waff,teaching at Haputale he got married to this applicant, who was a teacherat Karativu, in the Kalmunai area. On 1.9.1959 the defendant wastransferred to Mandur, also in the Kalmunai area. The parties livedtogether till 15.3.1960. But even during this time, he appears to havebeen anxious to get away from the school at Mandur. He told his wifethat he was going to Colombo to work up a transfer from Mandur andhe obtained money from his wife for that purpose. Thereafter, aftergoing to Colombo he went to Balangoda on his way to Mandur. He-sent a telegram, admittedly, from Balangoda to the wife to re-directa registered letter. That registered letter was written by Kusumawathieto the defendant.
Undoubtedly, in this case certain inadmissible evidence has been led,e.g., the anonymous letter P3A and another letter P2A. In my view,that has not caused material prejudice and the provisions of section 167of the Evidence Ordinance would apply. They only served to unfold the-narrative.
The result of the intimacy between Kusumawathie and the defendantis shown even by the photograph that has been produced in this case,viz., P 3B, the negative of which P3C, has been produced by calling the-Manager of the Studio. This photograph was taken on 10. 6. I960..
I am constrained to remark that the defendant is such a brazen faced,liar as to deny all relationship between him and Kusumawathie. He-had even been the informant about the birth of the child on his lap in thephotograph P3B. Kusumawathie and her sister are the other two in it.He tried to make out that he did not know about the registration of*the birth of that child till he tried to get the birth certificate for thepurpose of this case though he was the informant (vide P9). Ultimatelyhe got the transfer back to Balangoda on 1.1.1961 to the Rye School.One has to ask oneself: What was the magnetic attraction for /him to-get back to Balangoda but his mistress Kusumawathie and his child ?Of course, there is no direct evidence that this man was still continuing,at the time of this application, to live in adultery with Kusumawathie..
SRI SKANDA RAJAH, J.—Sathasivam v. ManicJcaralnam
It is submitted that, at best, it can be said that there is only proofthat till June, 1960, he was carrying on an illicit relationship withKusumawathie.
The Headmaster of, and another teacher in, the same school werecalled to show that this man was continuing to live in adultery; but, itappears to have been difficult for the Headmaster and the other fellow-teacher to let down their colleague. One can understand their reluctanceto speak the truth. But, are there sufficient circumstances to indicatethat this defendant is still living in adultery with Kusumawathie?
Mr. Sharvananda cited the case in 22 N. L. R. page 310 Ebert v. Ebert1where certain quotations from two English cases have been referred to,to show that there was adultery between the parties in those cases. Inthat case, the question whether the parties were “ living in adultery ”was not considered. It was in subsequent cases that the words “ livingin adultery ” were interpreted to mean “continuing to live in adultery ”.
Now, this defendant, though he was transferred to Mandur from 1.9.1959,had gone back to Kusumawathie on the pretext of going to Colombo,and then he got a transfer back to the same school in front of whichKusumawathie lives with the child born to this man. He also speaks ofKusumawathie now being married and carrying a child. But Kusuma-wathie’s father Kirihamy in his evidence says that Kusumawathie is notmarried. The defendant tried to make out that she was now married to onePonnusamy. No such question was put to Kirihamy. These are allcircumstances tending to show, on the balance of probability, that thisdefendant is living in adultery with Kusumawathie.
But, even on the footing that he was not living in adultery at the timehe made this offer to the applicant to come back to him and live withhim, one has to consider whether the offer was bona fide. Now, it issubmitted that Section 3 of the Maintenance Ordinance, which I havequoted above, refers to an offer and it would not be proper to importbona fides into the word ‘offer In fact, at the resumption of the argu-ment today, I referred to Sections 3 & 4 and indicated that the questionof bona fides of the offer may arise and invited arguments on this aspect.Thereafter, Mr. Sharvananda brought to my notice the case ofThangachy v. Mohamed Latiff2, which is a decision of JusticeAkbar, decided on 31st March 1930. I pointed out to the words“ any grounds of refusal stated by her ” in Section 3 and to the words“ without any sufficient reasons ” in Section 4. The case decidedby Akbar J. was a case in which the husband, who was sued for main-tenance, offered to maintain her on condition of her living with him and thelearned Judge pointed out that the offer must be tested to find outwhether it is a bona fide offer. In my view the word “ offer ” in thesection should be a bona fide offer and, if it is not genuine, then thedefendant cannot successfully resist the claim for maintenance. In orderto test whether the offer is bona fide or not, one has to examine all thecircumstances of the case. Undoubtedly, in the report of the casedecided by Akbar, J. the facts of the case are not given. But in this1 (1921) 22 N. L. R. 310.2 3 Criminal Appeal Reports (Ceylon) 43.
SRI SK AND a. RAJAH, J.—Sathaaivam v. Manickaratnam
case the facts I have related so far, show that the defendant was anxiousto get back to his mistress and child and was even unwilling to go andsee the applicant when she gave birth to a still-born child and his havingrefused 3 attempts on 3 successive days by the applicant to get him back,his having made no attempt whatsoever till after he was sued in thiscase for maintenance to get the wife back, all go to prove that thisoffer is a mere attempt to get over the difficult situation in which hefinds himself, because of the illicit intimacy between him and Kusuma-wathie. His past conduct was that of a blackguard. In my view, theoffer was not made bona fide. “ A defendant who offers to take thewife back should provide a fitting abode for the wife and should beprepared to maintain her with the dignity and consideration whichbefit a wife ”—at page 44, 3 Criminal Appeal Reports (Ceylon). Theseare not referred to in that Section. These are also, like bona fides,implied in the word “ offer ” used in Section 3. Therefore in my view,this is not a bona fide offer and the defendant is liable to pay maintenanceto the applicant.
. I was addressed on the quantum of maintenance. I have alreadyindicated the income of each of the parties. Mr. Sharvananda refersme to the case of Mrs. S. V. Fernando v. J. R. I. Fernandox, where it washeld that the Court should not take into account the means of a wife,when fixing the quantum of maintenance payable under Section 2 ofthe Maintenance Ordinance. The learned Judge who decided that casehas considered the Divisional Bench case of Sivasamy v. Rasiah 2. Inthat case the Magistrate had dismissed the application on the groundthat the wife had sufficient means. That case was sent back to. theMagistrate to fix maintenance as he thought fit, having regard to themeans of the husband. There, the learned Judges did not indicate thatthe income of the wife also should be taken .into. account. In my viewRs. 50/- is not too large an amount.
Before I part with this case, I wish to refer to a matter which transpiredon the first day of the argument, namely, the submission that theMagistrate had “ descended into the arena ”, Reference was made topara G of the petition of appeal and Kirihamy’s evidence in re-examina-tion regarding the Magistrate forcing him to speak the truth. At thatstage of the argument I intervened and said that a Judge is not boundto take the position of an umpire. This view which I have always takenis supported by the following passage in the judgment of Sir AntonBertram, C.J., with whom another eminent Judge, Justice Garvin,,agreed : S. C. 441, D. C. Negombo No. 15956, S. C. Minutes 2.7.24 :—3
“ It is a great pity I think that Judges, when they see two sidesrfencing with one another and manoeuvering for position, shouldconceive themselves merely as umpires in a game of strategy andshould not themselves determine that the truth must be ascertainedand themselves call witnesses, who for strategic reasons or throughmisconception are withheld by either party. ”
1 (1961) 62 N. L. R. 550.2 (1943) 44 N. L. R. 241.
3 (1924) 65 C. L. W. 1.
SRI SKA.NDA RAJAH, J.—Sathasivam v. Manickaratnam
In this connection, I would like to quote an eminent Jurist, who,as far back as 1906, in his address at the Annual Convention of theAmerican Bar Association “ On the Causes of Popular Dissatisfactionwith the Administration of Justice ”, made certain observations. Theeminent Jurist I refer to is Dean Roscoe Pound of the Harvard LawSchool. Said he:
‘'A no less potent source of irritation lies in our American exagge-rations of the common law contentious procedure. The sporting theoryof Justice, the “ instinct of giving the game fair play ”, as ProfessorWigmore has put it, is so rooted in the profession in America that mostof us take it, for a fundamental legal tenet. But it is probably onlya survival of the days when a lawsuit was a fight between two clansin which change of venue had been taken to the forum. So far frombeing a fundamental fact of jurisprudence, it is peculiar to Anglo-American law; and it has been strongly curbed in modem Englishpractice. With us, it is not merely in full acceptance, it has beendeveloped and its collateral possibilities have been cultivated to the fur-thest extent. Hence in America we take it as a matter of course that ajudge should be a mere umpire, to pass upon objections and holdcounsel to the rules of the game, and that the parties should fight outtheir own game in their own way without judicial interference. Weresent such interference as unfair, even when in the interest of justice.The idea that procedure must of necessity be wholly contentiousdisfigures our judicial adminstratiou at every point. It leads themost conscientious judge to feel that he is merely to decide the contest,as counsel present it, according to the rules of the game, not to searchindependently for truth and justice. It leads counsel to forget thatthey are officers of the Court and to deal with the rules of law andprocedure exactly as the professional football coach with the rulesof the sport. It leads to exertion to ‘ get error into the record ’rather than to dispose of the controversy finally and upon its merits.It turns witnesses, and especially expert witnesses, into partisanspure and simple. It leads to sensational cross-examinations ‘ toaffect credit ’, which have made the witness stand ‘ the slaughterhouse of reputations ’. It prevents the trial court from restrainingthe bullying of witnesses and creates a general dislike, if not fear,of the witness function which impairs' the administration of justice.It keeps alive the unfortunate exchequer rule, dead in the countryof its origin, according to which errors in the admission or rejectionof evidence are presumed to be prejudicial and hence demand a newtrial. It grants new trials because by inability to procure a bill ofexceptions a party has lost the chance to play another innings in thegame of justice. It creates vested rights in errors of procedure, ofthe benefit whereof parties are not to be deprived. The inquiry isnot, What do substantive law and justice require ? Instead the inquiryis, Have the rules of the game been carried out strictly ? If anymaterial infraction is discovered, just as the football rules put back
SRI SKANDA RAJAH, J.—Sathasivam v. Manickaratnam
the offending team five or ten or fifteen yards, as the case may be,our sporting theory of justice awards new trials, or reverses judgments,or sustains demurrers in the interest of regular play.
The effect of our exaggerated contentious procedure is not only toirritate parties, witnesses and jurors in particular eases, but to giveto the whole community a false notion of the purpose and end of law.Hence comes, in large measure, the modern American race to beatthe law. If the law is a mere game, neither the players who takepart in it nor the public who witness it can be expected to yield toits spirit when their interests are served by evading it. And thisis doubly true in a time which requires all institutions to be economi-cally efficient and socially useful. We need not wonder that one partof the community strain their oaths in the jury box and find verdictsagainst unpopular litigants in the teeth of law and evidence, whileanother part retain lawyers by the year to advise how to evade whatto them are unintelligent and unreasonable restrictions upon necessarymodes of doing business. Thus the Courts, instituted to administerjustice according to law, are made agents or abettors of lawlessness. ”
In this case, the Magistrate has not acted improperly in makingKirihamy, who was giving palpably false evidence favourable to thedefendant, speak the truth. I
I dismiss the appeal with costs.
P. SATHASIVAM, Appellant, and V. MANICKARATNAM, Respondent