021-NLR-NLR-V-50-RASAMANY-Appellant.-and-SUBRAMANIAM-Respondent.pdf
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B ASNAYAKE J.-—Rasa-many v. Subramaniam.
1948Present: Basnayake J.
RASAMAN Y, Appellant, and STXBRAMANIAM, Respondent
S. C. 484—M. C. Anuradhapura, 21,381
Maintenance—-Having sufficient means—Capacity to earn money—Inabilityof husband—Section 2.
The word “ means ” in section 2 of the Maintenance Ordinance shonldbe given a wide meaning and includes the capacity to earn money.
Appeal from a judgment of the Magistrate, Anuradhapura.
H. W. Tambiah, with S. Sharvananda, for the applicant, appellant.G. Thiagalingam, for the defendant, respondent.
Cur. adv. vult.
July 21, 1948. Basnayake J.—
The appellant is the wife of the respondent. They were married inMay, 1947, and lived together at Chavakachcheri till September, 1947,when respondent took the appellant to the house of her parents atAnuradhapura and left her there. The appellant alleges that from thattime the respondent has failed to maintain her. The respondent was aclerk at the Trincomalee KLachcheri from May, 1947, to [February, 1948.He is not employed now. The appellant instituted proceedings formaintenance against the respondent once before this, and in thoseproceedings the respondent offered to maintain the appellant on condition■of her living with him. She accepted the respondent’s offer but hefailed to maintain her. In these proceedings too, at the very outset,the respondent made a similar offer, but the appellant declined to acceptit. The learned Magistrate is satisfied that she has good grounds forher refusal.
The appellant and the respondent appear to be persons of some social■stand'ng. The appellant’s father is a trader in straw. At her marriageher father gave a dowry of Rs. 2,000 in cash, Rs. 2,000 in jewellery, anda land worth Rs. 4,000. The money received as dowry formed part of thepurchase price of a land the respondent purchased at Chavakachcheri,which is his home. The respondent says he has no employment and noincome. He also claims that he has to look after his parents. Heasserts that he is prepared to maintain the appellant if she will comeand live with him. The following is his evidence on the point :
“ Even in this case, on an earlier date I offered to take back applicantto Chavakachcheri. I have put up a house on the land we boughtin applicant’s name. A husband and wife can live in the house I haveput up. The new house is as big as my father’s house. I have threebrothers and one sister and my parents; in all five people live in that
RASlfAYAKB J.—•Rasamany v. Subramaniam.
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house. I am prepared to build a bigger house later. I even now amwilling to take applicant to Chavakachcheri and select any house atChavakacheheri for applicant.”
In cross-examination he says :
“ Applicant was a dutiful wife to me. I am unemployed at themoment. I have no income. I have to look after my parents. I amprepared to maintain my wife if she will come and live with me. I haveno income on my own. I can cultivate other people’s lands andsupport my wife.”
The appellant alleges that the respondent has property. She relieson the fact that the respondent applied for the village headmanship ofChavakachcheri. The respondent admits that he applied for that officebut denies that he is possessed of any property. The learned Magistratewhile holding that the appellant is entitled to maintenance has refusedto make an order under section 2 on the ground that the respondent hasnot sufficient means.
On the evidence in this case I am unable to agree with the learnedMagistrate. Under section 2 of the Maintenance Ordinance, if anyperson having sufficient means neglects or refuses to maintain his wife,the Magistrate may order such person to make a monthly allowance forthe maintenance of his wife. Section 3 goes on to say that if such personoffers to maintain his wife on condition of her living with him, the Magis-trate may consider any grounds of refusal stated by her, and may makean order under section 2, notwithstanding such offer. The respondent’sclaim that he is unable to pay maintenance is irreconcilable -with hisoffer to maintain his wife on condition of her living with him. It isnoteworthy that section 3 speaks of “ such person ”, meaning thereby“ a person having sufficient means ”. If a man is able to maintain hiswife on condition of her living with him, it will be doing violence tolanguage to say that he is a person without sufficient means to maintainhis wife. The respondent has not only offered to maintain his wifeon condition of her living with him, but he has also offered to leave herto select any house in Chavakachcheri to live in.
Learned counsel for the appellant submits that the word “means ”should in this context be given a wider meaning than income. He citesthe cases of Sivapakiam v. Sivapakiam 1 and Thangachi v. MohamaduLebbe2. The second case has no bearing on the present discussion.In the first case, Maartensz J. relies on the decision of Burnside C.J.in K. Michohamy v. A. Suddappu3 and the English case of Earnshawv. Earnshaw 4. Neither of these cases is a decision on a statute whichcontains the words “ having sufficient means ”. The former case is adecision on section 3 (2) of the Vagrants Ordinance, No. 4 of 1841, whichreads :
“ Every person being able, wholly or in part, to maintain his family,leaving his wife or his child, legitimate or otherwise, withoutmaintenance or support, whereby they shall become chargeable to Orrequire to be supported by others. ”
1 {1934) 36 N. L. R. 295.• 3 Cr. App. R. 43.
{1883) 5 S. C. C. 198.
{1896) 74 L. T. R. 560.
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B ASNAVAJKE J.—Ra.3a.many v. Subra.mania.rn.
The latter is a decision under section, 1 of the Summary Jurisdiction(Married Women) Act, 1895, the material words of which read—
“ whose husband shall have deserted her, or whose husband shallhave been guilty of persistent cruelty to her, or wilful neglect to providereasonable maintenance for her or her infant children whom he islegally liable to maintain. ”
That decision rests on the effect of the words “ wilful neglect It washeld that wilful neglect must be proved by evidence showing that thehusband had or could earn money or could get money.
Learned counsel for the respondent submits that “ means ” does notmean ability to earn and that under the Maintenance Ordinance therewas no obligation to work and pay. He also submits that the phrase“ having sufficient means ” should be understood in the sense of havingsufficient means at the material date. I am unable to accept the sub-missions of learned counsel for the respondent. In my view section 2should be given a wide meaning and not restricted in its scope to personshaving an income or actually earning at the time of the application.In this context the word “ means ” should be taken to include capacityto earn money. It cannot be that the legislature when enacting theseprovisions intended to exclude from the scope of sections 2 and 3 able-bodied men capable of earning and maintaining their wives and childrenbut who by their voluntary act refrain from so doing. A considerationof the decisions under section 488 of the Indian Criminal Procedure Codesub-section (1) oi which has the very words of our section 2, “ If any personhaving sufficient means neglects or refuses to maintain his wife, or hislegitimate or illegitimate child unable to maintain itself ”, confirms mein the view that the words “ sufficient means ” should not be given anarrow meaning. The general effect of these decisions is that the expres-sion “ means ” is not confined to visible means such as real property ordefinite employment.
In the Madras case of Kandasami Chetty1 it was held that a healthyable-bodied man must be taken to have sufficient means to support hiswife. Beaumont C.J. in the Bombay case of Muni Kantivijayaji v.Emperor 2 says :
” I think that ‘ means ’ within section 488 includes a capacityto earn money, and that if a man can be shown to be capable of earningmoney, then he has the means to maintain his wife. Prima facie,a man twenty-six years of age as the applicant in this case is mustbe presumed to be capable of earning money. But that presumptionmay be rebutted.”
The High Court- of Burma has in a series of cases taken a similar view.In the case of Ma Tha v. Nga San E? it was held that the presumptionwas that an able-bodied man had sufficient means to support bis childas well as himself and that it was for him to prove the contrary. Thisdecision was followed in the case of U. Thiri v. Ma Pwa Yi 4 where itwas held that a Buddhist monk was regarded as a person having sufficient
1 (1926) A. I. R. Madras 346.3 13 Or. £. J.~162.
(1932) A. I. R. Bombay 285.* (1923) A. I. R. Rangoon 131.
I. H. Wijesitufhe v. The Afa jor of Colombo.
87
means although he lived on charity. The observations of Page C.J.in the case of Alaung Tin v. Jlla FImin 1, a decision of the Full Bench,should be noticed in this connexion. He says at page 140 :
“ But the term ‘ sufficient means in my judgment, is not confinedto pecuniary resources, and I agree with the view expressed by Eales
J.C. in Ma Tha v. Nga San E. (13 Cr. L. J. 162) that ‘ a mere denialby a man himself of sufficiency of means, when that man is anable-bodied man, is not conclusive proof of want of sufficient means ’. ”
His remarks at page 141 are equally relevant. He says :
“ In my opinion, a man is not, and ought not to be, permitted byhis own voluntary act to free himself from the elementary duty ofmaintaining bis wife and children.”
On his own admission the respondent is capable of earning and main-taining bis -wife. I therefore allow the appeal with costs and set asidethe order of the learned Magistrate and send the case back with a directionthat the learned Magistrate should determine the amount of maintenancethat the respondent should be ordered to pay. The appellant is entitledto the costs of the trial.
A/ppeal allowed.