HEARNE J.—Roslin Nona v. Abeyweera.
1938Present: Hearne • J.
ROSLIN NONA v. ABEYWEERA.
385—P. C. Tangalla, 5,619.
Maintenance—Separation of husband and wife by mutual consent—Custodyof children in the wife—Liability of husband to pay maintenance forchildren.
Where husband and wife agree to separate and the wife is given thecustody of the children, the husband is liable to maintain the children.
Dingiri Menika v. Mudianse (3 Bal. 253) referred to ; Fernando v. Fer.nando (9 Cey. Law Weekly 97) distinguished.
^^PPEAL from an order of the Police Magistrate of Tangalla.
L. A. Rajapakse (with him Kumarakulasingham), for defendant,appellant.
B. WUcramanayake, for applicant, respondent.
Cur. adv. vult.
October 11, 1938. Hearne JJ—
The defendant and the applicant in the Magistrate’s Court are husbandand wife. The latter acting, as she says, “on the advice of a doctor toabstain from marital relations ” with her husband left him. She went toher mother’s house with her three children of whom the eldest is ten yearsof age. After a lapse of eight months she applied to the Court formaintenance of herself and the children. The defendant offered in Court
HEARNE J.—Kostin Nona v. Abeyweera.
to provide a home for his wife and family and the applicant then allegedthat he was living in adultery. The defendant denied the charge <uad adate was fixed for inquiry. On this date the applicant withdrew herapplication for maintenance of herself and limited it to maintenance ofher children.
The Magistrate found that the defendant was in a position to payRs. 20 per month for the eldest child and Rs. 10 per month for each of theyounger children and made an order accordingly. It is from this orderthat the defendant appeals. It was not argued in this Court that theMagistrate was wrong in holding that the defendant could afford to payRs. 40 per month.
In view of the fact that the applicant had withdrawn her application formaintenance of herself, the Magistrate did not record a finding on thequestion of whether the defendant was living in adultery or whether theapplicant’s refusal to live with her husband was with sufficient cause.
Re considered the question of the defendant’s means and addressedhimself to the one argument concerning the defendant’s liability tomaintain his children that appears to have been advanced. It was to theeffect that the applicant was liable to maintain the children tinder theMarried Women’s Property .Ordinance. As this contention, althoughcontained in the defendant’s petition, was not pursued on appeal it isunnecessary to deal with it.
The crucial question which the Magistrate had to decide was whetherthe children were in the lawful custody of their mother (Dingiri Menika v.V. Mudianse1). But everybody appears to have agreed that they wereand the inquiry proceeded on this footing. Even the defendant’s evidencethat when his wife left with the children the parting was “ on almostfriendly terms ” suggests a mutual understanding and an agreement thathis wife should have the custody of the children two of whom at least areof very tender years.
In the circumstances Mr. Poulier who appeared for the defendantassumed that the children were in the lawful custody of their mother—he certainly did not ask the Court to take a contrary view—but on appealit has been urged that the defendant is not liable to support his childrenwhile they are in their mother’s custody on the authority of Fernando v.Fernando
That case decided that the grandfather of a child who is maintainingthe child cannot compel the father to pay maintenance when the father iswilling to maintain the child in his own home. These facts are not com-parable with the facts of the present case where a man whatever the meritsof the dispute between himself and his wife, agrees to separate from herand to give her the custody of their children.
Another point was raised on appeal which was not raised in the Courtbelow or even in the petition of appeal. It was said that there was no •proof of neglect or refusal. The applicant gave evidence that “thedefendant had not maintain ” her or her children “ for several months ”.This was not challenged by the defendant’s proctor, it was ^aot contra-dicted by the defendant when he gave evidence, and it was properlyaccepted by the Magistrate as the truth..
1 3 Bal. Rep. 353.
-9 Ceij. Law Weeili/ 97.
FOYSER S.P.J.—Rosa Maria v. Jay atoar dene.
There remains the question of the offer of the defendant to provide ahome for his wife and family. His wife cannot be compelled to return tohim. While she lives apart from him and the children are in her lawfulcustody she is entitled to an allowance for their maintenance. Should aCourt give the defendant the custody of the minor children no allowancewould of course be payable, but in the present state of affairs his liabilityin law is in my opinion beyond doubt.
1 dismiss the appeal with costs.
ROSLIN NONA v. ABEYWEERA