015-NLR-NLR-V-69-S.-SHANMUGAM-Appellant-and-ANNAMUTTU-Respondent.pdf
MANICAVASAGAR, J—Shanmugam v. Annamuttu
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Present: Manleavasagar, J.S. SHANMUGAM, Appellant, and ANNAMUTTU,Respondent
S. C. 499/64—M. C. Jaffna, 15127
Maintenance—Order made in favour of children—Mother living in adultery —Her rightto receive the children's allowance—Maintenance Ordinance, as. 2, 4, 5.
Where, on an application made by a wife under aection 2 of the MaintenanceOrdinance, the husband is ordered to pay a monthly allowance to the childrenof the marriage, the wife, if she has the custody of the children, 13 entitled toreceivo into her hands the allowance of the children, even if she is living inadultery.
.A.PPEAL from a judgment of the Magistrate’s Court, Jaffna.
Thiagalingam, Q.C., with R. R. Nalliah, for the Defendant-Appellant.
R.Manikkavasagar, for the Applicant-Respondent.
December 4, 1964. Manicavasagab, J.—
The applicant is the lawful wife of the defendant; in 1961 she wasgranted a decree nisi dissolving her marriage which has not yet been madeabsolute.
In October 1958 on an application made by her, the Magistrate orderedthe defendant to pay a monthly allowance to each of the throe children ofthe maniage ; the defendant fell into arrears and a Distress Warrantwas issued to recover the amount due. In January 1962, counsol for thedefendant submitted to the Magistrate that the applicant is living inadultery, and also living in separation by mutual consent, and therefore hisclient is justified in not paying her the allowance due to his children.
After inquiry the Magistrate disallowed the objection of the defendant.
The question that was submitted for determination by me is whetherthe wife is entitled to receive the allowance of the children as she is livingin adultery.
The Magistrate has not made a definite finding on the issue of adultery,nor has he found whether the document D1 which is relevant to thisissue was given by the applicant voluntarily or under duress. Havingregard to the decision I have reached on the submissions made byMr. Thiagalingam, I do not think it necessary to send the case back fora re-hearing on these matters.
I shall however assume that the applicant is in fact living in adultery, andhas been so living since July 1958. Mr. Thiagalingam’s argument is thatSection 4 of the Maintenance Ordinance disentitles the wife who is living inadultery from receiving from her husband the allowance granted under
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MANICAVASAGAR, J.—Shanmugam v. Annamuliu
Section 2 of the Ordinance. Section 2 empowers the Magistrate to ordera porson to pay a monthly allowance for the maintenance (1) of his wifeand (2) of his children, whether legitimate or illegitimate. Counsel sub-mits that Section 4 is applicable not only to the wife’s allowance, butalso to the allowance made in favour of the child ; in other words he saysan adulterous wife is not entitled to receive into her hands the child’sallowance ; he pointed to Section 5 which enables a Magistrate in certaincircumstance to cancel an order made in favour of the wife, and contendedthat if the object of Section 4 is to apply only to the wife’s maintenance,the section would have been couched in the same terms as Section 5 ; inthe absence of such phraseology ho submitted that all orders for allowanceunder Section 2 were affected by Section 4.
I am of the view that this submission is untenable : Section 4 appliesto a stage prior to the making of an order under Section 2 : the matterssot out in Section 4, if raised by the defendant, are those which the Courtshould consider in deciding whether the wife is entitled to receive anallowance or not: such matters have no relevance to the issue ofmaintenance for the child of the marriage, or in the case of an illegitimatechild whose paternity is admitted by a defendant, because a parent is boundin law to maintain his child ; the adultery of the wife or that the spousesare living apart by mutual consent has nothing whatsoever to do with thelegal duty of a father to maintain his child. The several matters set outin Section 4 have no application after an order for maintenance is made infavour of the wife. The husband cannot bo heard to resist an order madein favour of the wife under Section 2 by recourse to Section 4 : his remedyis to have the order cancelled under Section 5 : otherwise it remainsoperative.
Mr. Thiagalingam’s argument was on the basis that Section 4 appliesto a case where an order under Section 2 has been already made, and if anyone of the circumstances set out in Section 4 had been established thoMagistrate could order that the wife is not entitled to receive the allowanceordered under Section 2 ; I do not agree with this submission; butassuming that Mr. Thiagalingam is right, that is to say that Section 4applies to an order under Section 2, my opinion is that even in such acase Section 4 applies only to the wife’s allowance, and not to the child’sallowance. It is the duty of a father to maintain his child, and, as inthis case, if he has not the custody of his child, he is bound to pay theallowance ordered under Section 2 to the persons in whose custody thechild is : if such person be the mother of the child she is not disentitledfrom receiving the allowance ordered for the child, even if any one of thecircumstances set out in Section 4 is established : the allowance orderedis personal to the child, and the latter should not suffer even temporarilyfor the folly of the mother : this appears to me to be the reason underlyingthe sections of the Ordinance which were cited in the course of theargument.
The appeal of the defendant is dismissed with costs.
Appeal dismissed.