023-NLR-NLR-V-33-SILVA-v.-SENERATNE.pdf
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MACDONEIiL C.J.—Silva 9. Seneratne.
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Present: Macdonell C.J.
SILVA v. SENERATNE.
447-^P. C. Matara, 50,091.
Maintenance—Claim by . wife—Sufficient means to . support herself—No right tomaintenance.
A married woman, who is possessed of sufficient means for her support,is not entitled to claim maintenance from her husband under theMaintenance Ordinance.
^^PPEAL from an order of the Police Magistrate of Matara.
R. L-. Bartholomeusss, for defendant, appellant.
Wljcwic.kreme, for applicant, respondent.
August 6, 1931. Macfdonell C.J.—
In this case the applicant sued respondent, her husband, for mainte-nance. The husband admits that he manages properties for his motherbut alleges that he receives no salary for doing so and lives entirely onhis mother’s charity. The learned Magistrate rejected this story and Ithink rightly. The evidence was that respondent is the only one of hisfamily available to manage these properties for his mother. If, therefore,his mother dismissed him from the management of them, she wouldhave to engage someone else to manage them and would have to paythat someone- a regular wage for such services. Then, she is not in aposition to dismiss respondent from that management while he is in a positionto demand remuneration .for managing those estates which one has no doubthe gets. The Magistrate’s finding that respondent has means of paying theRs. 10 per mensem that he has been ordered to pay, is thus clearly correct.
'The ’Magistrate has ordered respondent – to pay Rs. 5 per mensem for ■maintenance of his wife and Rs. 5 per m^nsepi for that of his children*.As these children are admittedly not of an, age to maintain themselves, seeOrdinance No. 19 of 1889, section 3, the order with regard to them willclearly stand and one might almost regret that the Magistrate had notmade a larger order for their benefit. But a? to the order of Rs. 5 permensem for the maintenance of the wife there.- is this difficulty. She,admits she is possessed of property on the incojme of which she is " livingcomfortably Then on her own showing'it‘ is not easy to see that she
has a claim to maintenance. The case reportedKin Ramanathan's Reports
fn*
1 {1929) 30 N. L. R. 410.
Loll v. Emmanuel.
91
(1868-68), p. 141, assumes as its ratio decidendi that, if the wife isotherwise provided for, she cannot have a claim against her husband formaintenance in Police Court proceedings. Ordinance No. 19 of 1889 issilent on the point, and no other Ceylon case on the point has been citedto me. Such English authorities as 1 have been able to discover are,however, to a similar effect as the case cited above from Ramanatkan.What is the reason for allowing proceedings by a wife against a husbandfor maintenance? Obviously, lest the wife become a public charge.But as long as she has money of her own for her support this cannothappen. With considerable regret, then, I fear it is my duty to set asidethe learned Magistrate's order for payment of Bs. 5 per mensem asmaintenance for the wife.
The respondent husband has instituted an action of divorce against theapplicant, alleging adultery, and is trying to get leave to sue in formapauperis. But in the present proceedings he has not pleaded adulteryby the wife as a defence. Then, in all probability, his action for divorceis not bona fide, as the Magistrate is inclined to hold. This fact distin-guishes this case from that in 7 Ceylon Law Recorder, p. 58, cited to me.wherein a wife's application for maintenance to which the husband hadpleaded her adultery as a defence, was ordered to be stayed pending thedecision' of his own suit for divorce also alleging- adultery.
The appeal must be dismissed as regards the Bs. 5 per mensem orderedto be paid as maintenance for the children, and allowed as regards theBs. 5 pei mensem ordered to be paid as maintenance to the wife.
Order varied.