007-NLR-NLR-V-26-SIMO-NONA-v.-MELIAS-SINGHO.pdf
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Present: Jayewardene A.J.
SIMO NONA v. MELIAS SINGHO.
455—P.C. Colombo, 12,361.
Wife living in adultery before application for maintenance^—Offer ofwife to live with husband—Refusal of husband—Right to claimmaintenance.
Where a husband, refuses to take back his wife, who is willingto live with him, she is entitled to maintenance, although she mighthave left her husband and lived in adultery some time prior to theapplication.
T HE facts are set out in the judgment.
Savundranayagam (with him R. C. Fonefika), for appellant in 455and respondent in 455a.
Soertez, for respondent in 455 and^ppellant in. 455a,
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1988. September 12, 1023. Jayewardene A.J.—
£imo Nona
v. Melias In this ease the appeal of the wife, who is the appellant in 455,Singho ^ my opinion, entitled to succeed. The appellant applied formaintenance in respect of herself and two children. The learnedPolice Magistrate has rejected her claim, but has ordered maintenancein respect of one of the children, Edwin Sinno. He refused to makean order in respect of the other child, who has been proved to beover 14 years of age. The . claim of the wife was resisted on theground that she was living in adultery. The respondent statedthat the applicant left him about seven or eight years ago with aCochin man named Velu, and that at present she is living "vYith aman called Marshall Appu. The fact that she went away sometime ago with Velu is not very material, if she is not living with himnow. He states that she is living with Marshall openly. Tosupport his evidence on the point he called two of his sons and asister-in-law of his. An independent witness was called, but heonly spoke of the wife having lived with Velu. So that the.evidencethat the applicant is living in adultery with Marshall Appu is.ofinterested witnesses. The learned Magistrate says that it is notlikely that the respondent would have made up a false story likethis and made his sons to give evidence in support of it. Whenchildren take sides in a case between their parents, they are preparedto go very far to support their side. In such circumstances, it isvery easy to get children to give false evidence against the otherparent, and there is no inherent probability that their evidence istrue. Both the children are evidently living with the father, whosecase they are called to support. They are under his influence.In fact, in cross-examination of the younger child, it transpired thathe had never seen his mother living with Marshall Appu. He onlyheard people say so. In examination-in-chief he swore that hismother was living at present with Marshall Appu. The applicantgave evidence denying that she was living in adultery with MarshallAppu, and called several independent witnesses to support her''case.The learned Police Magistrate does not find expressly that theapplicant' is living in adultery with Marshall Appu, but rejectsher claim as he is inclined to believe that she has been living awayfrom her husband for some years. He, however, finds that thehusband has not proved that he has had no access to his wife, forhe has allowed maintenance in respect of the child aged six months.In my opinion the respondent has failed to prove that the applicantis at present living in adultery. The parties are not living separatelyby mutual consent. The wife is prepared to live with her husband,but he refuses, as his counsel informed me, to take her back. Sheis, therefore, entitled to maintenance, although she may have lefther husband and lived in adultery some time ago (Reginahamy v.
‘ Johna} and Goonewardene v. Abeyivickreme2). The order in case
»(/.W) 17 N. L. R. 376.
* (1914) 18 N. L. R. 69.
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No. 455 is accordingly set aside. 1 send the case back for the PoliceMagistrate to award to the applicant such monthly sum as hethinks is sufficient for her maintenance. The appellant in 455 willget her costs. The appeal in 455a is dismissed, without costs.
Sent back.
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Jayewab~DENE AJt»
Simo Nonetv. Melias-Singho