SOERTSZ J.—Thangayagam v. Ckelliah.
3941Present: Soertsz J.
THANGAYAGAM v. CHELLIAH.258—M. C. Batticaloa, 2,458.
Maintenance—Application on behalf of a child of seventeen years—Maintenance Ordinance (Cap. 76), s. 7.
Section 7 of the Maintenance Ordinance does not preclude the Courtfrom making an order of maintenance in favour of a child betweensixteen and eighteen years of age.
^^PPEAL from an order of the Magistrate of Batticaloa.
P.Thiagarajah, for the applicant, appellant.
M.M. I. Kariapper, for defendant, respondent.
Cur. adv. vult.
June 17, 1941. Soertsz J.—
This was an application for maintenance made by a wife against herhusband, for herself, and their two sons, the elder of whom was seventeenyears and two months old at the time the application was made. Atthat date the younger son was fifteen years of age.
The defendant opposed the application, and stated that he was not toblame for the fact that his wife and children were living apart from him,and he offered to take them back. The wife, however, refused to go backto him alleging that life with him had become insupportable by reason ofhis habitual cruelty. The defendant did not ask for the custody of thechildren, and I am dealing with the matter on the footing that he wascontent that the children should be with the mother.
The learned Magistrate heard the evidence led before him and came tothe conclusion (a) that the refusal of the wife to go back to the husbandwas unreasonable, and that, consequently, she was not entitled to anorder for maintenance for herself; (b) that the.elder son being oversixteen years of age at the time of the application, section 7 of. theMaintenance Ordinance precluded the Court from ordering maintenance
SOERTSZ J.—Thangayagam v. Chelliah.
for him ; (c) that the younger son was entitled to maintenance at the rateof Rs. 5 per mensem till he attained his 18th year. The applicant appealsfrom the order in regard to herself and her elder son.
I am not sure that I should have reached the same conclusion as thelearned Magistrate on the question whether the wife’s refusal to go backto her husband was justifiable or not, but I have only the recordedevidence before me, whereas the learned Magistrate had the parties beforehim and heard and saw them, and that is a very great advantage in amatter of this kind. I must, therefore, refuse to interfere with that partof the order.
The next question is whether the Magistrate took a correct view of thelaw when he held that section- 7 of the Maintenance Ordinance preventedhim from making an order in favour of the elder son. After carefulconsideration, I am of opinion that his view is erroneous. At commonlaw, the balance of authority favours the view that there was no agelimit in regard to maintenance for children. Professor Lee in his Intro-duction to Roman-Dutch law states iri the text at page 36 : —
“ a father must support his children, that is, must supply them with
necessary food, clothing, shelter, medicine and elementary instruction.
The duty continues until the children have sufficient means to maintain
but, in a note, he raises the question whether this liability exists irre-spective of the age of the child, and points out that Vander Keesel says,that the liability continues " ad majorem aetatam ”. Nathan in hisCommon Law of South Africa, Vol. I. (1906 ed.) p. 118, says that that wasthe opinion to be inferred from the judgment in Tait’s case (4 S.C. 64)too, but he adds “ of course, an age at which a child may maintain himselfneed not necessarily be the age of majority ”, and he refers to in reKnoop (10 S.C. 198) where it was said “the obligation to protect a childagainst want may revive even after such child reached an age at whichhe can maintain himself, if he is in distress or unable to work throughbad health ”. In the Divisional Bench case of Lamahamy v. Karune-ratne Schneider J. quoted from Thomson’s Institute of the Laws of Ceylona passage for which Thomson relies on considerable authority to theeffect that “parents are legally bound to provide legitimate childrenwith necessary maintenance where the children of whatever age, areimpotent, and unable to work either through infancy, disease or accident ;but not when the Children can support themselves ”. It is, therefore,■clear, that at common law it was open to a child to ask formaintenance at any age at all. But under the Maintenance Ordinance,the position is different. The effect of section 7 of the Ordinance is topreclude applications by or on behalf of children who have attainedthe age of eighteen. All that section 7 enacts is that where an order formaintenance has been given in favour of a child without limitation of theperiod of maintenance, the order will not be of force once the child hasattained sixteen years of age, except so far as arrears of maintenance areconcerned, unless the Magistrate makes a fresh order prolonging the
1 22 N. L. R. 289.
SOERTSZ J.—Tangayagam v. Chelliah.
period of maintenance for any additional period up to the eighteenth yearEx hypothesi the main part of the section deals with orders made on ap-plications on behalf of children who had not attained their sixteenth year.It does not deal with applications of children who had attained thatage, but, it does not say that such application may not be made if aMagistrate is empowered, in the first instance, to order maintenanceuntil a child attains its eighteenth year, there does not appear to be anygood reason why a first application for maintenance may i«tot be madebetween the age of sixteen and eighteen. Cases are easily conceivable ofthe failure to maintain arising only at that stage, and in which an orderfor maintenance for that period is desirable.
The words “provided that the Magistrate may in the order or subse-quently ” …. do not bar a first order after the sixteenth year. Onthe contrary they suggest that such an order may be made at any timebefore the eighteenth year is attained.
Mr. Kariapper, Counsel for respondent, submitted. the case of DonaRosaline v. Goonesekere1 for my consideration. But, that case does notdeal either directly or indirectly with the point with which we are hereconcerned. In that case, the ruling of Garvin A.C.J. was that where anorder for maintenance had expired by the lapse of the period duringwhich maintenance could have' been ordered under the MaintenanceOrdinance as it stood before the year 1925, an applicant could hot, byvirtue of the amendment effected in that year enabling a Magistrateeither “ in the order or subsequently ” to direct maintenance till theeighteenth year, obtain an extension of the period of maintenance. Inother words, Garvin A.C.J. construed the word “ subsequently ” in theamended section 7 as meaning as some point of time after the originalorder but while that order was still in force.
The next question is whether this is a case in which maintenance shouldbe ordered for the elder child till he attains his eighteenth year. Thelearned Magistrate, in view of his interpretation of section 7 did notconsider that matter. To send the case back for that purpose, would beto involve the parties in additional expense which they do not appear tobe able to afford, and there is sufficient material on the record to enableme to reach a conclusion on it. Although the elder son is some two yearsolder than the younger he appears to be more or less in the same positionso far as the need for maintenance goes. He is still at school, and at anage at which it is desirable that he should continue at school. It wasnot suggested by the defendant that he is able to maintain himself, orthat he would be able to find employment if he left school. His mother,in her present position is, obviously, unable to keep him at school. Thedefendant has ah income of nearly fifty rupees a month.
I would, therefore, allow maintenance to the elder son too at Rs. 5 amonth from the date of the application till he attains his eighteenth year.
The defendant will pay Rs. 10.50 on account of the applicant’s costs ofappeal.
> 1 C. L. Tr. 17.
THANGAYAGAM v. CHELLIAH