137-NLR-NLR-V-17-THEVANAPILLAI-v.-PONNIAH.pdf
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Present: Pereira J.
THE VAN APILLAI v. PONNIAH.
1914.
631—P. C. Jaffna, 12,634.
Maintenance—Tesawalamai—Grandmother or other relation taking overthe child on second marriage of father—Claim for maintenance fromfather.
The Tesawalamai recognizes the grandmother or other relationof a child, who, in terms of paragraph 11, section 1, of the Tesa-walamai, takes over the child – on a second marriage of the fatheras a suitable guardian. She may therefore be allowed to keep thechild as against the father, in case the latter happen to be a personunfit to be entrusted with the child. In that case the father wouldbe liable to make full provision for the maintenance of the childwhile it remains in the custody of the grandmother or otherrelation.
I
N this case the applicant, the grandmother of certain minorchildren who were in her custody, applied for their maintenance
against the respondent, the father, who had married a second time.The respondent undertook to maintain them on condition theywere delivered into his custody. The applicant contended thatunder the Tesawalamai she was entitled to the custody of thechildren, and she also alleged that the father ill-treated the children.The learned Police Magistrate, following the decision in Meenatchi v.Supramaniam Chetty,1 held that the grandmother could not claimthe custody of the children where the father undertook to bringthem up, and dismissed the application without going into theallegation of ill-treatment. In appeal this order was set aside, andthe case was sent back for inquiry on the allegation of cruelty. Onfresh evidence, the Police Magistrate held that the evidence of ill-treatment was not sufficient to prove that the respondent was unfitto bring up the children, and he again dismissed the application.The applicant again appealed.
J.Joseph, for appellant.—The father cannot claim the custody ofthe children. The parties are Jaffna Tamils, and they are bound bythe Tesawalamai. Under that law on the marriage of the fathera second time he must deliver the children to their grandmother,and must provide for their maintenance. Kaemapatjupillai v. Siva-kolunthu.* The case of Meenatchi v. Supramaniam Chetty,1 onwhich the learned Police Magistrate relies, has no application here.Here we are bound by the special provisions of the Tesawalamai,
1 (1898) 3 2V. L. R. 181.
*(1911) 14 N. L. R. 484.
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1914.
Thevana-piUai t>.Ponniah
and the Maintenance Ordinance cannot over-ride this special law.There is strong evidence of ill-treatment of the children by theirfather. By his behaviour he has shown himself to be unfit to bringthem up.
Arulanandam, for respondent.—If the grandmother is entitled tothe custody of the grandchildren, she cannot claim any separatemaintenance for them from their father. What the Tesawalamaisays is that the father should deliver the children to the grandmother,and should give at the same time the whole of the property broughtin marriage by his deceased wife and the half of the property acquiredduring the first marriage. The grandmother should maintain thechildren out of the property so delivered to her. She cannot claimanything more for their maintenance. If she cannot maintain themout of that property, she must return them to the father. TheMaintenance Ordinance applies to all classes of persons in the Island,and the Tesawalamai, which applies to one class of people only,cannot affect the operation of the Ordinance. The respondent hadnot a chance of disproving the allegation of ill-treatment' broughtagainst him. The Police Magistrate has not called upon him for hisdefence, and he must be allowed an opportunity of calling evidencein rebuttal.
Gut, adv. vult.
July 31, 1914. Pereira J.—
In this case the appellant’s counsel has reverted to the old argu-ment in the Court below that under the Tesawalatnai the applicantwas entitled to the custody of the children of the respondent, andthat therefore the applicant was entitled to recover maintenancefrom the respondent. The provision of the Tesawalamai relied onis a provision that had long been supposed to be obsolete, but whichappears to have been re-animated by the judgment of this Court inthe case of Kanapathipillai v, Sivakolunthu.1 The provision in itsentirety is as follows: " If a father wishes to marry a second time,the mother-in-law or nearest relation generally takes the child orchildren (if they be still young) in order to bring them up, and insuch case the father is obliged to give at the same time with hischild 6r children the whole of the property brought in marriage byhis deceased wife, and the half of the property acquired during thefirst marriage. ” The terms in which . this provision is expressedappear to me to indicate that it was a mere custom regulated in eachindividual case more or less by arrangement between the parties.Anyway, the grandmother is said to take the children over ** tobring them up,” and for that purpose she is to get all the propertymentioned above. I do not think that it was ever intended thatshe should be entitled to look to the father for the maintenance ofthe children. If she cannot maintain the children, she should return
i (1911) 14 N. L. R. 484.
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them and the property to the father. At the same time it is clearthat the Tamil law recognizes the grandmother or the other relationwho takes over the children on a second marriage of the father as asuitable guardian, and I think she may well be allowed to keep thechildren as against the father, in case the father happen to be a personnot fit to be entrusted with the children, and in that case the fatherwould be liable to make full provision for the maintenance of thechildren while they remain in the custody of the grandmother orother relation.
On the last appeal in this case 1 held that the question arisinghere is whether the applicant could make-good her allegation ofcruelty against the respondent. On that question evidence hassince been called, and to my mind the appellant has fully establishedher allegation of cruelty. The evidence does not appear to havebeen disbelieved by the Magistrate, and if it is true that the boyKanagasabai, at the age of six or seven years, was beaten as describedby himself and the other witnesses and put out of the house, withthe result that the child had to seek shelter in the house of thenext door neighbour, and he remained there a month, the respondent,to my mind, has shown himself to be an utterly unfit person to beallowed charged of his children. The respondent’s counsel has urgedthat the respondent was not called upon for his evidence in theCourt below. That was probably so, and I would give him anopportunity of adducing his evidence.
•I set aside the order appealed from and remit the case to the Courtbelow to enable the respondent to adduce his evidence. If the factssworn to by the applicant’s witnesses are not effectually disprovedby the respondent, the Magistrate will make a suitable order formaintenance, taking into account, of course, the income of theproperty taken over by the applicant with the children. If, on theother hand, the facts referred to above are effectually disprovedin the opinion of the Magistrate, he will of course make orderaccordingly.
1914.
Pebeiba J.
Thevana-pittai r..Pmmiah
Set aside and sent back.