048-NLR-NLR-V-10-LUCIYA-v.-UKKU-KIRA.pdf
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Present: Mr. Justice Wood Renton.
LUCIYA t>. UKKU KIRA.P. C.f Oampola, 38,723.
Maintenance—Child in arms—Father'sliability—OrdinanceNo.19 . of
1889, 5. 3.
Under the provisions of Ordinance No. 19 of 1889 (MaintenanceOrdinance) the father of a child is bound to pay for its maintenanceeven where such child is being nursed by the mother and requires,no food other than that which it derives from her.
Dictum of Bonser C.J. in Sethu v. Jams1 disapproved.
Judgments of the Full Court in LatoarinahanU v. Pedro Appi,vand Madalena Fernando v. Juan Fernando5 distinguished.
A
PPEAL# from an order of the Police Magistrate condemning thedefendant to pay a sum of Rs. 2.50 monthly for the mainten-
ance of his illegitimate child.
The facts and arguments fully appear in the judgment.
F, de SUva, for the defendant, appellant.
1907.May 91
21st'May, 1907. Wood Renton J.—
The appellant was sued in the Police Court of Gampola under:section 3 of the Maintenance Ordinance, 1889 (No. 19 of 1889), for.neglecting to maintain a child, of which the applicant alleged him.to be tile father. The Police Magistrate ordered him to pay amonthly sum of Rs. 2.50, by way of maintenance, until the childattained the age of ten years. The only ground on which the.appeliant challenged .this order in his petition was a denial of thepaternity. I see no reason to differ from the finding of the Police:Magistrate on that point. It is true that the applicant seems to be awoman of loose character. But there was ample corroboration of*
* ^ her evidence, if the witnesses who furnished it were to be believed-At the argument before me, however, the appellant’s counseltook a fresh point. It would appear that the child in question was.only about three months old at the date of the Police Magistrate’s *order. It was urged, therefore, on the strength of the decision of.Sir John Bonser C. J. in the case of Sethu t>. Janis-1 that?, in view ofits tender age, the child presumably was being nursed by the.mother, and that, therefore, it needed no maintenance at the hand*
i (1896) 2 N. L. R. 103.. 2 (1884) 6 S. C. C. 76.
5 (1884) 6 S. C. C. 76.
8J. N. A 98907 Wm
1907
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of the father. Apart from authority, I should have said that this
Maycontention was negatived by the language of section S of the Main-
y/OOJ>te,nance Ordinance itself. It appears to me that the Ordinance
Rboton J. imposes upon the father of every child under the age of 14 years,whether legitimate or illegitimate, the duty ■ of maintaining it,provided that the child is “unable to maintain itself." Thequestion whether the mother is nursing the child is no doubt anelement, of which the Court should take account, in fixing theamount of the maintenance. 'But it has, in my opinion, nothingto do with the inception of the father’s liability. By the very termsof section 3 of the Ordinance of 1889 the test of that liability is theability of the child to maintain itself. The section clearly pointsto oases in which a child, although under the age of fourteen years,is earning its own livelihood, and in which therefore it would beunfair to burden the father with the expense of supporting it.
It seems to me that all that an applicant under section 3 of theOrdinance of 1889 has to prove is, (1) that the respondent is thefather of the child; (2) that the child is of tender years within themeaning of the Ordinance, and is in fact unable to maintain itself;
that the respondent is neglecting or refusing to support it;, and
that he has sufficient means to enable him to do so. If thesefacts are established, the applicant’s right to an order for mainten-ance is made out. It then becomes the duty of the Police Magis-trate to consider what amount of maintenance ought to be allowed.In dealing- with that issue he has the right to take into his considera-tion all the circumstances of the case before him: the means ofthe respective parties, the age of the child, and the question of themaintenance it actually requires. It appears to me that for .thispurpose the term “ maintenance " should be taken in its widestsense. A child has a right to shelter, to clothing, and, if necessary,to medicine as well a6 to food; moreover, if the mother is in factnursing the child, she is herself entitled to additional sustenanceif she needs it, and such sustenance is, within the meaning of theOrdinance, a necessary part of the maintenance of the child.
It is in this way that I should construe' the Ordinance, in theabsence of 'judicial authority imposing . upon me a contrary inter-pretation. The only direct decision that I have been able to findunder the Ordinance of 1889 is that of Sir John Bonser in the caseof Sethu v. Janis,1 to which I have already referred. It was thereheld by the learned Chief Justice that where a child needs nomaintenance other than the sustenance afforded by < tie mother,no order should be made against the fa'ther under section 3 of theOrdinance of 1889. It would appear from the terms of the judg-ment in this case that Sir John Bonser considered that the word*maintenance ” might well include other elements than food,
i (1696) 2 N. L. B. 103.
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for he sent the case back for inquiry as to whether any maintenanceexcept the sustenance of the child by the mother was needed. Sofar, therefore, he does not contradict the view that I have alreadyexpressed as to the scope of that term in the Ordinance of 1889.If he intended to go further and to hold that where a woman isnursing her child, and where the child requires no food other thanthat which it derives from her, she has no claim as against thefather, on the child’s behalf, to any allowance for the purposes ofher own sustenance, I can only say, with the greatest respect, thatI do not agree with him, and that I must decline to follow hisdecision.
The appellant's counsel urged that in the class of life to whichthe present parties belong the cost of clothing an infant childwas so small that it would practically be disregarded. That is acircumstance of which the Police Magistrate can take account indetermining the amount of an allowance. It cannot affect theconstruction of an enactment of general application.
The only other cases on the point now in issue are a group ofdecisions reported in 6 S. C. C. 75 and 76 (P. C., Negombo, No.52,743; P. C., NegOmbo, No. 53,680; P. C., Negombo, No. 53,288),in which it was held (in two cases by the Pull Court) that on acharge of maintenance brought by the mother of a child still inarms, the father could not be held criminally liable for not main-taining it, so long as it required no nourishment except that derivedfrom the mother. If these decisions had been in pari materia,they would, of course, have bound me. But they were given undera provision in the Vagrants' Ordinance, 1841 (No. 4 of 1841),section 3, b'ub-section (2), which imposed a criminal liability upona father whose neglect to maintain his child made it ” chargeableto others.” It is true that the reasoning in these cases proceeds tosome extent on the same lines as that of Sir John Bonser in Sethuv. Janis. But the Judges who had to construe the Ordinance of1841 had not before them the test of liability created by section 3of the Ordinance No. 4 of 1889, namely, the question whether thechild is “ unable to* maintain itself.” T hold, therefore, that the* decisions above mentioned in the three Negombo cases are notbinding upon me, and I dismiss the present appeal.
1007.May 21.
WoodRentoh J.
Appeal dismissed.