VELUPILLAI v. SANMUGAM

008-NLR-NLR-V-30-VELUPILLAI-v.-SANMUGAM.pdf


1988*
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Present: Garvin J.
VELUPILLAI w. SANMUGAM.
278—P. C. Point Pedro, 11,940.
Maintenance—Arrears of maintenance—Time limit—Ordinance No. 190/1889.
Where an order for maintenance has been made under section 3of the Maintenance Ordinance there is no limit either to the .amount of arrears recoverable or the time within which such ■arrears may be recovered.
A
PPEAL from an order of the Police Magistrate of Point Pedrodirecting the issue a of distress warrant for the recovery
of a sum of Rs. 3,730, being arrears of maintenance payable underan order made under section 3 of the Maintenance Ordinance. Theorder was made on June 22,1906, on the application of Valliamma,the wife of the appellant, and was to the effect that the husband. should pay maintenance at the rate of Rs. 20 per mensem. Shortlyafter the order, the appellant left for the Straits where he remainedtill the end of 1927. The Police Magistrate allowed the applicationauthorizing the recovery of arrears at the rate of Rs. 10 per mensemfor the wife, and a similar sum for the child.
H. V. Perera (with Gnanaprakasam).—The claim is for arrearsof maintenance from June 21, 1906, till about December, 1927,at the rate of Rs. 20 per month.
Two points arise for argument-: first, whether the order formaintenance passed on June 21, 1906, was for the child or the wife,or for both ; second, whether there is any prescription for arrears ofmaintenance under the Maintenance Ordinance.
The Maintenance Ordinance says that the monthly maintenanceshall be recoverable as a fine, under the Criminal Procedure Code.(See 312 (1) (h) of the Criminal Procedure Code.) Fines under theabove section must be recovered within “six years, Similarlyarrears of maintenance are not recoverable after six years.
The order of June 21 was only for the child. The wording ofthe order is vague. Since the defendant was willing to take thewife with him and to maintain her, before granting her anymaintenance the Court must be satisfied that the defendant wasliving in adultery or that he habitually treated the applicant withcruelty. There was no proof of either of cruelty or adultery.The consequent presumption is that the Court acted in accordancewith law and did not grant any maintenance for the wife. (See
{ « )section 4 of Ordinance No. 19 of 1889.) The order being vague,it must be construed to mean that the maintenance was only forthe child.
Under section 8 of the Maintenance Ordinance, there should beno maintenance for the child after the child is fourteen years ofage. The child became fourteen years old on October 21,1915.
Hayley> K.C. (with JBalasingham).—There is no limitation underthe Maintenance Ordinance. Only so much of the CriminalProcedure Code applies to actions under the Maintenance Ordinancea8 are specifically made applicable by the Maintenance Ordinance.Section 9 says the amount ordered may be levied “ in. the mannerby law provided for levying fines in the Police Courts,” Thisplaces no bar on the time during which arrears may be recovered.
August 30,1928. Gabvin J.—
This is an appeal from an order directing the issue of a distresswarrant for the recovery of a sum of Bs. 3,730 alleged to be thearrears of maintenance payable by virtue of an order undersection 3 of the Maintenance Ordinance, No. 19 of 1889, made onJune 22, 1906. That order was made on the application ofValliammai, the wife of the present appellant, who complainedverbally to Court on June 19, 1906, that she and her child, a girlthen of the age of four years, had been deserted by the appellant _who had since failed to maintain them. On June 21, 1906, the dayappointed for the hearing the husband appeared. and stated:
“ I am even now maintaining them. I am ready to take her andthe child with me.” The applicant said : “ I am afraid to go withhim.” An argument then took place between the Counsel for theparties, in the course of which, it was urged that the wife was notentitled to maintenance inasmuch as she was unwilling to returnwith her husband to the Straits, where he was employed, and thatno maintenance should be allowed even for the child since the' father wished to take his child with, him and maintain her himself.
No evidence additional to the complaint recorded on June 19was placed before the Court.
On June 22, 1906, the Police Magistrate made order that thehusband “ do pay maintenance at the rate of Bs. 20 per mensem,”a sum of Bs. 10 was to be paid for the month of June, and thereafterBs. 20 per mensem, commencing July 1, 1906.
A sum of Bs. 10 was paid .but nothing more. The husband left- for the Straits shortly after the order was made and remained theretill he returned to Jaffna at the end of 1927, after his retirement.In the absence of facilities for the enforcement of orders formaintenance made in Ceylon by the Courts of that country everyattempt to procure payment proved unsuccessful.
1888.
Vdupittaiv.
Sanmugam
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18M» The Police Magistrate who heard the argument which took placeGasvnr J. upon the application for a distress warrant authorising the recoveryof ail arrears held, that the order of June 22, 1906, required theammupyrn husband to pay a sum of Rs. 20 per mensem for the maintenanceof his wife and chQd, and that the order must he construed asdirecting the payment of Rs. 10 per mensem for the maintenanceof the child and Rs. 10 per mensem for the maintenance of the wife.He rejected the submission, for which section 312 (1) (h) of theCriminal Procedure Code waa cited as authority, that no arrearsof maintenance can he recovered for more than six years and heldthat the maintenance payable in respect of the wife at Rs. 10 permensem up to the date of his order was Rs. 2,610, and the amountpayable in respect of the child computed up to the date sheattained the age of fourteen years was Rs. 1,120.
I cannot agree with Counsel for the appellant that the Magistratewas wrong in rejeoting the contention that the combined effeot ofsection 9 of the Maintenance Ordinance and section 312 (1) (A)of the Criminal Procedure Code is to bar the recovery of themaintenance payable for a particular month in six years from thedate when it fell due.
Section 9 says that upon failure to comply with an order formaintenance the Magistrate may “ for every breach of the orderissue a warrant directing the amount due to be levied in the mannaby law provided for levying fines imposed by Magistrates in PoliceCourts . . . .” It is section 312, sub-section (2), alone whichrelates to the levying of fines; the preceding sub-section and itsseveral sub-clauses contain provisions relating to sentences of fines,but do not prescribe the manner in which they ate to be levied.An order to pay maintenance is not a sentence of fine; it merely'determines in a particular case the obligation imposed by law onparents to maintain their wives and children and specifies theamount to be paid. It is only the recovery of the amount duewhich is to be made in the manner by law provided for levyingfines. The form of distress warrant prescribed in the scheduleto the Ordinance sets out the person by whom and the manner inwhich the amount is to be levied. It also indicates that one warrantmay issue for the recovery of more then one month’s maintenance.
Section 9 is not very happily worded. It imposes no time limitof any kind to the amount of arrears recoverable, or any limit oftime, to the recovery of the allowance for each month, and apparentlyno limit except that which is set by the number of months forwhich the allowance remains unpaid to the imprisonment which-may be imposed.
In the case under consideration no neglect or want .of diligenceis ascribable. The allowance could not be recovered so long asthe appellant resided in the Straits. Such a ease as this is’ best
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dealt with by reciprocal legislation for the enforcement in one partof the Empire of orders made by the Courts of another part. Suchlegislation now exists—vide the Maintenance Orders (Facilitiesfor the Enforcement) Ordinance, No. 15 of 1021, as amended byOrdinance No. 11 of 1922. It is the absence of such legislationat the time this order was made which has given rise to the somewhatextreme case. Under the existing legislation there is no limitto the amount recoverable by way of arrears and no time bar to therecovery of any allowance for any particular month.
It only remains therefore to consider the submission that theorder of June 22, 1906, is an order for the payment of maintenancefor the child alone, and not for the mother and' the child. Thejudgment of the Police Magistrate embodying the order of June 22,1906, is as follows :—
Order.22.6.06
The defendant admits that he is the husband of the applicant andthe father of the child. He says that he is ready to take them withhim to the Straits where he is employed. The wife declines to go.She says: “ I am afraid to go with him.” The parties have beenestranged for some time and recently made friends, only to separatein a few days—and hence* this application which is the second applicanthas made.
The defendant is bound to maintain the child, who is a girl, and isonly about four to five years of age. I decline to accede to defendant’scounsers request to give the child to defendant. She is too young tobe left without her mother.
I order that defendant do pay maintenance at the rate of Rs. 20per mensem. His counsel admits that he is in receipt of a salary of.100 dollars per mensem.
It is to be hoped that the parties will again be reconciled, and thatbusy bodies who have interested themselves to again estrange husbandand wife will now mind their own business and allow the parties to goand live together.
Defendant will pay Rs. 10 for this month mid Rs. 20 from July 1,1906.
(Sgd.) J. Pbzns, P.M.,22.6.06
Delivered in open court this June 22, 1906, in the presence of theapplicant and the defendant.
(Sgd.) J. Pries, P.M.,
22.6.06
The Police Magistrate has not as he should and presumablywould have done if he were ordering maintenance both for the wifeand the child, specified the allowance payable to the wife or theallowance payable in respect of the child. Nor has he consideredthe grounds of the wife’s refusal to live with her husband as he wasbound to do by section 4, which only permits him to make an orderin her favour when her husband offers to maintain her on conditionof her living with him, if he is satisfied that the husband is livingin adultery or has habitually treated his wife with cruelty. Neither
1938.
Gabvzk J.
VelupiUai «.Sanmugam
30/7
1928.
Garvin J.
Veiupillai v.Sanmugam
( 54 )
in the wife’s evidence nor in the record of the proceedings is therethe slightest indication that the husband was living in adultery,or that he habitually ill-treated his wife.
The Magistrate in his judgment notes the offer of the husbandto take his family to the Straits and the refusal of the wife on theground that she was afraid to go with him. In view of theestrangement between husband and wife her reluctance and e.venfear to go alone with him to a land beyond the seas is understand-able. But it certainly does not justify the suggestion made inthese proceedings that the then Magistrate must have regarded itas indicating habitual ill-treatment by the husband. He has notsaid so, and there is nothing in his judgment to indicate that he was,even as he could not have been, satisfied that this husband hadhabitually treated his wife with cruelty when it is evident that nosuch allegation was even made.
Having noted the offer of the husband to take his wife and childto the Straits and the refusal of the wife the Magistrate says :
" The defendant is bound to maintain the child, who is a girl andis only about four or five years of age. I decline to accede to-,defendant’s counsel’s request to give the child to the defendant.She is too young to be left without her mother. I order thedefendant to pay maintenance at the rate of Rs. 20 per mensem.”
This excerpt contains the decision of the Police Magistrate.He is dealing with the submission that since the wife was notentitled to maintenance no order for maintenance of the childcould be entered upon since the father was willing to maintain it and.was entitled to the custody of the child. The Magistrate tookthe view that he was bound to maintain the child and was havingregard to the sex and immaturity of the child not entitled to itscustody. The order which follows immediately upon this decisionis clearly referable to it and is an order directing the payment ofmaintenance for the child. The concluding paragraph in whichthe Judge refers to the busy bodies who have interested themselvesto estrange husband and wife is hardly in keeping with thesuggestion that he was satisfied that the wife was justified indeclining to live with him.
The decision under appeal was obviously influenced by certainwords which the Magistrate had written and then scored off. Therecord shows that the Magistrate wrote the words “ for the childat ” immediately after the words, “ I order the defendant to paymaintenance,” and then struck them out repeating the word “ at ”and then completing the sentence with the words “ at the rate ofRs. 20 per mensem.” This, it is said, indicates that he intendedthat the maintenance ordered by him should be for mother andchild. Speculations as to the intention with which the Magistratedeleted those words is not a satisfactory method of interpreting
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what he has written. It is often extremely difficult to say why 1988.a writer in the middle of a sentence deletes certain words and then oabvut J.
• completes it, as the Magistrate did in this case. Sometimes it issimply a matter of a preference for a different form of expression. SttrwwgamIn a case such as this, it may be that the Magistrate proceeded,as he must often have done, to frame his order specifying the amountpayable to the child as in a case where maintenance is to be paidfor the child and for the mother; then, realizing that it was notsuch a case and no order in favour of the mother was to followhe struck out words which he deemed superfluous.
It is impossible to say with any certainty why the Magistratedid what he did.
The language of the order in its final form is at least capableof the interpretation for which the appellant contends. Thealternative interpretation suggested results in an order which ismanifestly wrong and not justified by the evidence. Evenassuming that the latter is a possible interpretation it is a case ofambiguity in which the presumption would be in favour of a rightorder and hence in favour of the appellant’s contention. But-for the reasons I have given, I think it is clear that this is an orderfor the maintenance of the child alone.
The order under appeal will be varied accordingly, and distresswarrant will issue for the recovery of an amount computed at therate of Bs. 20 for each month commencing July, 1906, till the dayon which this child attained the age of fourteen years—that is for atotal sum of Bs. 2,240.
Order varied.