059-NLR-NLR-V-36-SIVAPAKIAM-v.-SIVAPAKIAM.pdf
MAARTENSZ J.—Sivapakiam v. Sivapakiam.
295
1934Present: Maartensz 3
SIVAPAKIAM v. SIVAPAKIAM599—P. C. Colombo, 15,159
Maintenance—Person having sufficient means—Meaning of expression—Maintenance Ordinance, No. 19 of 1889, s. 3.
The expression “having sufficient means” in section 3 of the Mainte-nance Ordinance denotes a person who has a source of income or whohas wilfully abstained from earning an income.
^^PPEAL from an order of the Police Magistrate of Colombo.
H. V. Perera (with him Nadesan), for appellant.
A. Rajapakse (with him A. Wijeyeratne), for applicant, respondent.
Cur. adv. vult.
October 18, 1934. Maartensz J.—
This is an appeal from an order made under section 3 of theMaintenance Ordinance, 1889, by which the appellant was ordered tomake the respondent, his wife, a monthly allowance of Rs. 30 for hermaintenance.
There is no evidence of the ages of the parties, but they are describedas a young couple by the Magistrate in his judgment. There is someconfusion in the evidence regarding the date of the marriage. Accordingto the respondent she was married in October, 1932, and the Magistratehas adopted that date as the date of the marriage. According toher brother-in-law and the appellant the marriage took place inMay, 1933.
The appellant at the time of the marriage was a student at theAyurvedic College and had no means of his own, and the appellant andrespondent after their marriage lived with his mother in Deans road.After some time they left the house in Deans road and lived in various
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MAARTENSZ J.—Sioapakiam v. Sivapakiam.
houses in various parts of Colombo till October, 1933, when the respond*ent left the appellant and went back to her mother. She alleged thather husband treated her cruelly and refused to accept his offer to main-tain her on condition of her living with him. The learned Magistratewas of opinion that the offer was not a genuine one and that therespondent was entitled to refuse to live with the appellant as he hadhabitually treated her with cruelty. One of the grounds of appeal wasthat this finding was not justified by the evidence. I am unable tosustain this ground of appeal. There is evidence that the respondentwas assaulted by the appellant and I see no reason to disagree with theview taken by the Magistrate of that evidence.
The other ground of appeal was that the appellant has no means andwas therefore not a person against whom an order under section 3 of theMaintenance Ordinance, 1889, could be made.
It appears from the evidence of the applicant herself that the appellanthas no means of his own and that his mother made them an allowanceof Rs. 100 a month while they lived apart from her. This allowancewas according to the evidence of the mother stopped when the appellantreturned to her home after the respondent left him.
It is clear from the evidence that the appellant has no source of incomefrom property or employment or otherwise. Nor is there evidence thathe could earn and has wilfully abstained from doing so.
The appellant's contention was that he was not a person who “ havingsufficient means ” neglects or refuses to maintain his wife.
The expression “ having sufficient means ” meant, it was urged,having a source of income; for the respondent it was contended that itmeant not only a source of income, but also capacity to earn and that ifa husband was capable of earning he was a person to whom section 3 ofthe Maintenance Ordinance applied. The expression has not been thesubject of any local decision.
The law with regard to the maintenance of wives in India is containedin Chapter XXXVI. of the Indian Criminal Procedure Code. Section488 in that Chapter is very similar in terms to section 3 of the MaintenanceOrdinance. The expression “having sufficient means” has been con-sidered in cases in India, but the reports in which the decisions havebeen reported are not available and the extracts cited in the Comment-aries on the Indian Criminal Procedure Code by Roy and Sohoni are verybrief and the Commentators do not appear to be in agreement as to theeffect of the. decisions. I am therefore unable to rely on the Indiandecisions.
Section 3 of Ordinance No. 19 of 1889 took the place of sub-section(2) of section 3 of Ordinance No. 4 of 1841 enacted to amend the lawsrelating to vagrants. By the sub-section. “ every person being able whollyor in part to maintain his family” who left his wife without mainte-nance or support, whereby she became chargeable to or required to besupported by others was guilty of an offence.
The case of K. Michohamy v. A. Suddappu1 was a case **dersub-section.
i (.1883) 5 S. C. C. 198.
MAARTENSZ J.—Sivapakiam v. Sivapakiam.
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The only evidence of the ability of the defendant to maintain his familywas the statement of the prosecutrix that he was well able to do so.
Burnside C.J. in setting aside the order made against the defendantsaid “ the ability of the defendant to maintain his family is, therefore,the first element to sustain a prosecution under the Ordinance, and it isnecessary that some proof of the plaintiffs social and material conditionshould be given from which the Magistrate may be able to draw his ownconclusions as to the ability of the defendant, not only to maintain hisillegitimate child, but his family generally.
No doubt in the case of an able-bodied man very slight evidence wouldbe sufficient upon which the Magistrate would be justified in findingagainst the defendant, but yet there must be some facts before the Court,not the mere expression of an opinion by a witness, more particularlywhen that witness is the most interested party ”.
The Summary Jurisdiction (Married Women) Act, 1895 (58 & 59 Vic.c. 39), grants relief to a wife where, inter alia, her husband wilfullyneglects to maintain her. The Act of 1886 (49 & 50 Vic. c. 52),section 1, contained the words “being able wholly or in part to maintainhis wife ”. Although these words were omitted in the Act of 1895 it washeld in the case of Eamshaw v. Eamshaw *, that “ before they (the Justices)can find that there was wilful neglect they must be satisfied that therewere actual earnings at the time in question or that there was capabilityof earning means ” and that there would be wilful neglect if it was foundthat a man could earn money but that he wilfully abstained fromdoing so.
The principles laid down in the cases I have cited are, in my opinion,applicable to section 3 of the Maintenance Ordinance, and as there is noevidence that the appellant has any source of income or that he haswilfully abstained from earning an income, the appeal must be allowedand the order appealed from set aside. I am not prepared to dismissthe application as 1 think the minds of the parties were not directed tothe question of whether the appellant was a person “ having means ”actual or potential, the evidence led as to his means being apparentlyintended to enable the Magistrate to determine the amount which heshould order to be paid by way of maintenance.
I accordingly remit the case to the Magistrate to determine whetherthe appellant is a person having sufficient means to maintain 'his wifeand make order according to his finding on the question.
It will be open to the Magistrate to reduce the amount which shouldbe paid by way of maintenance in the light of the further evidence ledas to the means of the appellant but not to increase it. The appellantwill not be entitled to reopen the question of cruelty.
In determining whether the appellant has wilfully abstained fromearning, the Magistrate should consider whether he is in health andstrength and able to earn by work suitable to his past and presentcondition in life, and whether such work is readily attainable.
Sent back.