008-SLLR-SLLR-1989-V-2-KUMARI-MENIKE-v.-ALUWIHARE.pdf
CA
Kumari Menike v Aluwihare
91
KUMARI MENIKE
v.ALUWIHARE
COURT OF APPEAL
A. DE Z. GUNAWARDANA, J.
CA 87/86 – M.C. KANDY (MAINTENANCE) NO. 436/84NOVEMBER 2. 1989,
Maintenance – Application by mother – Right to claim maintenance is a right vestedin the child – Child maintained on charity by third party temporarily, does not lose theright to claim' maintenance – Who can file application for maintenance for a child -Can maintenance be ordered to be credited to the child's account?
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At the inquiry before the Magistrate it transpired'that the child is being maintainedtemporarily by a 3rd party. The Magistrate dismissed the application for maintenancestating that the question of paternity need, be decided only if an order for maintenancehas to be made.’
The requirements for entitlement for maintenance, under sections of, the MaintenanceOrdinance are,,
. that the child is a "legitim'ate or Illegitimate child"; arid
that such child is unable to maintain itself.
The fact that the child is being maintained by someone else at present' does not affectthis right.
A child may be said to tie able to maintain .himself where such child has means of hisown from which such child will derive sufficient income to maintain himself. "A childwho is dependent on charity cannot be said 'to be able to maintain itself ".
In the Maintenance Ordinance a person who can rhake an application on behalf .of achild is not specified, so that any person, can bring the matter to the'notice of the courtin the form required in the Ordjnance. In such an application, the applicant being themother or any other, would not be entitled to waive the right to claim maintenance asthe right is a right vested in' the child by virtue' of the provisions of the MaintenanceOrdinance.
It is not inappropriate to make an order to credit the,monies for maintenance to anaccount to the credit of the child, if the child is maintained on charity at present.
92
Sri Lanka Law Reports
[19891 2 Sri LR
Cases referred to :
Gunasekera v. Ahamath 33 NLR 241
Tenne v. Ekanayake 63 NLR 544
S.F.A. Cooray with Edward Rodrigo for applicant-appellant
Jayampathy Wickremaratne with Sampath Abeykoon lor defendant-respondent
Cur. adv. vult.
November 30, 1989.
A. DE Z. GUNAWARDANA, J.
The Applicant-Appellant filed an application against theRespondent-Respondent in the Magistrate’s Court of Kandy claimingmaintenance for her and her illegitimate child Priyangika Kumari. Itwas alleged in the said application that the Respondent-Respondentwas the father of the said child who was born on 28.7.83. This casewas taken up for inquiry before the Magistrate, Kandy and in thecourse of the cross-examination of the Applicant-Appellant ittranspired that the child at present is being maintained by someoneelse. According to her soon after birth the child was taken over by amid-wife who was working at the hospital. However, the child is notlegally adopted by the said midwife. At- that stage of the inquiry, thequestion was raised as to whether the applicant can proceed with thisapplication because the child is being maintained by another partyfrom the date of her birth. The Applicant-Appellant further admitted incross-examination that she does not incur any expenses for themaintenance of the child, as. at present. The Applicant-Appellant alsostated that although she had asked for the return of the child from thesaid person who was maintaining the child at present, that personhas, refused to hand back the child.
The learned Magistrate has taken the view that the question ofpaternity need, be decided only if an order for maintenance has to bemade. Since the child is now maintained by someone else and theApplicant-Appellant is not incurring any expense for the maintenanceof the child,, the learned Magistrate has decided that an order formaintenance is not necessary and has dismissed the application ofthe Applicant-Appellant. This appeal is from the said order of theMagistrate dated 25.6.86.
Kumari Menike v. Aluwihare (A. De Z. Gunawardana, J.)
93
CA
Counsel for the Applicant-Appellant submitted that the right to claimmaintenance is a right vested in the child under section 2 of theMaintenance Ordinance, and the fact that the mother had made theapplication does not entitle the mother to . waive that right. It shouldbe noted that the requirements for entitlement to maintenance undersection 2 of the Maintenance Ordinance are:
that the child is a “legitimate or illegitimate child" and
that such child is “unable to maintain itself.” The fact that achild is being maintained by someone as at present does not affectthis right.
The child may be said to be able to maintain himself where suchchild has means of his own from which such child will derivesufficient income to maintain himself. This may also be said wherethe child has a legal right to claim maintenance from another personfor e.g. where a child had been legally adopted by another under anorder of Court. In such situations it may be argued that maintenanceis not payable for such child as he has sufficient means to maintainhimself or has a right to claim maintenance on a legal basis from aperson other than the natural father. Therefore where no suchcircumstances are proved by the natural father his liability to maintainthe child will persist. In the case of Gunasekera vs. Ahamath (1)MacDonell, CJ in considering a case Where the child was maintainedby charity of a 3rd person has stated that, “A child who is dependenton charity cannot be said to be ‘able to maintain itself' ”. Thus in thiscase too, the fact that a 3rd party is maintaining the child as atpresent, would not deprive the right conferred by the MaintenanceOrdinance on an illegitimate child to claim maintenance from hisnatural father.
. In the Maintenance Ordinance the person who can make anapplication on behalf of a child is not specified, so that any personcan bring the matter to the notice of the Court in the form requiredunder the Ordinance; then the Court will be required to make anappropriate order. Any Applicant whether it be the mother of anyother, would not be entitled to waive the right to claim maintenanceas the right is a right vested with the child by virtue of the provisionsof the Maintenance Ordinance. An application for maintenance neednot necessarily be made by the mother. Any person interested in thechild can do so. In the case referred to above (Gunasekera vs.
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119891 2 Sri LR
Ahamath) the application for recovery of arrears of maintenance wasmade by an uncle of the child who was the brother of the deceasedmother of the child. In the case of Tenne vs. Ekanayake (2), theapplication for maintenance was made by the grandfather of thechild, who was maintaining the child.
It is important to note here that section 6 of the MaintenanceOrdinance requires that an application for maintenance should bemade within 12 months from the birth of the child or within 12 monthsfrom the father of such child ceasing to maintain such child; unlessthe father had been out of this country during the preceding 12months of the said application. If the order of dismissal made by thelearned Magistrate of the present application is allowed to stand thechild’s right to claim maintenance from the alleged father will be lostto him for ever, because in the event that the child wants to claimmaintenance on a subsequent date, he would not be able to revivethe ;ight since 12 months have passed from her birth and/or from thedate the alleged father ceased to maintain her. Therefore, it isnecessary that such child should not be deprived of the right to claimnriaintenance merely because such child is being maintained by thecharity of some 3rd person, as at present. Hence it is necessary thatthe right of the child should be consolidated within the legallyspecified period, so that the child would be able to fall back on themaintenance payable by the father whenever she needs it. If in factthe child is being maintained from the charity of a 3rd party atpresent, the court would be entitled to make an order formaintenance to be remitted to an account so that the child can drawon it when the need arises. Such an order had be.en made by thelearned Magistrate in the case of Gunasekera vs. Ahamath, and theSupreme Court has approved the said order. In the instant case too,it would not-be inappropriate to make an order to credit the moniesto an account, to the credit of the child, in the event an order formaintenance is made.
For . the above reasons I would accordingly set aside the order ofthe learned Magistrate dated 25.6.86 and remit the case back forfurther proceedings to be taken according to law.
-The Applicant-Appellant will' be entitled to the costs of this appeal.Appeal allowed.
Case sent back for inquiry to proceed.