010-NLR-NLR-V-46-PARUPATHIPILLAI-Appellant-and-KANDIAH-ARUMUGAM-Respondent.pdf
JAYETIIiEKjb . —Parupathipillai and Kandiah Arumugam.
36
Present: de Kretser J.
PARUPATHTPILLAI, Appellant, and KANDIAH ARUMUGAM,
Respondent.
534—M. C. Jaffna, 4,174.
Maintenance—Order for maintenance in favour of wife—Application for distresswarrant for arrears of maintenance—Compromise by payment of lumpsum—Compromise not valid.
The appellant obtained an order for maintenance against her husband,the respondent, under which Bhe was entitled to receive a sum of Bs. 8per mensem. Subsequently, on an application for a distress warrantagainst the respondent for arrears of maintenance, the parties enteredinto a compromise in Court by which the applicant received a sum ofBs. 200, waiving all claims to future maintenance.
Held, that the compromise was not valid and did not relieve therespondent of the obligation of maintaining his wife.
PPEAll from an order of the Magistrate of Jaffna.
N. Kumarasin-gham for applicant, appellant.
H. W. Thambiah for defendant, respondent.
Cur. ailv. vult.
December 21, 1944. Jayetileke J.—j'
The appellant is the wife of the respondent. She married the re-spondent in, 1932 and lived with him till the beginning of 1937. OnOctober 1- 1937, she made an application in case- No. 7,369, M. C., Kayts,for an order against the respondent under section 3 of Ordinance No. 9of 1S89 for her maintenance. In the application she said that therespondent was a Police Constable and was drawing Rs. 45 a month.On November 18, 1937, the Magistrate made an order by consent thatthe respondent should pay to the appellant for her maintenance l/4thof his nett salary every month. In pursuance of that order the respondentappeal's to have paid the appellant Rs. 6 a month. On December 14,1939, the appellant stated that 'she was entitled to receive more thanRs. 6 a month and moved for an enquiry. On March 29, 1940, thematter was settled and the respondent agreed to pay Rs. 8 a month. OnApril 15, 1943, the appellant obtained a distress warrant for the recoveryof five months’ arrears of maintenance. On May 14, 1943, the partiesappear to have arranged a comprise. The journal entry reads—
“ Distress warrant twice returned by Fiscal unexecuted as respondentis not possessed of any movable property. Demand made of himwas not complied with. The respondent pays Rs. 200 in court. Theapplicant receives same waiving all future claims for maintenanceagainst the respondent. The applicant signs the record ”.
At this date the arrears of maintenance amounted to Rs. 56. Theapplicant has presumably agreed to accept Rs. 144 in lieu of futuremaintenance. There can be no doubt that this is a hard bargain.
On March 4, 1944, the appellant made an application in this casealleging that the respondent failed to maintain her for five months. Shehas not explained in her application what she did with the money that
3tfJAYETILEKE J.—Parupathipillai and Kandiah Arumugam.
was paid to her. She was paid sufficient money for her maintenance for18 months. The Magistrate held that the compromise made by theappellant was binding on her and dismissed the application. Theappeal is against that order. The question whether a compromise ofthis nature is valid in law has been considered in three reported cases.
In Madduma Hamy v. Kalu Appu 1 the applicant and the respondent,had entered into an agreement in writing by which the applicant agreedto relieve the respondent of the burden of maintaining her and their.children. Clarence J. said : —
“ Such an agreement as this between husband and wife is invalid ".
In Nakamuttu v. Kanthan 2 the applicant received from her husbanda sum of Rs. 50 for the maintenance of herself and their children duringtheir lifetime. Grenier A.J. said—
“ The obligation on the part of the husband to maintain his wife andchildren is a continuing one and he cannot relieve himself of the liabilityby entering into an unconscionable bargain as in this case, with themother. The case no doubt, would be different if the husband in-vested some money for his wife and allowed her to take the interestfor her maintenance ”.
These cases were cited with approval in Hhmihamy v. Gunawardana ■1In that case the mother of five children applied for an order of maintenanceagainst their father and the Magistrate made an order requiring thelatter to pay a certain sum monthly.. Subsequently the respondentapplied to the Magistrate and obtained an order sanctioning the paymentof a lump sum of Rs. 250 in respect of the claim for maintenance of thechildren in full discharge of the maintenance payable by him. Some-time later the applicant applied again for an order for maintenance. TheMagistrate considered that the compromise did not discharge the re-spondent and ordered that the maintenance should continue. Inaffirming the order made by the Magistrate, de Sampayo J. said :
“ The Ordinance does not contemplate the settlement of a lump sum.It only provides for making a 1 monthly allowance ’. The paymentof a lump sum may. of course, negative the basis of the application,namely, that the father neglects or refuses to maintain his children.But in such a case the money should be. so settled as to ensure thecontinued maintenance of the children. But in this case the incometo be derived from Rs. 250 is by no means sufficient to maintain fivechildren. It was never invested or secured. The mother appears tohave exhausted it and the children are presumably left once morewithout maintenanceThe appellant relies on the circum-
stances that the’ court had sanctioned the compromise in this, butI do not think it makes any material difference ”.
Both under the Roman-Dutch law and the English law the husbandis bound to maintain his wife in a manner suitable to her rank and position.The wife can compel her husband to perform this duty by a civil action.
* 1 S. C. D. 48.
3 S. C. C. 132.
3 3 C. L. B. 163.
JAYETXLEKE J.—Parupathipillai and Kandiah Arumugam.
87
The Maintenance Ordinance was enacted to provide a simpler, morespeedy and less costly remedy (see Subaliya v. Kannangara
In Hyman v. Hyman3 the question arose whether a wife whocovenanted by a deed of separation not to take proceedings against herhusband to allow her alimony or maintenance beyond the provisionmade for her by the deed and thereafter obtains a decree for dissolutionof the marriage on the ground of her husband’s adultery is not precluded byher covenant from petitioning the court for permanent maintenance.In the course of his judgment Lord Atkin said :
“ While the marriage tie exists the husband is -under a legal obliga-tion to maintain his wife …. But the duty of the husband isalso a public obligation, and can be enforced against him by the Stateunder the Vagrancy Acts and under the Poor Relief Acts. When themarriage is dissolved the duty to maintain arising out of the marriagetie disappears. In the absence of any statutory enactment the formerwife would be left without any provision for her maintenance otherthan recourse to the poor law authorities. In my opinion the statutorypowers of the Court to which 1 have referred were granted partly in thepublic interest to provide a substitute for the • husband’s duty ofmaintenance and to prevent the wife from being thrown upon the publicfor support. If this be true the powers of the Court in this respectcannot be restricted by the private arrangement of the parties.‘ Quilibet potest renunciare juri pro se introductu ’.‘ I beg atten-
tion to the words ‘ pro se ’,’ says Lord Westbury in Hunt v. Hunt,' because they have been introduced into the maxim to show that noman can renounce a right of which his duty to the public and theclaims of society forbid the renunciation- ’. To apply another maxim,* Privatorum conven-tio furi publico non derlgat ’. In my view noagreement between the spouses can prevent the court from consideringthe question whether in the circumstances of the particular case itshall think fit to order the husband to make some reasonable paymentto the wife ’ having regard to her fortune, if any, to the ability of herhusband and to the conduct of the parties. The wife’s right to futuremaintenance is a matter of public concern which she cannot barteraway’ ”.
These observations seem to me to indicate that a compromise of thenature entered into by the appellant in this case ought to be set asideon grounds of public policy. I would accordingly set aside the orderappealed from and send the case back so that the Magistrate may makean appropriate order under section 5. He will ascertain what sum was dueto the appellant as arrears of maintenance on May 14, 1943, and forwhat period the balance, if any, out of the money paid to her wassufficient for her maintenance. The appellant is entitled to the costsof the appeal.
1 4 N. L. R. 121.
Appeal allowed.11929 A..C.. 601.