058-NLR-NLR-V-44-SIVASAMY-Appellant-and-RASIAH-Respondent.pdf
Sivasamy and Rasiah.
241
1943 Present: Soertsz S.P.J., Wijeyewardene J., and Jayetileke J.SIVASAMY, Appellant, and RASIAH, Respondent.
998—M. C. Batticaloa, 5,973.
Maintenance—Application by wife—Wife possessed of means—Right to applyfor maintenance from husband—Maintenance Ordinance (Cap. 76),s. 2.
A wife, who is possessed of means, is entitled to claim maintenancefrom her husband provided he has sufficient means himself.Goonewardene v. Abeywickreme (17 N. L. R. 450) followed.
Silva v. Senaratne (33 N. L. R. 90) overruled.
rpHIS was a case referred to a Bench of three judges.
N. Nadarajah, K.C. (with him Kandesamy and M. D. H. Jayawardene),for applicant, appellant.—The question of law in this appeal is whethera married woman having sufficient means of her own is entitled to claimmaintenance from her husband under the provisions of the MaintenanceOrdinance (Chap. 76 ; Legislative Enactments). Sections 2, 4, and 10have a bearing on this question. It is submitted that a married womanhaving means of her own is entitled as of right to claim maintenancefrom her husband. Further, if a married woman earns and invests herearnings her right to claim maintenance is unaffected. Section 2 of ourOrdinance corresponds to section 488 of the Indian Code of CriminalProcedure. In the Rangoon case Maung Son v. Ma Thet Nul it washeld that the wife’s separate or independent means of support is notan element of consideration against her right of maintenance from herhusband. Inability to support oneself is a condition attached by thesection only to the child. The effect of our Ordinance on Common Lawrights was considered in Lamahamy v. Karunaratne' in connection withthe claim to maintenance of an illegitimate child. As regards the inter-pretation of the words “ change in circumstances ” occurring in section10 of our Ordinance see Chitaley on Criminal Procedure, p. 2479, and thecases there cited with reference to the corresponding Indian section.The legal position was clarified by Wood Renton C.J. in Gurvewardenev. Abeywickreme The contrary view of Macdonell C.J. in Silva v.Senaratne ‘ purports to follow an old case Cader Umma v. Calendran “which, however, was based on the Vagrants’ Ordinance. The correctview is expressed in Ukku v. Thambyar'. It is finally submitted that onthe evidence there is no proof that the wife is possessed of sufficient means.
S. Nadesan (with him Curtis and Chellappah), for defendant, re-spondent.—On the evidence the Magistrate was justified in holdingthat petitioner had ample means. Her petition of appeal reinforcesthat finding and in fact admits its correctness. On the question of lawit is submitted that section 2 -read together with Form 2 in the Schedule
1 (1004) 1 Cr. L. J. S83 at p. 886.4(1934) 33 N. L. R. 90.
– (1021) 22 N. L. R. 289.5(1863-1868) Ram 141.
3 (1914) 17 N. L. R. 450.6(1863-1868) Ram. 70.
242
SOERTSZ S.P.J.—Sivasamy and Rasiah.
to the Ordinance indicates that only a wife without means can makea claim for maintenance. The ambiguity in the use of the word “ itself ”in section 2 is resolved in the Form. This view is reinforced by theimplication of section 10 under which an order may be cancelled on proofof a “ change in circumstances What is contemplated is only a changein pecuniary circumstances—Chitaley: Criminal Procedure, p. 2480:(1935) A. I. ft. Lahore, p. 24; (1916) A. I. R. Madras, p. 567. Theobject of the Maintenance Ordinance is stated by Macdonell C.J. inSilva v. Senaratne (supra), and by Pereira J. in Ranasinghe v. Peries*.The case of Thankachiammah v. Sampanther‘ dealt with an applicationfor enhancing maintenance under section 10 of the Ordinance. Seefurther (1899) Koch’s Reps. 54 ; (1899) Koch’s Reps. 24; 1 Maasdorp 232.It is submitted that to ascertain the quantum of maintenance the Courtmust look to the income of the wife.
N. Nadarajah, K.C., replied.March 23, 1943. Soertsz S.P.J.—
Cur. adv. vult.
This is an application made by a wife, under the provisions of theMaintenance .Ordinance, for an order against her husband who, shecomplains, having sufficient means to support her, refuses to fulfil thatobligation.
The application is opposed by the husband on the ground that his wifc-has sufficient means of her own for her support and maintenance.
The learned Magistrate found, on the evidence before him,, that theapplicant had resources from which she could contrive to supply her needs,and in view of this finding, he said that the ruling given by Macdonell C.J.in the case of Silva v. Senaratne (supra) left him no alternative but todismiss the application inasmuch as the contrary view taken by WoodRenton C.J. in the earlier case of Goonewardene v. Abeywickreme (supra)was taken obiter and had to yield to it. '
In the former case, Macdonell C.J. held that a married woman who ispossessed of sufficient means to support herself is, by that'fact alone,debarred from claiming maintenance from her husband under theMaintenance Ordinance.
In the latter case Wood Renton C.J., while disposing of the appeal onthe ground that the applicant was not possessed of sufficient means to. support herself, expressed the opinion, after careful consideration of allthe authorities cited in the course of a full argument, that a marriedwoman living apart from her husband, not of choice, and through nofault of hers, is not precluded from claiming maintenance by the factthat she has sufficient means of her own. Unfortunately, this case does notappear to have been cited to Macdonell C.J., when he was dealingwith the case of Silva v. Senaratne, and a conflict of views on an importantquestion has thus resulted. Hence this reference to a Divisional Bench.
The first question that arises for consideration is whether, so far aswives are concerned, 'the Maintenance Ordinance provides a certainmeasure of relief to indigent wives alone, and it seems to me that there
1 (1909) 13 N. L. R. 21.
1 (1922) 24 N. L. R. 230.
SOERTSZ SJJ.—Sivasamy and Rasiah.
243
need be no difficulty in answering that question if we guide ourselves by theplain words of the relevant sections of that Ordinance. Section 2 says : —“If any person having sufficient means neglects or refuses to main-tain his wife, or his legitimate or illegitimate child unable to maintainitself …. the Magistrate may order such person to make amonthly allowance for the maintenance of his wife or such child
I)
These words, correctly interpreted, can only mean that while the rightof children to maintenance depends on both their inability to maintainthemselves and on the possession of sufficient means by the father, theright of the wife to maintenance is conditioned .only on the possessionof sufficient means by the husband and is not affected by the fact that shehas sufficient means of her own. That conclusion emerges all the clearerwhen we read further down in the section the words of contrast providingfor an order of maintenance for “ his wife ” and for “ such child ”. Theword “ such ” is used as an adjunct to the word “ child ”, and not tothe word “wife” in order to emphasize the fact that in the case of thechild, inability to maintain itself is one of the conditions upon which thefather’s liability rests.
In the case of Goonewardene v. Abeywickreme, as well as in this case,Counsel for the husband sought to interpret the words “ unable to main-tain itself ” as qualifying both the antecedent words “ wife ” and “ child ”,and in support of that interpretation, they relied on Form 2 in theSchedule of the Ordinance. Wood Renton C.J., appears to have agreedthat in that form “ inability to maintain ” was applicable to the wifealso, but he disposed of the argument with the words of Lord Penzancein Dean v. Green 8 P.D. 89, that “ it would be quite contrary to therecognized principle upon which Courts of Law have to construe Actsof Parliament to restrain the operation of an enactment by any referenceto the words of a mere form given for convenience sake in a schedule”.But, for my part, I am unable to agree that in the Form, inability tomaintain is made applicable to the wife. What, in my opinion, theForm does is to change the neuter “ itself ” in section 2 into the masculine“ himself ” and the feminine “ herself ” to be applied in that way to thecase of a male or female child respectively. Be that as it. may, the wordsof the section are clear and they must govern the question. While theword “ child ”, in its equivocation as to sex, makes the word “ itself ”the appropriate pronoun to use that pronoun to refer to the antecedent“ wife ” would be to cast a thoroughly unwarranted aspersion on a per-fectly unambiguous sex. The only instance that occurs to me on whichsuch a disparagement was implied is that in which Virgil, regardless ofobvious sex, spoke of.“ varium et mutabile semper femine But that waspoetic licence indulged in to depict a mood of intense disappointment,and we are interpreting "the stolid prose of Legislators.
I read section 2 of the Ordinance as entitling a wife to claim main-tenance in virtue of her wifehood alone and to obtain it by proof thather husband has sufficient means.
Sections 3 mid 4 follow and state the only circumstances .in which ahusband, although possessed of sufficient means, may repel his wife’s
244
SOERTSZ SJP.J.—Sivasamy and Rasiah.
claim to maintenance. Except in those circumstances, there are no “wordsin the Ordinance that debar a wife from asking for maintenance, not-withstanding the fact that she is able to support herself.
But, it is contended that by the implication of section 10 of the Ordi-nance a wife must satisfy the Court that she has no means of her ownin order to obtain an order against her husband. I have scrutinizedthat section, but I cannot find that there is, necessarily, such an implica-tion. Section 10 is as follows: —
“ On the application of any person receiving or ordered to pay amonthly allowance …. and on proof of a change in the cir-
cumstances of any person for whose benefit or against whom an order…. has been made …. the Magistrate may either cancel
such order or make such alteration in the allowance ordered as he deemsfit.”;
The words relied on for the implication contended for are the words Ihave underlined and, upon them, it is argued that, conceivably, the onlychange of circumstances upon proof of which an order for maintenancein favour of a wife can be cancelled is that she has passed from a conditionof incapacity to maintain herself to one of such capacity. But, thatargument ignores the fact that an order made in favour of a wife may becancelled upon proof of a change in the circumstances of the husbandagainst whom an order has been made. Section 10, although com-pendiously framed, refers to all the relevant changes in circumstancesupon proof of which an order for maintenance may be either cancelledor- altered, at the instance of either party. The section must, however, beconstrued not independently, but in the light of the o,ther provisions ofthe Ordinance.
For these reasons, I am of opinion that, on a correct interpretation ofthe various provisions of the Ordinance itself, a wife possessed of meansis entitled to claim maintenance from her husband provided he hassufficient means himself.
And that is as it should .be for, as observed in the Judgment deliveredby Creasy C.J. and Thomson J. in Ukku.v. Thambia (Ram. 1863-1868, p. 71):“ the husband, by the marriage contract, takes upon himself theduty of supporting and maintaining his wife so long as she remainsfaithful to the marriage vow. ”
■ That is the position as stated by such commentators on the Roman-DutchiLaw as Wessels, Nathan, and Maasdorp, and J have hot been able to findthe source—if such exists^—from which Middleton A.C.J. derived the pro-position advanced by him obiter that “ a claim for maintenance, of course,implies that the claimant has no means of her own ”—Ranasinghe v. Peries As pointed out by Wood Renton C.J., in the case already referred to,the only limitation placed upon the right of a wife' to maintenance is, asstated by Maasdorp, Vol, 1, pp. 30-31, that maintenance may be withheld,as a matter of Judicial discretion, where a wife is provided with amplemeans, and. the husband is not in a position to contribute to her support”.That is the position tinder the Maintenance Ordinance too. The contraryview would lead to the appalling result that a fickle husband, having
'1 13 N: L. R. 21.
A laris and Wijeysekere.
245
enjoyed the consortium of a wife possessed of means so long as it pleasedhim, may, on wearying of it, turn his wife adrift and free himself of allhis obligations to her.
The Judgment of Macdonell C. J. in Silva v. Senaratne1 proceeds upon theview that “ the reason for allowing proceedings by a wife against a husbandfor maintenance is obviously lest the wife becomes a public charge”,and the learned Chief Justice says that that is the ratio decidendi in,Cadera Umma v. Calendren (Ram. 63-68, p. 141.) But that was a casein which the husband was charged as a vagrant, the alleged vagrancybeing based on the ground that he had failed to support his wife, and itwas held that he was not liable to be punished as a vagrant when, inpoint of fact, the wife was, as in that case, supporting herself on moneyborrowed on the husband’s credit. That case differs toto caelo from acase such as this which arises under the Maintenance Ordinance which isnot concerned with questions of vagrants and vagrancy and has for itsavowed purpose the provision of maintenance for wives and children.
For the reasons I have stated I respectfully agree with the view ofWood Renton C.J. and I am of opinion that the Order made by theMagistrate is wrong.
1 would, therefore, remit the case to the Magistrate so that he may fixsuch monthly allowance as he thinks fit, having regard to the meansof the husband. The applicant is entitled to her costs.
Wijeyewardene J.—I agree.
Jayetileke J.—I agree.
Appeal allowed.
♦