MAINTENANCE LAW

LEGAL PROVISIONS AND DECIDED CASES ON MAINTENANCE LAW

Duncan Abeynayaka – LLB, Attorney At Law

 

MAINTENANCE ACT, No. 37 OF 1999

PREAMBLE

AN ACT TO PROVIDE FOR THE MAINTENANCE OF CHILDREN, ADULT OFFSPRING, DISABLED OFFSPRING AND SPOUSES UNABLE TO MAINTAIN THEMSELVES ; TO ENSURE COMPLIANCE OF THE LAW RELATING TO MAINTENANCE WITH THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD; AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO.

 

PARENTAGE (PATERNITY) - DNA

01. WEERASINGHE V JAYASINGHE 2007 (2) SRI L.R 50

May 24. 2007

DR. SHIRANI BANDARANAYAKE, J.

When this matter was taken up for hearing, learned Counsel for the appellant brought to the notice of this Court that there is a report of the DNA test, setting out the results that the appellant is not the father of the child of the applicant-respondent respondent (hereinafter referred to as the respondent). This Court had thereafter directed the appellant to obtain a special medical opinion on the DNA report, which was obtained from the GENETECH Institution.

“In the instant case, it is apparent that the respondent's evidence had convinced the Magistrate. In such circumstances, in terms of section 6 it was necessary for the respondent's evidence to have been corroborated by other independent evidence, where the question of paternity looms large, the mother's evidence would have to be corroborated by independent evidence".

Held further:                

(1) In cases where parentage (paternity) is in issue the most cogent evidence is likely to be obtained by blood tests in general and DNA tests in particular. Such tests may be used either to rebut the
presumption or allegation of paternity or to establish marriage".

(2) DNA profiling can establish parentage with a virtual certainty; DNA tests are also known as genetic finger printing could by matching the alleged father's DNA bands with that of the child's bands after excluding such bands that match the mother's would make positive finding of paternity with virtual certainty.
(3) The DNA test could be used by the appellant to rebut the allegation of paternity.

Section 6 of the Maintenance Ordinance deals with the rule requiring corroboration of the mother's evidence in proceedings for maintenance and is in the following terms: "No order shall be made on any such application as aforesaid on the evidence of the mother of such child unless corroborated in some material particular by other evidence to the satisfaction of the Magistrate."

The said provision is quite clear and what it stipulates is the necessity for the mother's evidence to be corroborated by other evidence. Such corroboration of the mother's evidence has been vital in establishing paternity and this was the approach of our Courts that considered matters even under section 7 of the Maintenance Ordinance, No. 19 of 1889, which section was an identical provision to that of section 6 of the Maintenance Ordinance. For instance, in the early decision of Angohamy v Babasinno (1910, 4 Weerakantha's reports 60), it was held by Wood Renton, J. that corroboration should consist of some evidence, oral or real, entirely independent of that of the applicant which renders it probable that her story as to the paternity of the children in respect of whom she is applying for maintenance is true.

 

BECOMING an ADULT OFFSPRING AFTER FILING A CASE

02. Don Tilakaratne Vs. Indra Priyadarshani Mandawala 2011 (2) SLR 280

"In addressing the question of whether the Magistrates Court can make an order under the Maintenance Act for continuous payment of maintenance for a person beyond the age of 18 years, but who was a 'child' at the time of submission of the application, section 2(5) states without qualification that allowance shall be payable from the date on which the application for maintenance was made.

When the application was made, the child's age was 17 years, 6 months and 27 days, and the maintenance owed to her for approximately 6 months prior to her eighteenth birthday goes unquestioned as during this period, the child is still a minor. Attention should be drawn to the fact that regardless of the status of provision of maintenance for the adult offspring, there was undoubtedly no question as to the maintenance owed to this one child who was still under the age of 18 at the time the application was made.

On turning 18, the Magistrate can, in accordance with section 2(5) of the said Act supra, order the Petitioner to continue payment of maintenance as long as the evidence suggests that the child is unable to maintain him or herself. Evidence clearly reflects that the Petitioner has not paid maintenance prior to this and this amounts to neglect or refusal and until the circumstances of the adult offspring changes and she is able to provide herself, the order of the Magistrate would remain in force.

The Courts have been in favour of interpreting the Maintenance Act in a flexible manner, so as to give effect to the intention of the legislature to provide a speedy remedy for evasions in the payment of maintenance. Thus, when the Maintenance Act does not contain a provision on the procedure in the action, a practical procedure that will meet the ends of justice pertaining to the facts of the case will be followed. In this case, the just course of action is that the Appellant should continue to support the child even after she turns 18, under circumstance set out in the Act and referred to above."

“The Respondent has submitted sufficient evidence to convince the Court that the adult offspring are unable to maintain themselves as they are in the process of receiving their higher education, are currently unemployed and unmarried. Section 4(I)(b) of the Maintenance Act No. 37 of 1999 states that:

An application for maintenance may be made where such application is for the maintenance of an adult offspring, by such adult offspring or where such adult offspring is incapable of making such application, by any person on his or her behalf.

In this case, the Respondent suggests that she is making the application on behalf of her children so as not to interfere with the ongoing education of her children and that the nature of the legal process is such that if the adult offspring in question had made the Application themselves, they would have had to attend Court and testify to the matters in order to obtain an order. Recognizing the practical realities of Court proceedings, this Court finds the reason to be a valid one. Thus, is shall be lawful for the. Respondent to proceed to claim maintenance in terms of the Maintenance Act No. 37 of 1999.

Further, it is evident from the record of this case that the Appellant is seeking to evade his liability to pay maintenance by preferring appeals and raising various objections before Court. If the adult offspring concerned had been the ones to submit this Application, as one can reasonably assume that in the light of the prevailing circumstances in courts that they would indeed have had to take considerable time away from their education in order to receive the maintenance that they are entitled to, and we therefore find the concerns of their mother both relevant and valid.”

 

QUANTUM – MOTHER’S MEANS

03. EDIRIWEERA VS. DHARMAPALA 69 NLR 45

In determining the quantum of maintenance payable by the father in respect of his child under section 2 of the Maintenance Ordinance, the fact that the mother is possessed of means is not a factor that should be taken into consideration.

November 29, 1965.

Alles, J.

In Sivasam y v. Rasiah (1943) 44 N. L. R. 241) the question that arose for decision was whether the ability of the wife to maintain herself was a factor which affected the quantum of maintenance payable by the husband. Soertsz, S.P. J. who delivered the order of the Court, analysed the provisions of section 2 in so far as it affected the wife and stated as follows :-

“These words, correctly interpreted; can only mean that while the right of children to maintenance depends on both their inability to maintain themselves and on the possession of sufficient means by the father, the right, of the wife to maintenance is conditioned only on the possession of sufficient means by the husband and is not affected by the fact, that she has sufficient means of her own. That conclusion emerges all the clearer when we read further down in the section the words of contrast providing for an order of maintenance for ‘his wife’ and for 'such child’: The word ‘such’ is used as an adjunct to the word ‘child’ and not to the word ‘wife’ in order to emphasize the fact- that in the case of the child, inability to maintain itself is one of the conditions upon which the father’s liability rests.”

 

HUSBAND AND WIFE AGREE TO LIVE SEPARATELY

04. GOONEWARDENE v. ABEYEWICKREME. 18 NLR 69

June 15, 1914. PERERA J.

Where a husband and wife agree to live separately by mutual consent, the wife may claim maintenance from her husband if she undertakes to return to her husband and live with him as his wife.

In the present case, if the applicant undertake to return to the defendant and live with him as his wife, but the defendant refuse to take her back or to have a suitable house in readiness for her, or found to be guilty of such conduct as renders it intolerable for his wife to live with him, I think that the applicant would be entitled an order in her favour.

 

RES JUDICATA

05. RANJITH VS. PIYASEELI (2006) 2 SRI L R. 325

FEBRUARY 17, 2006

The applicant respondent-respondent made an application under the Old Maintenance Ordinance praying for maintenance for her daughter. The Magistrate ordered the respondent to pay a certain sum of money. The Court of Appeal in appeal set aside the order on the ground that the respondent had not signed the application. The second application made by the respondent was dismissed on the ground that it violates the provisions of section 6, the respondent filed that third application under the new Maintenance Act. The applicant raised a preliminary objection that as the two previous applications made by the same applicant on behalf of the same child claiming maintenance from the appellant have been dismissed the respondent is not entitled to re agitate the same matter again. The Magistrate rejected the preliminary objection holding that the previous cases were dismissed on technicalities and not on the merits. The High Court affirmed the order of the Magistrate.

HELD:
(1) The provisions in sections 34,207 and 406 of the Civil Procedure Code which embody the principles of res judicata will not apply to maintenance proceedings.

(2) The Maintenance Act does not contemplate decrees. It deals with orders. Therefore an order made under the Maintenance Act is not a decree that comes under the expression all "decrees" in section 207. Unlike in section 188 of the Code the Maintenance Act does not provide that after the judgment is pronounced a decree be drawn up by the court.

(3) In any event none of the two previous maintenance applications were decided on merit. There was no adjudication in the two previous applications. The dismissal of the two applications on technical grounds cannot be regarded as "res judicata"

(4) In the two previous applications there were no judgments contemplated in section 184 of the Code, therefore the dismissal of the two applications will not operate as res judicata.

To constitute a judicial decision a res judicata, the decision must be on merits, it must be a final decision on the merits. It appears that a decision on issues in a case rather than on procedural grounds is a decision on the merits."

 

EVIDENCE OF THE MOTHER

06. KARUPPIAH KANGANY V. RAMASAMY KANGANY 52 NLR 262

SEPTEMBER 15, 1950. SWAN J.

Defendant was sued for maintenance for an illegitimate child born to one K, a deaf and dumb woman. The application was made by K’s father, and K herself did not give evidence.

Held, that section 6 of the Maintenance Ordinance cannot be interpreted to mean that the evidence of the mother is an essential requirement, that without it a Magistrate would have no jurisdiction to make an order for the maintenance of an illegitimate child.

 

 

TERM OF IMPRISONMENT

07. Siriwardnna v. Emalin 59 NLR 263

November 19, 1957. T. S. Fernando, J.

Where a person who is ordered to pay maintenance is in arrears for more than six months, the Magistrate has jurisdiction to sentence him to imprisonment, for a term which may exceed six months. In such a case, the maximum term of imprisonment is determined by section 8 of the Maintenance Ordinance and not by section 312 of the Criminal Procedure Code.