Maintenance, a legal right and a moral duty
This doctrine of putative marriage was applied by Justice Weeramanry
in the case Fernando v Fernando 70 N.L.R 534 in granting maintenance to
eight children of such a putative marriage. In the course of his
judgement he said that in the absence of evidence to the contrary the
respondent must be presumed to have entered into the marriage bona fide
[in good faith] and as such the law in regard to putative marriage would
apply and the children of the union would be deemed to be legitimate.
Proviso to section 2 of the Act sets out two such situations, namely,
the court will not make such order if the applicant spouse is living in
adultery at the point of time when the application was made. See Justice
Atukorale's judgment in Balasingham v Kalaivani  2 Sri.L.R. 378.
Hence if the applicant is guilty of a continuing adulterous conduct he
or she will be shut out from getting an order for maintenance.
Interestingly, isolated acts of adultery will not be a bar. The
respondent spouse has to prove that the applicant spouse was leading a
life of continuous adulterous conduct to justify his or her refusal to
maintain the applicant spouse.
The court will not make an order for maintenance if the spouses are
living separately on mutual consent.
There are cases where the applicant spouse who is living separately
for the reason that he or she had to desert the matrimonial home owing
to acts of cruelty by the respondent spouse. If the applicant satisfies
court as to the truthfulness of the version the court will make an order
The cruelty need not necessarily be physical cruelty. It includes
mental cruelty as well - see Somawathie Dias v Alwis 66 Ceylon Law
Weekly 30. Even though this case relates to an applicant wife then the
same principle would apply to the case of a husband as well under the
There can be cases where the respondent spouse will offer an
invitation to the applicant spouse back to the matrimonial home. Such an
invitation is possible for the court will not interfere whenever a
settlement is available. But he or she has to satisfy court that it is a
genuine one. It was so held in the case of Sadil Hamy v De Soyza 
2 Lorenz Reports 136.
Nature of proof
Filing of the marriage certificate is the best evidence to establish
In the case of a putative marriage evidence has to be led to the
satisfaction of court that in fact there exist such a marriage between
the parties. In her or his application for maintenance it is necessary
to indicate that the applicant is unable to maintain herself or himself.
The respondent spouse might lead evidence to point out that the
applicant is able to maintain himself or herself.
The onus or burden lies on the applicant to satisfy court that the
respondent is having sufficient means. The applicant spouse has to prove
that the respondent spouse having sufficient means, neglects or
unreasonably refuses maintain her or him. In deciding the quantum of
maintenance monthly allowance to be ordered the Magistrate will take
into consideration the respondent spouse's income, means and
To enable the Magistrate to decide the quantum of maintenance the
applicant has to place before him the respondent's income and other
means. If the respondent does not admit he can challenge it at the
Having sufficient means
It is interesting to note that in interpreting the phrase 'having
sufficient means ' in the Maintenance Ordinance in relation to a husband
it was held that the phrase includes not only his actual income but the
potential means and also the capacity to earn money. It was so held in
the cases of Sivapakiam v Sivapakiam 36 N.L.R. 295 and Rasamany v
Subramaniam 50 N.L.R. 84.
Such application may be made by such spouse or where such spouse is
incapable of making such application by any person on her or his behalf.
It is the Magistrate Court within whose jurisdiction the applicant
spouse resides or the person against whom such application is made
[respondent spouse] resides which has the power to hear the case.
Every such application should be supported by an affidavit. If the
magistrate is satisfied with the facts set out in the affidavit he will
issue summons on the respondent spouse. Every summons to a respondent or
witness is free from stamp duty. See Section 10 and 11 of the
Under the old law namely, the Maintenance Ordinance even though there
was no provision for an interim order for payment of a monthly allowance
until a final order was made a practice had come up to that effect.
But under the Maintenance Act proviso to section 11 specifically
provides for the Magistrate in his discretion at any time to make such
interim order for the payment of an monthly payment.
Balance of evidence
The final inquiry will be held in terms of section 2 of the Act. In
relation to appeals under the Maintenance Ordinance the Supreme Court
held that the proceedings in maintenance cases are civil in nature and
should be decided according to the balance of evidence. The same
principle ipso facto will be applicable to the maintenance inquiry under
the Act. Thus in these proceedings inculpatory statements made by a
respondent spouse to a police officer will not be shut out. Vide -
Civakannipillai v Chuppramanian 2 N.L.R 4.
[b] Dayananda v Karunawathie , S.C.Appeal No. 51/92. Decided on
At the inquiry under section both the applicant spouse as well as the
respondent spouse along with their witnesses will give evidence upon
oath or affirmation. Each spouse is a competent witness against the
other spouse. If the respondent spouse is absent the Magistrate may
proceed to inquiry against him in absentia, vide section 12  of the
On a consideration of the totality of evidence If the applicant
spouse is successful in pursuing the application to the satisfaction of
the Magistrate as to the ingredients mentioned in section 2 of the Act
he will allow the application and order the respondent spouse to make a
monthly allowance to the applicant.
On the other hand if the applicant spouse fails to satisfy the
Magistrate as required under the aforesaid section the Magistrate will
make order refusing the application.
The applicant spouse is entitled to a certified copy of the order
Right of appeal
Any person aggrieved by such order may prefer an appeal to the
Provincial High Court. Unless there is a stay order by the High Court
the Magistrate will proceed with the enforcement of his order. If any
such stay order is issued reasons have to be given.
The Maintenance Act provides for an aggrieved party to prefer an
appeal against the High Court Order as well to the Supreme Court on a
question of law.
Another interesting feature is the Act does not deprive a spouse to
maintain a civil action for maintenance.
The respondent spouse cannot disregard or neglects to comply with the
order. Section 5 of the Act confers punitive powers to the Magistrate.
The Magistrate has the power for every breach of the order to sentence
the respondent for the whole or any part of each month's allowance in
default, to simple or rigorous imprisonment for a term which may extend
to one month.
If the respondent is an employed person and that he or she has
defaulted in the payment of maintenance for a period exceeding two
months the Magistrate after an inquiry make 'an attachment of salary
order' directing the employer to deduct the amount specified in the
order and forthwith remit it to the applicant in the manner directed by
In fact these are social legislation brought in with a view to
safeguard the interests of indigent spouses who are unable to maintain
themselves and the courts act as their guardians. 'Under the modern law
when a woman marries she has as much right to her freedom to develop her
personality to the full as a man'. So stated the most respected English
Judge Lord Denning.
In bringing up the family her contribution is as important as the
husband. She is his equal partner. The corollary is that when they sever
their relationship for one reason or the other each has a legal duty to
maintain the other if he or she is indigent and unable to maintain
himself or herself until divorce.
The writer is a former Director of the Sri Lanka Judges Institute.