Bringing up children, the right way
It is the mother and the father who have to give care and protection
for the reason it was they who bore the child to this world. That is the
natural law. In his book From Topsy-turvydom To Freedom, Bhikkhu K.
Nanananda in the chapter on Mother and Child says ‘The birth of a child
is at the same time, the birth of a mother to this world’.
The bond of attachment between a mother and her child may be
attributed to three reasons, firstly, the change of red blood into milk,
secondly, the warmth the child gets from the mother at the time he or
she sucks her nipple for milk and thirdly the eye contact. Thus a
presumption of a moral duty existed on the part of the mother until the
bringing forth and bringing up of the child is over.
There was no reason why the legislature should step in and introduce
legislation to impose a legal duty to maintain her child. Though the
father who was supposed to be the provider of protection and other
necessities of life to the child the legislature in its wisdom thought
it fit to impose a legal duty on him to maintain the child.
Hence the Maintenance Ordinance which was repealed by the Maintenance
Act in 1999 contained provisions to saddle the father with a legal duty
to maintain the child.
The preamble to the Ordinance read as follows, ‘An Ordinance to amend
the law relating to the maintenance of Wives and Children’. It resembles
what Mangala Sutta said, 'the cherishing of wife and children is the
highest blessing’ It contained a provision for the father to provide
maintenance to an illegitimate child as well. But the application had to
be filed within 12 months from the birth of such child.
Parents are duty-bound
The Maintenance Act which repealed the old law brought about some
sweeping changes to comply with the provisions of the United Nations
Convention on the Rights of the Child.
Primarily in the Act the term ‘child’ means any marital or
non-marital or adopted offspring who has not reached eighteen years of
age. Marital child or marital offspring are those born to parents who
In a court of law to establish their status the best evidence would
be the birth certificate. Adopted child or adopted offspring means such
child adopted under the provisions of the Adoption of Children Ordinance
or the Kandyan Law Declaration and Amendment Ordinance.
Non-marital means a child or offspring born to parents who are not
married. Under the repealed Ordinance such child was referred to as
The proviso to section 2  of the Act states that ‘no such order
[order for maintenance] shall be made in the case of a non-marital child
unless parentage is established by cogent evidence to the satisfaction
of the Magistrate. Under the old law a heavy burden was placed on the
mother of such child because her evidence had to be corroborated ‘in
some material particular by other evidence’.
What is meant by ‘cogent evidence’ is not defined in the Act nor is
their any decided case interpreting the phrase. The Oxford Advanced
Learner’s Dictionary gives the meaning ‘strongly and clearly expressed’.
I find even under the old law in our superior Courts took up a more
liberal approach regarding the requirement of corroborative evidence.
In the case of Dayananda v Karunawathie S.C. Appeal 51/92 G.P.S.de
Silva C.J. while stating that maintenance cases are ‘in the nature of
civil proceedings and have to be decided on a balance of evidence’ held
that on a consideration of the totality of evidence the order for
maintenance made by the learned High Court Judge was correct.
Since the requirement of corroboration of the mother’s evidence
relating to the paternity of the child has been taken away the learned
Magistrate can declare that the respondent is the father of the child if
he is satisfied with the credibility of the mother’s evidence alone.
This is in keeping with the principle laid down in section 134 of the
Evidence Ordinance that it is not the numbers but the quality of
evidence that is required to prove a case.
Denial of paternity
There can be some instances where the husband denies the paternity of
the child even though the child was born during the continuance of a
valid marriage. But in terms of section 114 of the Evidence Ordinance
there is the presumption of legitimacy that such child is the legitimate
child of the man.
The decided cases laid down that the inference of legitimacy can be
met by proof of one of the following facts, namely, [a] the man had no
access to the mother at any time when the child could have been begotten
within two hundred and eighty days ].[ b] that the man was impotent.
In the case of Sopi Nona v Marsiyan 6 N.L.R.379 the Supreme Court
held that it was necessary for the defence to establish the
impossibility of access of the husband to the wife at the time the child
was begotten. Layard C.J was of the view that ‘physical impossibility’
of access must be shown. But a more flexible interpretation was given by
the full bench decision in Jane Nona v Leo 25 N.L.R 241. It held that
the word ‘access’ in this context is used in the sense of ‘actual
intercourse’ and not ‘possibility of intercourse’.
Velenis v Emmie 55 N.l.R 95 was a case where a wife Emmie sued her
husband Velenis for maintenance for herself and a child Premawathie. The
husband admitted that Emmie was his wife but denied paternity of the
child. Swan J. held that the burden was on the husband to establish that
he was not the father of the child.
Now of course either party can move court for a DNA test. If the wife
asks for a DNA test and husband refuses, in all probability the court
will hold against him.
The sad thing is that in cases where the Court dismissed the
application for failure to establish paternity such child will be left
with no one to support him or her. The Act provides no solution or not
even a state grant to the needy child.
Another significant change is that both parents are legally bound to
maintain their marital child, non- marital child or adopted child.
All these categories are those who have not reached eighteen years of
There is a category called disabled offspring which includes any
marital, non- marital or adopted offspring of whatever age who is
physically or mentally disabled and incapable of earning a livelihood or
adequately supporting himself or herself.
This is a far reaching legislation. Even though any of the children
mentioned above reached 18 years of age if he or she is still unable to
maintain himself or herself the Magistrate may upon an application being
made and upon proof of such neglect or refusal to maintain the applicant
order such parent to make a monthly allowance for maintenance. Such
child is entitled for such maintenance till he or she reached twenty
five year. This category is referred to as ‘adult offspring’.
In the case of a ‘child’ or disabled offspring an application may be
made by such child or any person who has custody.
If it is in respect of an ‘adult offspring’ application may be made
by such adult offspring or where he or she is incapable of making such
application by any person on his or her behalf. [in this case even an
outsider can make the application].
These applications are free of stamp duty. An inquiry will be held
under Section 2 of the Act and if the Magistrate is satisfied with the
matters set out in the affidavit may make an order for maintenance.
Otherwise he will refuse the application.
If the respondent parent against whom such order was made failed to
comply, the punitive powers of enforcement will be invoked against such
No doubt the Maintenance Act No. 37 of 1999 brought some sweeping
changes into the law relating to maintenance. Nevertheless the plight of
such children whose paternity could not be established have no remedy
under the Act.
On the other hand there are hundreds of ‘street children’ and ‘beach
children’ whose pathetic cases have not been looked into.
I am reminded of an utterance made by a child prostitute named
Glyselle Palomar twelve years of age to Pope Francis during his recent
visit to the Philippines which is to the following effect,[ quote] Many
children are abandoned by their parents. Many children get involved in
drugs and prostitution. Why does God allow these things to happen.[AFT]
Since the Government of Sri Lanka has ratified the United Nations
Convention on the Rights of the Child the Government is duty bound to
protect the so called ‘street children’ and ‘beach children’ as well as
the other destitute children.
The writer is a former Director of the Sri Lanka Judges Institute.