Bringing up children, the right way

by Justice P.H.K. Kulatilaka

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Hence the Maintenance Ordinance which was repealed by the Maintenance Act in 1999 contained provisions to saddle the father with a legal duty to maintain the child.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The Maintenance Act which repealed the old law brought about some sweeping changes to comply with the provisions of the United Nations Convention on the Rights of the Child.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 are married.

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 Under the repealed Ordinance such child was referred to as ‘illegitimate child’.

The proviso to section 2 [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’.

Superior courts

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’.

Whose burden?

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 age.

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.

Application

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 parent.

Changes

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.