Maintenance, a legal right and a moral duty

by Justice P.H.K. Kulatilaka

As this is an article focused on the general reader legal terminology has been avoided as far as possible. The term maintenance is not defined in the Maintenance Act. In the common parlance the term maintenance means providing a common household namely, food, clothing and other conveniences [shelter]. It was so mentioned in the D.C. Galle, Case No.1837

Beling and Vanderstaten’s (Digest 1846-1862 at page 107 per Morgan J). It is interesting to note that children’s duty to maintain their aged parents and husband’s duty to look after the wife and children are set out in the Mangala Sutta, ‘The support of mother and father, the cherishing of wife and children is the highest blessing’.

The social set up in which the common law principles relating to maintenance came up has been simply explained by Lord Denning in his book The Due Process of Law in the chapter under the heading ‘The story of emancipation'.

“The principle task of women is to bear and rear children and it is a task which occupies the best years of their lives. The man’s part in bringing up the children is no doubt is as important as hers, but of necessity he cannot devote so much of time to it. He is physically the stronger and she is the weaker. He is temperamentally the more aggressive and she the more submissive. All this was accepted as the natural state of affairs. Women themselves accepted it.”

Obedience

The thinking of the Christian Church which insisted on the obedience of the wife to her husband would have influenced the Common Law approach, - from Ephesians,V 22-24, ‘Wives submit yourselves unto your husbands for the husband is the head of the wife... so let the wives be subject to their husbands for everything,’ said St. Paul.

In fact, the Maintenance Ordinance of 1889 had been our Maintenance Law until it was repealed by the Maintenance Act No. 37 of 1999 was a creation of the English Common Law.

I have already mentioned that supporting your mother and father is the highest blessing. On December 20, 2014 when I was listening to a television program titled ‘Nana Pahana’ I was shocked to hear the plight of a mother whose four children are doing extremely well. Presently, she is an inmate of a home for the aged. She had been a teacher in a remote village off Nuwara Eliya. After the birth of her second child she left her job to look after the children.

Education

With the husband’s support she managed to put the children to some good schools in the town. To her dismay after the birth of the fourth child the husband deserted her. Nevertheless she saw to it that the children continued their education undisturbed.

The times were so difficult she had worked as a labourer in road construction to make ends meet. She said she was very happy that the children did well in their studies and are doing well in life.

But her happiness was short lived for they too deserted her and she was dumped into a home for the aged and never came to see her. She humbly wanted to know from the learned Bhikkhu why this happened to her.

A manager of a home for the aged told me there are a number of destitute parents in his home whose children are doing well, some of the children are in high positions but they hardly visit them.

Bhikkhu K. Nananda in his book From Topsy - turvydom To Wisdom Vol. 1 in Chapter 6 under the heading ‘Mother and Child’ explains succinctly the love of a mother to her child as follows: “Child is the symbol of a mother. That love for the child, the tenderness of the heart which characterises a mother is so significant that it is often associated with the change of red blood into milk’.

From the above circumstances spring the children’s moral duty of support and care for their parents and to look after them in the hour of need and in their dotage.

Indigent parents

Bhikkhu Ajahn Anan in his book Simple Teachings on Higher Truths describes the social reckoning of a person who does not support his indigent parents in the following terms ‘Even if we accumulates great wealth, many possessions and an esteemed position in society, if we show no gratitude or kindness towards our mother and father then we are without true wealth’. It is for readers to ponder.

Thus we see a religious sanction attached to the duty to support and look after one’s parents. The sin of neglecting them will come upon them in this birth as well and the next birth. That is an eternal truth. There is a social sanction as well. Infamy attached to it is that when the community in which he or she lives gets to know that here is a man or woman who ill treats the parents he or she will be looked upon as a social outcast. Yet for all the reality is that there is quite a large number of sons and daughters who are grownups and doing well now neglecting and ill treating their parents who were responsible for the bringing forth and bringing up process.

Neither the Maintenance Ordinance of 1889 which was the old law nor the present law under the Maintenance Act, No.37 of 1999 provided for it. But it does not mean that the Roman Dutch Law which deals with a child’s obligation to support needy parents had been abrogated. It still remains a part and parcel of our law.

Common Law

In Ambalavanar v Navaratnam 56 N.L.R. 422, Justice Sansoni after citing number of earlier cases held that a child’s obligation to support needy parents was a fundamental principle of the common law and that it still remains our law. An action for the needy and indigent parents though not provided for in the statute may be invoked under the common law in the District Court.

Justice Sansoni cited the case of Oosthuizen v Stanley [1938] A.D 327 where Justice Tindall held ‘The liability of children to support their parents is beyond question’. This judgement described the term ‘support’ in the following terms ‘Support includes not only food and clothing in accordance with quality and conditions to be supported but also lodging and care in sickness’ But the problem would be to find wherewithal to go for a legal remedy. We are quite aware of the cumbersome legal procedures involved in litigation. The Legal Aid Commission may be able to help them. The Director General is a retired Supreme Court Judge. Commission’s head office is housed in the High Court Complex in Colombo and most of the court complexes in the outstations have their separate offices.

Precautionary measures

If you have the slightest doubt that you will not be looked after by your children in your dotage and in the hour of need it will be a safer move to preserve your life interest when you transfer your housing property to the children.

The Roman Dutch Law which is the Common Law makes it possible in the case of gross ingratitude the donor being the father or mother to reclaim the property from the son or daughter who is the donee in a District Court action. See - Sivarasapillai v Anthonypillai 37 N.L.R 47 and Manuel Pillai v Nallamma 52 N.L.R. 221

It is pertinent to mention that until 1999 in terms of the Maintenance Ordinance it was the obligation of the man to maintain the wife. The wife had no reciprocal duty towards her husband. As I stated earlier that was the Victorian or English Common Law approach prevalent at the time. The new law which was introduced by the Maintenance Act, No. 37 of 1999 updated the law relating to maintenance in order to provide for the maintenance of children, Adult Offspring, Disabled Offspring and Spouses unable to maintain themselves, and to ensure compliance with the Provisions of the United Nations Convention on the rights of the Children.

One of the most significant departures from the old law is the mutual obligation of both spouses to maintain each other. The term ‘spouse’ is not defined in the Act. The Concise Oxford Dictionary gives the meaning ‘ a husband or wife’.

Lawful wife

In the case of Subramaniam v Pakkiamaledchamy 55 N.L.R 87 only a lawful wife could claim maintenance. The corollary would be only lawful husband could claim maintenance.

A simple interpretation of the wordings of the section 2 of the Act which provides for the maintenance of a spouse is that it would not include an ex-wife or ex-husband.

A decree granting a divorce in the District Court will put an end to a spouse’s right to claim maintenance under the Act. If there is an order for maintenance granted by the Magistrate either party can make an application to the Magistrate Court for cancellation the Order.

It is interesting to know that there can be instances where the marriage was not registered under the Marriage Registration Ordinance. What would be the position then? In view of the pronouncement by Justice Basnayake in Athai v Arumugam it may well be possible to entertain an application after considering evidence before him. In the above case there was evidence to show that a marriage ceremony had taken place according to Hindu rights.

The judge remarked ‘Once a marriage in fact is established a marriage in law is presumed’.

To be continued