Maintenance, a legal right and a moral duty

by Justice P.H.K. Kulatilaka

[Part 2]

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.

Adultery

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 [1986] 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 granting maintenance.

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 present law.

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 [1837] 2 Lorenz Reports 136.

Nature of proof

Filing of the marriage certificate is the best evidence to establish marriage.

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 circumstances.

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 inquiry.

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 Maintenance Act.

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 19.17. 1993.

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 [2] of the Act.

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 without payment.

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 court.

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.

Concluded