KARUNAPALA

Vs.

LIYANAGE

SUPREME COURT
ALUWIHARE, J.
MALALGODA, J.
FERNANDO, J.
SC/APPEAL/126/2014
SC/SPL/LA/74/14
HC/AP/13/2011
MC KANDY M/5240
OCTOBER 12, 2018

Maintenance Act, No. 37 of 1990, sections 2, 8, 11-Unable to maintain himself or herself-Sufficient means-Burden of proof

The applicant wife filed a maintenance application against the respondent husband seeking maintenance for herself and the child. The application for her maintenance was withdrawn when the respondent agreed to pay maintenance to the child. Four months after the said withdrawal, the applicant filed another application for her maintenance. The Magistrate's Court dismissed her application in terms of section 2(1) of the Maintenance Act on the basis that she is capable of maintaining herself. On appeal, the High Court reversed the order of the Magistrate's Court and ordered maintenance in a sum of Rs. 20,000 per month as the applicant had to pay Rs. 10,000 monthly rental for the place she was living in with the child. The respondent appealed to the Supreme Court.

Held:

1. In terms of section 11 of the Maintenance Act, the Magistrate is required to issue summons on the person against whom the application is made only in instances where the Magistrate is satisfied that the facts set out in the affidavit are sufficient. Once summons is served, the burden shifts to the person against whom the application is made to appear and show cause.

2. In terms of the proviso to section 2 of the Act, the Magistrate only needs to be satisfied that the applicant and the respondent were not living separately by mutual consent. Under the provisions of

the Act, the nature or the gravity of the disagreement for Jiving separately is immaterial, as the disqualification for maintenance has to stem only from a separation that is mutual.

3. Given the ill health of the applicant and the necessity of looking after the child, the finding of the High Court that the applicant is unable to engage in full-time employment and therefore the respondent is liable under the provisions of the Act to pay maintenance is justifiable.

4. The contention of the respondent relying on section 8 of the Act that when the initial maintenance application was withdrawn, a fresh application can only be permitted if new grounds are averred cannot be accepted. Section 8 can be invoked by a person receiving or ordered to pay a monthly allowance under the provisions of the Act and the applicant or respondent was not such a person.

5. Section 2(1) of the Act contemplates the payment of maintenance by a spouse who has sufficient means. It is sufficient if the respondent spouse has some mode of income or has funds at his disposal to pay maintenance to the applicant spouse without having to forgo the funds necessary for his expenses. Going by the evidence placed at the inquiry, the respondent can pay the sum ordered by the High Court.

Cases referred to:

1. Anna Perera v. Emaliano Nonis and Justina v. Arman 12 NLR 263
2. Ranjith v. Piyaseeli [2006] 2 Sri LR 325
3. Fonseka v. Candappa [1988] 2 Sri LR 11
4. Collettes Ltd v. Bank of Ceylon [1984] 2 Sri LR 253
5. Ruhunuge Sirisena v. Hewa Kankanamage Pushpa Rajani (SC/APPEAL/117/2010, SC Minutes of 08. 05. 2013)

APPEAL from the Judgment of the High Court.

Sajeevi Siriwardena for the Respondent-Respondent-Appellant.

Jayampathi Wickremaratne, P.C., with Pubudini Wickremaratne for the Applicant-Appellant-Respondent.

cur. adv. vult.

November 15, 2019

ALUWIHARE, J.

The instant Appeal arises from an order relating to an application for the payment of maintenance to a spouse. The Applicant-Appellant-Respondent (hereinafter sometimes also referred to as "the Applicant") made an application to the Magistrate's Court for maintenance for the child born out of her marriage to the Respondent-Respondent-Petitioner-Appellant (hereinafter sometimes also referred to as "the Respondent-Appellant") and for herself. On 28th March 2008