DON TILAKARATNE VS INDRA PRIYADARSHANIE MANDAWALA

DON TILAKARATNE VS
INDRA PRIYADARSHANIE MANDAWALA

SUPREME COURT
SHlRANEE TlLAKAWARDANE, J.
MARSOOF, J. AND
SRIPAVAN, J.
S.C. APPEAL NO. 74/2007
S.C. (SPECIAL) L.A. NO. 102/2007
H.C. PANADURA APP. NO. 23/05
M.C. HORANA NO. 21978
DECEMBER 18TH, 2008

Maintenance Act No. 37 of 1999 - Section 2(3)- A parent having means neglects or refuses to maintain his or her adult off spring - Section 2(5) - Where an order is made by Court for the payment of an allowance, when such  allowance be payable? - Section 4(1) - Application for maintenance - Section 22 - Classifications - Who is an adult offspring for the purpose of the Maintenance Act.

The Respondent-petitioner-petitioner filed an application for maintenance for her three children, viz, Upaka (22 years of age), Pushpika (20 years of age) and Ireshika (17 years of age). The 1st and 2nd children were classified as 'adult offspring'. After inquiry, the Magistrate made order directing the respondent-petitioner-petitioner to pay maintenance to the above-mentioned three children. He appealed against the decision of the Magistrate to the High Court. The appeal was dismissed on the basis that a proper appeal had not been filed in the High Court against the judgment of the Magistrate. The petitioner thereafter filed this appeal in the Supreme Court.

The Supreme Court granted leave to proceed on the following question of  law:

(1) Whether an application under section 4(1)(b) of the Maintenance Act No. 37 of 1999 made on behalf of an 'Adult offspring' should state the reasons as to why the said 'Adult offspring' is in capable of making such an application or should the said reasons be stated in evidence led in support of such an application and if such reasons are not given in the application or in evidence, can the court make an Order for the payment of maintenance in respect of such 'Adult Offspring'?

(2) Can the Magistrate's Court make a valid order under the Maintenance Act for the continuous payment of maintenance for a person beyond the age of 18 years, who was a 'child' at the time of making the application but who had ceased to be a 'child' at the time of making the order?

(3) Whether it is sufficient in a petition of appeal filed under section 14 of the Maintenance Act No. 37 of 1999 to comply with the requirements of section 322 (1) of the Code of Criminal Procedure Act No. 15 of 1979, namely, stating the grounds of appeal and that it be signed by the appellant or his Attorney-at-Law?

Held:

(1) In terms of section 2(3) of the Maintenance Act the Court can make an order allowing maintenance of adult-offspring.

(2) The Magistrate can make an order under the Maintenance Act for continuous payment of maintenance for a person even beyond the age of 18 years, but who was a 'child' at the time the application was submitted, as long as the evidence suggests that the child is unable to maintain him or herself.

per Sripavan, J. -

"The Courts have been in favour of interpreting the Maintenance Act in a flexible manner, so as to give effect to the intention of the legislature to provide a speedy remedy for evasions in the payment of maintenance. Thus when the Maintenance Act does not contain a provision on the procedure in the action, a practical procedure that will meet the ends of justice pertaining to the facts of the case will be followed. In this case, the just course of action is that the appellant should continue to support the child even after she turns 18, under circumstances set out in the Act."

(3) Even on restrictive interpretation of section 39 of the Judicature Act the petitioner is estopped in law from challenging the jurisdiction of the Magistrate as the petitioner has conceded the jurisdiction of the Court and his failure to object at the earliest opportunity implies a waiver of any objections to jurisdiction.

(4) In the event of any inconsistency between any two texts, the text in t

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