Jane Ranasingha Et Al., V. Pieris

Present: The Hon. Mr. J. P. Middleton, Acting Chief Justice,
and Mr. Justice Pereira.

JANE RANASINGHA et al. v. PIERIS.

D. C, Kandy, 19,627.

    Action for past maintenance by wife and child against husband and father- Not maintainable.

An action far recovering past maintenance cannot be maintained by a wife against her husband, nor by a child against its father, where they have been maintaining themselves from their own earnings or property.

THE plaintiffs, appellants (mother and child), sued the defendant, respondent (father of the child), for recovering from him the sum of Rs. 500 for past maintenance. They averred in the plaint that the defendant deserted them and refused to maintain them, and that they were obliged to maintain themselves from April, 1907, to November, 1908. Judgment was entered for the plaintiffs. The defendant appealed.

H. A. Jayewardene, for the appellant.-Plaintiffs cannot sue for arrears of maintenance. The Common Law right of action has been abolished by the Maintenance Ordinance, No. 19 of 1889 (see Menik-hamy v. Loku Appu,1 Anna Perera v. Emaliano Nonis 2). The full Court refused past maintenance to a Kandyan wife (see Yadalagoda v. Herat 3).

Bartholomeusz, for the respondents.-The Maintenance Ordinance deals with future maintenance only. The Common Law right of action for past maintenance has not therefore been taken away by the Ordinance. If Bonser C.J. held in Menikhamy v. Loku Appu that the Common Law right of action for maintenance was abolished, he has held in a later case that the civil action may still be maintained by a child to recover maintenance from the father (Subaliya v. Kanangara 4).

Jayewardene, in reply, cited 1 Nathan 110-11 and 1 Maasdorp 232.

Cur. adv. vult.

December 31, 1909. MIDDLETON A.C.J.-

This was an appeal against an order made in an action brought by a mother and minor child against the husband and father for maintenance previous to their action, holding on an issue of law

1 (1898) 1 Bal. 161.
2 (1909) 12 N. L. R. 267.
3 (1879) 2 S. C. C. 33.
4 (1899) 4 N. L. R. 121.

whether the plaintiffs can maintain the action that such an action can be maintained. It was contended for the appellant that the case was governed by the decision in Menikhamy v. Loku Appu,1 approved of by Wood Renton J. in Anna Perera v. Emaliano Nonis,2 and we were referred to 1 Nathan 110-111, founded on Voet 25, 3, 15, and 2 Maasdorp 232.

Menikhamy v. Loku Appu was an action for past and present maintenance by a deserted wife, and the Court held there that the plaintiff's rights were governed by Ordinance No. 19 of 1889, and that no civil action lay for maintenance. On the other side we were referred to 2 S. C. C. 33 and 4 N. L. R. 121 as supporting the view adopted by the learned District Judge. In 2 S. C. C. 33 a Kandyan woman was awarded future maintenance pending desertion, but not granted past maintenance, by a judgment of the Full Court. In 4 N. L. R. 121 Bonser C.J. appeared to think that the mother could, on behalf of the child, compel the performance of the duty of maintenance by a civil action, for which Ordinance No. 19 of 1889, founded on this civil liability, provided a simpler remedy. The dictum of the Chief Justice did not, I think, refer to past maintenance.

Under the English Law neither a child nor a wife has a Common Law right enforceable by legal proceedings to be maintained by father or husband (Bageley v. Fordew,3 per Cockburn C.J.). Their rights to maintenance depend on Statute Law. Under the Roman-Dutch Law a father is liable to support his children where they have not sufficient means for their own support (Nathan, vol. I., 107, founded on Voet 25, 3, 5). If the father is too poor and the mother has means, she may be called on to do so (Nathan, vol. I., 108; Voet 25, 3, 6).

There is no obligation to support if the children can maintain themselves sufficiently from what they hav

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