Thevanapillai V. Ponniah

1914 Present: Pereira J.

THEVANAPILLAI v. PONNIAH.

631-P. C. Jaffna, 12,634.

Maintenance-Tesawalamai- Grandmother or other relation taking over the child on second marriage of father-Claim for maintenance from father.

The Tesawalamai recognizes the grandmother or other relation of a child, who, in terms of paragraph 11. section 1, of the Tesawalamai, takes over the child on a second marriage of the father as a suitable guardian. She may therefore be allowed to keep the child as against the father, in case the latter happen to be a person unfit to be entrusted with the child. In that case the father would be liable to make full provision for the maintenance of the child while it remains in the custody of the grandmother or other relation.

IN this case the applicant, the grandmother of certain minor children who were in her custody, applied for their maintenance against the respondent, the father, who had married a second time. The respondent undertook to maintain them on condition they were delivered into his custody. The applicant contended that under the Tesawalamai she was entitled to the custody of the children, and she also alleged that the father ill-treated the children. The learned Police Magistrate, following the decision in Meenatchi v. Supramaniam Cheity,1 held that the grandmother could not claim the custody of the children where the father undertook to bring them up, and dismissed the application without going into the allegation of ill-treatment. In appeal this order was set aside, and the case was sent back for inquiry on the allegation of cruelty. On fresh evidence, the Police Magistrate held that the evidence of ill-treatment was not sufficient to prove that the respondent was unfit to bring up the children, and he again dismissed the application. The applicant again appealed.

J. Joseph, for appellant.-The father cannot claim the custody of the children. The parties are Jaffna Tamils, and they are bound by the Tesawalamai. Under that law on the marriage of the father a second time he must deliver the children to their grandmother, and must provide for their maintenance. Kanapathipillai v. Siva-kolunthu.2 The case of Meenatchi v. Supramaniam Chetty,1 on which the learned Police Magistrate relies, has no application here. Here we are bound by the special provisions of the Tesawalamai,

Foot notes:

1 (1898) 3 N. L. R. 181.
2 (1911) 14 N. L. R. 484.

and the Maintenance Ordinance cannot over-ride this special law. There is strong evidence of ill-treatment of the children by their father. By his behaviour he has shown himself to be unfit to bring them up.

Arulanandam, for respondent.-If the grandmother is entitled to the custody of the grandchildren, she cannot claim any separate maintenance for them from their father. What the Tesawalamai says is that the father should deliver the children to the grandmother, and should give at the same time the whole of the property brought in marriage by his deceased wife and the half of the property acquired during the first marriage. The grandmother should maintain the children out of the property so delivered to her. She cannot claim anything more for their maintenance. If she cannot maintain them out of that property, she must return them to the father. The Maintenance Ordinance applies to all classes of persons in the Island, and the Tesawalamai, which applies to one class of people only, cannot affect the operation of the Ordinance. The respondent had not a chance of disproving the allegation of ill-treatment brought against him. The Police Magistrate has not called upon him for his defence, and he must be allowed an opportunity of calling evidence in rebuttal.

Cur. adv. vult.

July 31, 1914 Pereira J.-

In this case the appellant's counsel has reverted to the old argument in the Court below that under the Tesawalamai the applicant was entitled to the custody of the children of the respondent, and that therefor

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