1934 Present: Maartensz J

SIVAPAKIAM v. SIVAPAKIAM

599-P. C. Colombo, 15,259

    Maintenance-Person having sufficient means-Meaning of expression- Maintenance Ordinance, No. 19 of 1889, s. 3.

The expression " having sufficient means " in section 3 of the Maintenance Ordinance denotes a person who has a source of income or who has wilfully abstained from earning an income.

APPEAL from an order of the Police Magistrate of Colombo.

H. V. Perera (with him Nadesan), for appellant.

L. A. Rajapakse (with him A. Wijeyeratne), for applicant, respondent.

Cur. adv. vult.

October 18, 1934. MAARTENSZ J.-

This is an appeal from an order made under section 3 of the Maintenance Ordinance, 1889, by which the appellant was ordered to make the respondent, his wife, a monthly allowance of Rs. 30 for her maintenance.

There is no evidence of the ages of the parties, but they are described as a young couple by the Magistrate in his judgment. There is some confusion in the evidence regarding the date of the marriage. According to the respondent she was married in October, 1932, and the Magistrate has adopted that date as the date of the marriage. According to her brother-in-law and the appellant the marriage took place in May, 1933.

The appellant at the time of the marriage was a student at the Ayurvedic College and had no means of his own, and the appellant and respondent after their marriage lived with his mother in Deans road. After some time they left the house in Deans road and lived in various

houses in various parts of Colombo till October, 1933, when the respondent left the appellant and went back to her mother. She alleged that her husband treated her cruelly and refused to accept his offer to maintain her on condition of her living with him. The learned Magistrate was of opinion that the offer was not a genuine one and that the respondent was entitled to refuse to live with the appellant as he had habitually treated her with cruelty. One of the grounds of appeal was that this finding was not justified by the evidence. I am unable to sustain this ground of appeal. There is evidence that the respondent was assaulted by the appellant and I see no reason to disagree with the view taken by the Magistrate of that evidence.

The other ground of appeal was that the appellant has no means and was therefore not a person against whom an order under section 3 of the Maintenance Ordinance, 1889, could be made.

It appears from the evidence of the applicant herself that the appellant has no means of his own and that his mother made them an allowance of Rs. 100 a month while they lived apart from her. This allowance was according to the evidence of the mother stopped when the appellant returned to her home after the respondent left him.

It is clear from the evidence that the appellant has no source of income from property or employment or otherwise. Nor is there evidence that he could earn and has wilfully abstained from doing so.

The appellant's contention was that he was not a person who " having sufficient means " neglects or refuses to maintain his wife.
The expression "having sufficient means" meant, it was urged, having a source of income; for the respondent it was contended that it meant not only a source of income, but also capacity to earn and that if a husband was capable of earning he was a person to whom section 3 of the Maintenance Ordinance applied. The expression has not been the subject of any local decision.

The law with regard to the maintenance of wives in India is contained in Chapter XXXVI. of the Indian Criminal Procedure Code. Section 488 in that Chapter is very similar in terms to section 3 of the Maintenance Ordinance. The expression "having sufficient means" has been considered in cases in India, but the reports in which the decisions have been reported are not available and the extracts cited in the Commentaries on the Indian Criminal Pr