1961 Present : Tambiah, J.

MRS. S. V. FERNANDO, Appellant, and J. R. I. FERNANDO,
Respondent

S. C. 1031-M. C. Kandy, 9575

Maintenance Ordinance-Section 2-Application made by wife for maintenance Assessment of sum payable by husband-Means of wife should not be considered Married Women's Property 01'dinance, s. 26.

The Court should not take into account the means of the wife when fixing the quantum of maintenance payable by the husband under section 2 of the Maintenance Ordinance.

APPEAL from a judgment of the Magistrate's Court, Kandy.

D. R. P. Goonetilleke, for the Applicant-Appellant.

G. Candappa, for the Defendant-Respondent.

Cur. adv. vult.

February 28, 1961. TAMBIAH, J.

The only question that arises in this case is whether the Court should consider the wife's means in fixing the quantum of maintenance payable by the husband. The Magistrate states in his order dated, 14.10.59, as follows: "The defendant is prepared to pay without prejudice to his rights, a sum of Rs. 30 per month, as maintenance to his wife. He gets an income of about Rs. 330 per month as a stenographer in the Bank of Ceylon, Kandy. This is admitted and it is also admitted that the applicant gets an income of a similar amount as Secretary of the Girls' Farm School, Kundasale. In these circumstances the question of maintenance becomes merely a question of the enforcement of a legal right by the wife. I would fix the maintenance at Rs. 30 per month, as from today. .  . The amount is fixed at Rs. 30 after I have given consideration to the fact that she herself is earning an income".

It was contended by the Counsel for the applicant-appellant that the learned Judge has misdirected himself in taking into account the income of the wife in fixing the quantum of maintenance payable to her by the husband.

Section 2 of the Maintenance Ordinance reads as follows: "If any person having sufficient means neglects or refuses to maintain his wife, or his legitimate or illegitimate child unable to maintain itself, the Magistrate may upon the proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or

such child at such monthly rate not exceeding one hundred rupees, as the Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. Such allowance shall be payable from the date of the order".

The provisions of section 2 of the Maintenance Ordinance have been authoritatively interpreted by a Divisional Bench of the Supreme Court in Sivasamy v. Rasiah [1 (1943) 44 N. L. R. 241.]. It was held in that case that a wife who is possessed of means is entitled to claim maintenance from her husband provided he has sufficient means himself. Soertsz, S.P.J., after citing section 2 stated as follows, at p. 243 :

" These words, correctly interpreted, can only mean that while the right of children to maintenance depends on both their inability to maintain themselves and on the possession of sufficient means by the father, the right of the wife to maintenance is conditioned only on the possession of sufficient means by the husband and is not affected by the fact that she has sufficient means of her own. That conclusion emerges all the clearer when we read further down in the section the words of contrast providing for an order of maintenance for" his wife" and for " such child". The word" such" is used as an adjunct to the word " child", and not to the word" wife" in order to emphasize the fact that in the case of the child, inability to maintain itself is one of the conditions upon which the father's liability rest the words of the section are clear and they must govern the question. While the word" child", in its equivocation as to sex, makes the word" itself" the appropriate pronoun, to use that pronoun to refer to the antecedent" wife" would be to cast a thoroughly unwarranted aspersion on a perfectly