LAW 203 - Family Law 1

S. Harsha Widanapathirana
Attorney-at-Law
LL.B(Hons) University of Peradeniya,
Adv.Dip.Mgt(cima),
Diploma in English(ICBT), CPIT(SLIIT)
 Consequences Of Marriage
• “Refers to personal consequences to marriage.
• Status of spouses change – neither spouse may marry
anyone else whilst marriage subsists, spouses are
guardians of children born of marriage, relationship by
affinity (“A close agreement. A natural attraction, liking, or
feeling of kinship. Relationship by marriage. It can be
relation that one spouse has to the blood relatives of the
other spouse.”) is created etc.”
 Support Obligations Under the Law of Sri Lanka

• When parties enter into a marriage it gives rise to various rights and
responsibilities with legal effect as well.
• Support obligations and legal consequences of marriage remains an
important principle within the sphere of Family Law as it clearly emphasizes
the reciprocal nature of marital affairs.
• Support is not a concept that is confined to mere monetary contribution
under Family Law, as it includes support by way of providing adequate food
and clothing for instance, and it can be extended from nuclear family to the
extended family.
• The lesson will focus on various support obligations imposed through English
Law, Roman Dutch Law as well as Statutory Law.
 Roman Dutch Law

• Under Roman Dutch Law, following principles should be noted with reference to
support obligations.
• Family support under Roman Dutch Law was identified as a reciprocal
(“a reciprocal obligation, also known as a reciprocal agreement is a duty owed by
one individual to another and vice versa. It is a type of agreement that bears upon
or binds two parties in an equal manner.”) Duty.
• Husband was regarded as the head of the family/household (shows the patriarchal
nature) with the primary responsibility to maintain the family and the wife had to
give effect to such obligation only where the husband was facing incapability/s,
indigence (a state of extreme poverty; destitution.) for instance, in doing so.
 Standards Of Maintenance And Liability To Support

Maintenance under Standards of Based on standard Necessary to

Roman Dutch Law support of life
ask for
maintenance
Matrimonial only when there
Misconduct
is a breach in
The spouse who is guilty Who has the liability the marriage
for contributing the
termination of the to support in case of institution.
Any other contribution to common household. a breach?
the breakup of the common
household
 Court Interpretations On The Liability To Support Under Different
Circumstances.
• The husband’s duty to provide with necessaries (“A husband owed the same support to the
couple's children. He had the legal obligation to provide "necessaries" for his wife and
children, which encompass food, clothing, lodging, health care, education, and comfort. ... The
law has recognized the wife's traditional authority to purchase necessaries.”) to his wife will
not apply in a situation where the they are separated from the common household due to the
bad character of the wife. (Sivapakiam v. Nawamani Ammal 37 N.L.R. 386)
• When the wife is deserted, and when the common household (those who dwell under the
same roof and compose a family also : a social unit composed of those living together in the
same dwelling) is still in existence, Wife has the ability to exercise the right of support through
pledging her husband’s credit with regard to household necessaries. (incidence/occurance of a
marriage)
• However, when the common household is not in existence, the wife has the ability to pledge
her husband’s credit for personal necessaries. (Husband’s duty to support)
• Aforementioned perspectives were accepted in Sri Lanka by Sivapakiam v. Navamani Ummal.
 Reloomel V. Ramsey (1920) J.P.D. 371
“Liability for household necessaries Dr Ramsay and his wife were married out of cop. Dr Ramsay went to England
and left his wife and children behind in Potchefstroom.
There was no disagreement between the spouses and they were therefore not separated in the legal sense.
Dr Ramsay gave his wife a very meager (lacking in quantity or quality.) allowance of 15 pounds per month while
he was away. During his absence his wife exceeded her allowance. On Dr Ramsay’s return, the plaintiff
demanded payment for the debts Mrs Ramsay had incurred.
Dr Ramsay refused to pay. He averred that the goods that the plaintiff had supplied to his wife were not
household necessaries that his wife had had no right to pledge his credit, and that as their marriage was out of
cop he was not liable for debts she incurred.
The court a quo allowed the plaintiffs claim in respect of several items but refused to allow his claim for
payment for silk and other fabric, as it did not consider them to be household necessaries. The plaintiff
appealed against this decision. The appeal was upheld and Dr Ramsay was ordered to pay for the dress fabric as
well. In this case the court inter alia set out how one should determine whether a particular item is a
household necessary. The court emphasized that factors such as the spouses standard of living ,their means, the
customs of the people in their area and so forth must be considered.”
What Sort Of Things Are Regarded As Household Necessaries?

• Gunaris Hamy V. Nonababa (1921) 23 N.L.R. 253

Money borrowed for the purpose of conducting a
devil dance in respect of a decease does not fall
within the meaning of household necessaries.
“Expression "business connected with the
household" evidently refers to the ordinary
management of a household by the mistress of the
house. But I cannot regard a devil dance as such
business.” De Sampayo J.
See - in Marie Kangany v. Karuppasamy Kangany
 Lalchand V. Sarawanamuttu (1934) 36 N.L.R. 273
Head note –
“Husband and wife—capacity of wife to bind husband by contract—matters connected
with household management—right incident to marriage status—Roman-Dutch Law. In
the Roman-Dutch Law a wife may enter into a contract binding upon herself and her
husband in respect of matters connected with the management of the household, such
as the purchase of food and clothing. It is a right to contract which is an incident of the
status of marriage and which does not depend on a question of agency as under the
English ”
In this case it was stated by the courts that in terms of Roman Dutch Law a wife has the
ability to get into contracts binding upon herself as well as her husband with regard to
management of the household including aspects such as clothing and food.
Such right was regarded as an incidence (happening as a result of (an activity).) of the
status of marriage.
 Important Quotations From Lalchand V. Sarawanamuttu –
Determining The Validity Of The Contract

“Much must be left to the discretion of the judge in

deciding whether and how far the contract of a wife for
household stuff, such as food and clothing, ought to be
upheld, or whether she has exceeded what was right. He
must take into consideration not only the usage of the
locality, but also the position of the husband, his wealth, his
habits, and the frequent acknowledgment in the past of
similar liability “ Voet cited by Garvin S.P.J
 Quotation Used From Lord Blackburn

" I think that if the husband and wife are living

together, that is a presumption of fact from which the
jury may infer that the husband really did give his wife
such authority. But even then, I do not think the
authority would arise, so long as he supplied her with
the means of procuring the articles otherwise ".
 Concept Of Judicial Interdict

" The contracts of the wife in the household management

bind herself and her husband, as though established by
the consent of the husband, who tacitly relinquishes the Not necessary,
household affairs and entrusts them to his wife; since the public notice
husband is for the most part occupied with other things,
would be
and it would be neither honourable nor convenient to
saddle him with those little daily duties. Unless at the sufficient
husband's request, the care of the household affairs and (page 276)
the liberty of managing them have been publicly denied
the wife, for good reasons by the authority of a
magistrate ".
 Support Of The Court

A wife, therefore, and especially a wife who is living with her

husband, would appear to be entitled under the law to make
contracts in connection with the household, and may to that extent
bind herself and her husband. The procedure of obtaining an
interdict from a magistrate with a view to determining the right of a
wife may be taken to be obsolete, and presumably in these days
adequate public notice will be held to be sufficient.
 Various Other Principles Within Roman Dutch Law

• If parties are living separately (Separated mensa et thoro – “relating to a

separation in which the parties remain husband and wife but without
cohabitation”) by mutual choice, an agreement made between them
regarding the payment of a certain sum of money as maintenance, is it
enforceable? Yes it is. (Silva v. Silva (1914) 18 N.L.R. 36)
• Does the wife has a duty to contribute to the common house hold? The
Roman Dutch Law on this matter is not quite specific.
• Does the Roman Dutch Law recognize the right of a deserted wife to remain
in the matrimonial home? Yes it does. Canakaratne v. Canakaratne. (1968)
71 N.L.R. 522
 Mrs. A. E. ALWIS, Petitioner, And D. S. KULATUNGE And
Another, Respondents
S. C. 612169—c. R. Colombo, 97922

“Rent-controlled premises— deserted wife of tenant— Her right to

continue in occupation after desertion— Doctrine of protection for the
deserted wife— right of the wife to tender the monthly rental to the
landlord—debt— Right of a third party to pay it— consent decree
entered without jurisdiction— its liability to be set aside on the ground
of nullity.”
In this case, the landlord was liable to accept the rent payments made
by the wife on behalf of her husband.
 Cases Cited
• National And Provincial Bank Ltd. V. Ainsworth
“ To a woman, whose husband has left her, especially if she has
children it is of little use to receive periodical payments for her
maintenance if she is left without a home. Once possession of a
house has been lost, the process of acquiring another place to live in
may be painful and prolonged. So, even though, as is normally the
case, the- home is in law the property of the husband, the courts
have intervened to prevent him from using his right of property to
remove his deserted wife from it and they have correspondingly
recognised that she has a right, or ‘ equity’.”
 Parents And Children In Roman Dutch Law
Oosthuizen v Stanley 1938 AD 322 at 327-328
“The liability of children to support their parents, if these are indigent , is
beyond question; see Voet 25.3.8; van Leeuwen Cens.For.1.10.4. The fact that
a child is a minor does not absolve him from his duty, if he is able to provide or
contribute to the required support; see In re Knoop (10 S.C. 198). Support
(alimenta) includes not only food and clothing in accordance with the quality
and condition of the persons to be supported, but also lodging and care in
sickness; see Voet 25.3.4, van Leeuwen, Cens.For.1.10.5; Brunneman, in
Codicem 5.25. Whether a parent is in such a state of comparative indigency or
destitution that a court of law can compel a child to supplement the parent’s
income is a question of fact depending on the circumstances of each case.
 Is Liability Of Children To Support Their Parents Recognized In
Sri Lanka?
Ambalavanar V. Navaratnam (1955) 56 N.L.R. 422
The two plaintiffs were the parents of the defendant, who is their
eldest son. Admittedly the defendant has not been maintaining the
plaintiffs, and in this action they plead that they are in indigent
circumstances and ask that the defendant be ordered to pay them a
monthly sum for their maintenance.
Under such circumstances, the court recognized the liability of the
children to maintain their children under indigent circumstances as
enshrined in Roman Dutch Law.
Gaffoor v. Wilson (1990) 1 S.L.R.142
The plaintiff's son Ziard (eldest of seven children )died as
a result of the negligent driving of a motor vehicle by the
defendant's servant on May 27, 1968. Ziard was 24 years
old and unmarried at the time of his death. He used to
give Rs. 250 a month to his mother the plaintiff towards
household expenses. Ziard's father received a salary' of
Rs. 1,000 for two years after Ziard's death before he
retired at the age of 62 years.
 Held
(1) ziard's contribution to his mother was not as a result of mere filial affection but out of a
sense of duty.
(2) prospective support is included in patrimonial loss and if not too conjectural will found an
action provided such support would be rendered in consequence of a duty and not from filial
affection.
(3) if the plaintiff alleges and proves—
(А) the existence of a relationship from which a duty of support arises. The relationship
of parent and child is such a relationship being a Muslim the deceased could be expected to
have observed the duty imposed by his faith.
(Б) a strong possibility of his having become dependent on such support in the near
future, and
(C) a strong probability that the child would have been able to afford such support, he
will be entitled to damages.
4) the plaintiff must satisfy the court that she was in such a state of indigence as to really need
financial support of the child. It is not necessary that the plaintiff should prove that she could
not otherwise support herself at all and that she was entirely dependent on the child's
assistance. Despite her husband's comfortable salary, because of her large family she was in
need of support for the purchase of necessaries and ziard's contribution was for household
expenses.
(5) although primarily the duty of support falls on the husband, if he is unable to work and is
indigent he may himself claim support from a child. Here the deceased was contributing
towards household expenses even at the time when his father was in employment and there
was a strong probability of the mother becoming even more indigent when her husband
retired.
(6) despite the lack of actuarial assistance in the assessment of damages, the court is not
absolved from the duty of assessing damages. The fact that the deceased had good prospects
of attaining a better income will affect the multiplier in the calculation of damages.
Maintenance Through Statutes
Statutory Law On Maintenance An Analysis On Its History And Current Status
• The first statutory instrument which contained provisions regarding support obligations
was the Vagrants Ordinance No. 1 of 1841.
“3. Persons who are deemed idle and disorderly persons.
(1) —(a) every person being able to maintain himself by work or other means, but who shall
wilfully refuse or neglect so to do, and shall wander abroad or place himself in any public
place, street, highway, court, or passage to beg or gather alms, or cause, or procure, or
encourage any of his family so to do, excepting priests and pilgrims in performance of their
religious vows, not being mendicants of the description mentioned in the paragraph (d) of
the next succeeding section;
Shall be deemed an idle and disorderly person within the true intent and meaning of this
ordinance, and shall be liable upon the first conviction to be imprisoned, with or without
hard labour, for any term not exceeding fourteen days, or to a fine not exceeding ten
rupees.”
 Continued
• The Vagrants Ordinance did not include any mechanism to enforce aspects regarding
maintenance. (Only punitive in nature)
• However, the first legal instrument that addressed the area of maintenance was the
Maintenance Ordinance No. 19 of 1889.
• For instance, the following Section (Section 2) can be cited.
“2. 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 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.” (Amended in 1972)
What are the implications of this Sections?
 Continued
• The Maintenance Ordinance of 1889 introduced a summary procedure with
regard to enforcing rights relating to maintenance. Summary offences are
recognized as “offences triable by a Magistrate’s Court” according to the
interpretation section of the Code of Criminal Procedure.
• The Maintenance Ordinance is inspired by the English Law. The issue that
comes up with such fact is whether the Roman Dutch Law is yet in force after
the passing of the Maintenance Ordinance. Anyhow the Maintenance
Ordinance did not specify such fact so it was left with the judiciary to decide
the validity of Roman Dutch Law principles on Maintenance.
• Few case Laws on the matter will be discussed hereinafter to determine the
stance of the judiciary in regard to the Roman Dutch Law principles on
maintenance.
 Lamahamy V. Karunaratne (1921) 22 N.L.R. 289

• Head note - Action for maintenance of illegitimate child against

administratrix of 'father's estates - was Roman-Dutch Law on the
point introduced into Ceylon—
• Are all claims for maintenance confined to the Maintenance
Ordinance - per Ennis A.C.J. And Shaw J. (Schneider A.J.
Dissentiente).— Since the enactment of the Maintenance Ordinance
all applications against a husband or father for maintenance of his
wife or children, legitimate or illegitimate, must be made under the
provisions of that Ordinance.
 Jane Ranasinghe V. Pieris (1909) 13 N.L.R. 21
• “The plaintiff.', 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 Menikhamy
v. Loku Appu,). The full court refused past maintenance to a Kandyan wife (see Yadalagoda v. Herath).
• 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 Menikliamy 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 *).(CA Recognized)”
 Continued - Roman Dutch Principle In Maintaining A Civil
Action For Maintenance Was Discussed, Not Rejected.

“In the present case we have a wife and child, apparently low country Sinhalese,
suing for past maintenance, and therefore subject to Roman-Dutch law. Their
plaint does not disclose that they have been compelled to borrow money to
maintain themselves, and the presumption is that either the mother herself, or
she through her child, have had the means to do it. Under these circumstances, I
feel constrained to hold, though with some hesitation, that a mother and child
cannot maintain a civil action against their husband and father for past
maintenance, and I would, set aside the judgment of the district judge and
dismiss the action in the district court. I think each side should pay its own costs
in both courts under the circumstances of the claim.”
 In Brief – Is Roman Dutch Law Completely Ruled Out in
regard to Maintenance?
Before Maintenance Act
Supportive
No. 1 of 1889
Did it Abolish Roman Lamahamy v.
Dutch Law? Karaunaratne
Maintenance Law

Maintenance Act No. 1

of 1889
Roman Dutch Law and
Supportive
Vagrants Ordinance Is Roman Dutch Law still
Canagaratne v.
in force Canagaratne
Extra Implication – Maintenance Act (1999)
17. Nothing in this Act shall be construed as depriving a Gaffoor v. Wilson
person including a child, adult offspring, disabled offspring Jane Ranasinghe v. Pieris
spouse or parent of the right, if any to maintain a civil
action for maintenance. Subaliya v. Kannangara
In Depth Analysis On Maintenance Statutes
 Maintenance Ordinance No. 1 Of 1889
Section “2. 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 proof of such neglect or
refusal, order such person to make a
Amended
monthly allowance for the maintenance
in 1972
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 Primary duty with regard to maintenance was
date of the order.” imposed on the husband even though wife’s income
was considered in deciding the quantum.
 Legal Meaning Of Wife Under The Act

Wife = Lawful Wife

Subramanium v. Pakiyaletchamy (1952) 55 N.L.R. 87 – Before receiving an
absolute order signifying the dissolution of the first/existing marriage, a
woman entered into a second marriage. The woman was held not to be
entitled to receive maintenance from her second husband as she did not have
the capacity to marry for the second time while the previous marriage was not
properly dissolved. Therefore, she was not regarded as a lawful wife.
Soosaipillai v. Parapathipillai (1985) 2 S.L.R. – A wife under a customary
marriage is regarded as a lawful wife for the purposes of the Maintenance Act
as well.
 What Is Meant By Sufficient Means?
• Cases indicate that sufficient means include = Actual income +
Income that can be earned by various possible avenues (being
unemployed will not eb an excuse for the husband not to pay
maintenance)
• The term ‘Sufficient Means’ therefore, has been interpreted quite
widely.
Sivapakiam v. Sivapakiam (1934) 36 N.L.R. 295 – “The expression
"having sufficient means" in section 3 of the maintenance
ordinance denotes a person who has a source of income or who
has willfully abstained from earning an income.”
Rasahamy v. Subramanium (1948) 50 N.L.R. 84 – in this case, the
term ‘sufficient means’ was interpreted as the capacity to earn
money. (Willful unemployment is not a getaway)
 Instances Where A Wife In Not Entitled To
Receive Maintenance

Section 3. If such person offers to maintain his wife on

condition of her living with him, magistrate may consider
any grounds of refusal stated by her, and may make an order
under section 2, notwithstanding such offer, if the
magistrate is satisfied that such person is living in adultery,
or that he has habitually treated his wife with cruelty.
 Some Cases On Section 3 Of The Maintenance Act 1889

• Balasinham v. Kalaivani (1986) 2 S.L.R. 378 – An order to pay maintenance

can be cancelled in an instance where the wife is living in adultery at the time
of filing for a maintenance order. A single act of adultery done before the
application is not sufficient to cancel the order.
• Wijesundara v. Wijekoon (1990) 2 S.L.R. 1 (CA)– A contradictory against the
case of Balasinham v. Kalaivani view was expressed.
• Shanmugam v. Annamuttu (1964) 69 N.L.R. 63 – Even the woman commits
adultery, but if she has custody over children she is entitled to receive the
allowance for the children to her hands.
 Some Sections That Are Of Utmost Importance
• Section 6 - period within which application for maintenance of illegitimate
child should be made. Evidence of mother to be corroborated. (Within 12
months of the birth)
• Section 8 - enforcement of orders of maintenance.
• Section 8b - Payment of maintenance through post office, bank or divisional
assistant government agent.
• Section 10 - application for cancellation of order or alteration in amount of
allowance.
When you are analyzing a question which requires you to explain the
importance of introducing the maintenance ordinance, make sure you know
sections as indicated within the slide.
 Maintenance Act, No. 37 Of 1999 - Interpretation
• 22. In this act, unless the context otherwise requires–
• “Adopted” when used in relation to a child or offspring means a child or offspring adopted under the provisions of the
adoption of children ordinance or the kandyan law declaration and amendment ordinance ;
• “adult offspring” means any marital or non-marital or adopted offspring, who is eighteen years of age or is over
eighteen years of age and under twenty-five years of age ;
• “child” means any marital or non-marital or adopted offspring, who has not reached eighteen years of age ;
• “disabled offspring” means any marital or non-marital or adopted offspring of whatever age, who is or becomes
physically or mentally disabled so as to render such offspring incapable of earning a livelihood or of adequately
supporting himself or herself ;
• “marital” when used in relation to a child or offspring means a child or offspring born to parents who are not married ;
• “non-marital” when used in relation to a child or offspring means a child or offspring born to parents who are not
married ;
• “ parent” includes an adoptive parent ;
• “salary” includes all allowances and wages.
 MAINTENANCE ACT, No. 37 Of 1999
2. Order for maintenance of a spouse or child or adult offspring or disabled offspring.
(1) where any person having sufficient means, neglects or unreasonably refuses to
maintain such person's spouse who is unable to maintain himself or herself, the
magistrate may, upon an application being made for maintenance, and upon proof of
such neglect or unreasonable refusal order such person to make a monthly allowance
for the maintenance of such spouse at such monthly rate as the magistrate thinks fit
having regard to the income of such person and the means and circumstances of such
spouse:
Provided however, that no such order shall be made if the applicant spouse is living in
adultery or both the spouses are living separately by, mutual consent.
(2) where a parent having sufficient means neglects or refuses to
maintain his or her child who is unable to maintain himself or herself, the
magistrate may upon an application being made for maintenance and
upon proof of such neglect or refusal, order such parent to make a
monthly allowance for the maintenance of such child at such monthly
rate as the magistrate thinks fit, having regard to the income of the
parents and the means and circumstances of the child:
Provided however, that no such order shall be made in the case of a non-
marital child unless parentage is established by cogent evidence to the
satisfaction of the magistrate.
• (3) where a parent having sufficient means neglects or refuses to maintain
his or her adult offspring who is unable to maintain himself or herself, the
magistrate may upon an application being made for maintenance and upon
proof of such neglect or refusal, order such parent to make a monthly
allowance for the maintenance of such adult offspring at such monthly rate
as the magistrate thinks fit, having regard to the income of the parents and
the means and circumstances of the adult offspring:
• Provided however, that no such order shall be made in the case of an non-
marital adult offspring unless parentage is established by cogent evidence to
the satisfaction of the magistrate.
(4) where a parent having sufficient means neglects or refuses to maintain
his or her disabled offspring who is unable to maintain himself or herself, the
magistrate may upon an application being made for maintenance and upon
proof of such neglect or refusal, order such parent to make a monthly
allowance for the maintenance of such disabled offspring at such monthly
rate as the magistrate thinks fit, having regard to the income of the parents
and the means and circumstances of the disabled offspring:
Provided however, that no such order shall be made in the case of a disabled
non-marital offspring unless parentage is established by cogent evidence to
the satisfaction of the magistrate,
(5) where an order is made by a magistrate for the payment of an
allowance pursuant to an application made under subsection (1) or (2) or
(3) or (4), such allowance shall be payable from the date on which the
application for maintenance was made to such court, unless the
magistrate, for good reasons to be recorded, orders payment from any
other date.
(6) where an application is made for the maintenance of a child, adult
offspring or disabled offspring, as the case may be, under subsection (2),
(3) or (4), as the case may be the court may, either on the application of
the parties or of its own motion, add the other parent as a party to such
application and make such order as is appropriate against one or both such
parents.
 Period Of Validity Of Order

3. No order for an allowance for the maintenance of any child, adult

offspring or disabled offspring made under this act shall, except for
the purpose of recovering money previously due under such order, be
of any force or validity after the person in respect of whom the order
is made ceases to be a child, adult offspring or disabled offspring, as
the case may be, within the meaning of this Act.
 Application For Maintenance.
4. Application for maintenance.
(1) an application for maintenance may be made —
(A) where such application is for the maintenance of a child or disabled offspring, by such child or
disabled offspring or by any person who has custody of such child or disabled offspring;
(B) where such application is for the maintenance of an adult offspring, by such adult offspring or
where such adult offspring is incapable of making such application, by any person on his or her behalf;
and
(C) where such application is for the maintenance of a spouse, by such spouse or where such spouse is
incapable of making such application, by any person on his or her behalf.
(2) an application for maintenance may be made to the magistrates court within whose jurisdiction the
applicant or the person in respect of whom the application is made or the person, against whom such
application is made, resides.
 Attachment Of Salary Of Respondent
6. (1) if on the application of a person entitled to receive any payment under an order
of maintenance, it appears to the magistrate that the respondent has defaulted in the
payment of maintenance due for a period exceeding two months, the magistrate may,
after inquiry, by an order,(hereinafter referred to as an “attachment of salary order”)
require the person to whom the order is directed, being a person appearing to the
magistrate to be the respondent’s employer, to deduct, for such period as may be
specified in the order, such amount from the respondent’s salary as may be specified
in the order and forthwith to remit that amount to the applicant In the manner
directed by court.
conditions apply, read the rest of the section including appeal procedures for
knowledge.
 Application For Cancellation Of Order Or Alteration In
Amount Of Allowance.

8. On the application of any person receiving or ordered to pay a monthly

allowance under the provisions of this act and on proof of a change in the
circumstances of any person for whose benefit or against whom an order for
maintenance has been made under this act, the magistrate may either cancel
such order or make such alteration in the allowance ordered as he deems fit :
Provided that such cancellation or alteration shall take effect from the date on
which the application for cancellation or alteration was made to such court,
unless the magistrate for good reasons to be recorded, orders otherwise.
 Ability To Use Remedies

17. Nothing in this act shall be construed as depriving a

person including a child, adult offspring, disabled offspring
spouse or parent of the right, if any to maintain a civil action
for maintenance.
 Maintenance According To Personal Laws
Law Section to Consider

Kandyan Law Section 11 Kandyan Law Declaration

And Amendment Ordinance 39 of 1938,
25 of 1944.

Muslim Law Section 47 (1) (b) Muslim Marriage and Divorce Act
Section 47 (1) (c) Muslim Marriage and Divorce Act
Burhan v. Ismail (1979) 2 S.L.R. 218
Pallitamby v. Savariathumma (1959) 73 N.L.R. 572
Shahabdeen v. Beebi (1955) 4 MMDR 97
Tesawalamai Law Section 13 of the Jaffna Matrimonial Rights and Inheritance Ordinance
No. 1 of 1911
 Thank You
• Lessons To Come;
• Property Related Rights Of Spouses
• Grounds For Divorce Under Different Laws
• International Principles On Family And Family Law
Legal Coverage On Property
Rights Of Spouses
 Position Of Roman Dutch Law
• It should be noted that the concept of community of property in Roman Dutch Law
was applicable to Sri Lanka as a result of it being a part of Roman Dutch Law.
• Simply put, “Being married in community of property basically means that all the
assets and debts from before the marriage are shared in a joint estate between both
spouses. Any assets, debts and liabilities acquired by either spouse after their
marriage will then also added to this joint estate.”
• The concept further provides rights over property to a spouse who has not
contributed to accumulate assets during the marriage.
• Do you think this has improved the position of women within the marriage institution
in terms of property? No, the reason is, marital power was concentrated on the
husband. (E.G.- Wife’s inability to alienate property without the consent of the
husband.)
 Application Of The Concept Of Community Of Property
Today
Matrimonial Rights And Inheritance Ordinance 1876
Section 7
There shall be no community of goods between husband and wife,
married after the proclamation of this ordinance, as a consequence of
marriage, either in respect of movable or immovable property.
However; section 11 (when husband’s consent may be dispensed
with.) required consent of the husband at an instance where the wife
needs to alienate property.
 Section 8 - Immovable Property Of The Wife.

The proclamation of this ordinance, may be entitled at the time of her marriage, or
may become entitled during her marriage, shall, subject and without prejudice to the
trusts of any will or settlement affecting the same, belong to the woman for her
separate estate, and shall not be liable for the debts or engagements of her husband,
unless incurred for or in respect of the cultivation, upkeep, repairs, management, or
improvement of such property, or for or in regard to any charges, rates, or taxes
imposed by law in respect thereof, and her receipts alone or the receipts of her duly
authorized agent shall be a good discharge for the rents, issues, and profits arising from
or in respect of such property. Such woman shall, subject and without prejudice to any
such trusts as aforesaid, have as full power of disposing of and dealing with such
property, by any lawful act inter vivos (between living people.) with the written consent
of her husband, but not otherwise, or by last will without such consent, as if she were
unmarried.
 Section 17 -
All Other Movable Property Of The Wife To Vest In The
Husband.

All movable property to which any woman, married after the

proclamation of this ordinance, shall be entitled at the time of her
marriage or may become entitled during her marriage, shall,
subject and without prejudice to any settlement affecting the
same, and except so far as is by this ordinance otherwise provided,
vest absolutely in her husband.
 Extra Insights - Section 18 Wife With Separate
Property Liable For The Maintenance Of Her Children.

• A married woman having separate property adequate for the purpose

shall be subject to all such liability for the maintenance of her children as
a widow is now by law subject to for the maintenance of her children :
• Provided that nothing in this ordinance shall relieve her husband from any
liability at present imposed upon him by law to maintain her children.
Married Woman’s Property Ordinance No. 18 Of 1923;
How It Changes The Right Of Wives To Alienate
Property Without The Consent Of The Husbands
 Extra Knowledge – Feme Sole

“Feme sole, in Anglo-American common law, a woman in the unmarried state

or in the legally established equivalent of that state. The concept derived from
feudal Norman custom and was prevalent through periods when marriage
abridged women’s rights. Feme sole (Norman French meaning “single
woman”) referred to a woman who had never been married or who was
divorced or widowed or to a woman whose legal subordination to her husband
had been invalidated by a trust, a prenuptial agreement, or a judicial decision.
In some instances by custom a woman could execute contracts independent of
her husband as a feme sole trader, but generally legal action was required to
establish a married woman’s legal separateness from her husband. ”
 More
Emphasis On
Property
Related Rights
Of A Married
Woman
 Dowry
• Not an important part in Roman Dutch Law
Case laws and some principles on the use of dowry in Sri Lanka in light of property
rights of spouses.
• Karunanayake V. Karunanayake (1937) 39 N.L.R. 275
At the point of dissolution of marriage, a wife is unable to recover movable property
which were given to her husband by her parents as it is considered as an absolute
property of the husband.
• Somawathie v. Simon perera (1984) 1 S.L.R. 78
The court was of the view that under Roman Dutch Law a wife has the right to sue
for the restitution of dowry property after a divorce but it will be not allowed in an
instance where the wife has committed matrimonial misconduct.
 Samarasinghe V. Samarasinghe(1989)2 S.L.R. 180
• Divorce - forfeiture of benefits - who can claim it
and when - civil procedure code, s.615(1)
• The words "upon pronouncing a decree of
divorce or separation" in the new section 615(1)
of the civil procedure code imply that issues
relating to forfeiture of benefits by the guilty
spouse could be raised in an action for divorce or
separation.
• As forfeiture (the loss or giving up of something
as a penalty for wrongdoing.) Of benefits can be
ordered only against a guilty spouse on proof of
matrimonial fault in this particular case as the
defendant wife had not counterclaimed for a
divorce or separation, it is not open to her to
raise such issues.
Separate Property of Spouses will not be affected by this
precedent or legal principles.
 New Words You Might Have Been Exposed To

• “Hypothecation - hypothecation occurs when an asset is pledged (a thing that is

given as security for the fulfilment of a contract or the payment of a debt and is liable
to forfeiture in the event of failure.) as collateral to secure a loan, without giving up
title, possession or ownership rights, such as income generated by the asset.
However, the lender can seize the asset if the terms of the agreement are not met.
• Surety bond - a surety bond is defined as a contract among at least three parties: the
obligee: the party who is the recipient of an obligation. The principal: the primary
party who will perform the contractual obligation. The surety: who assures the
obligee that the principal can perform the task.
• Annuity - a fixed sum of money paid to someone each year, typically for the rest of
their life.”
 Support Obligations In Light Of Personal Laws
• Kandyan Law
Kandyan law is influenced by more liberal views with regard to marriage
related rights and liabilities, on women, as Kandyan law does not expressly
recognize husband’s marital power.
Bandaranayake v. Bandaranayake (1922)24 N.L.R. 245
“Where a Kandyan Sinhalese woman marries a low-country Sinhalese, her
matrimonial rights are governed by the Kandyan law and not by ordinance no.
15 of 1876. A Kandyan Sinhalese is not a person of a different race or
nationality from a low-country Sinhalese. ”
• Even in a mixed marriage, the woman is entitled to be governed by
her own law. Children will be governed by the legal system that
governs their father.
• As you are already aware, Kandyan marriages can be divided mainly
into two categories, diga and binna.
• The husband’s position in a binna marriage is much inferior to that of
a diga marriage.
• In Kandyan law, there are certain types of property that should be
considered including acquired property and paraveni property/
ancestral property, where rights relating to such property types will
differ depending on the circumstances (including type of marriage).
• Mampitiya v. Wegodapola (1922) 24 N.L.R. 129
The court in this case held that even though the daughter has entered into a
diga marriage, since she has not left the ancestral home she also develops
inheritance rights over the paraveni property. The case of Seneviratne V.
Halangama was also supportive to the said precedent.
However, the legal position over property rights of a diga married daughter has
later changed through the conclusion of the Kandyan Law Ordinance.
• Not being able to develop inheritance rights subsequently to a diga marriage
was not strictly enforced by the courts at certain instances whereas in certain
cases the court accepted the said view strictly. Following cases can be
regarded as examples for such footing.
• Rana v. Kiribindu (1978) 78 N.L.R. 73
The question that arose in this case was whether the plaintiff who was a person
subject to the Kandyan law was entitled to succeed to the inheritance of her
father inasmuch as she had married in “ diga there was a finding of fact that the
plaintiff although married in “ diga ” did not shift her residence from the “
mulgedera”. The defendant was the elder brother of the plaintiff and the
plaintiff’s position was that though she was married in “ diga ” she had remained
in the “ mulgedera ” to look after three minor children of the defendant whose
wife had died shortly before the plaintiff’s marriage. The plaintiff’s husband also
died before her father. The provisions of Kandyan law declaration, and
amendment ordinance (cap. 59) were applicable. Here, the possibility of
acquiring rights over parveni property was expressed.
• Jayasingha v. Kiribindu (1997) 2 S.L.R. 1
“Remaining in or returning to the mulgedera does not
necessarily result in a retention or re-acquisition of rights.
If a diga married woman is remarried in binna or re-
admitted into her father’s family by a binna settlement
clearly showing that a binna connection was intended, she
regains the rights of a binna married daughter to inherit
her intestate father’s properties.”
 Your Task

Considering A daughter married through a binna

marriage, what do you think about her rights relating
to the dowry property?
• Tesawalamai Law
When it comes to property related rights of spouses, Jaffna Matrimonial Rights
And Inheritance Ordinance is of utmost importance specifically with regard to
persons whose matrimonial rights are governed by Tesawalamai law.
Types of Property as Per Tesawalamai Code;
• Chidenam – Known as the Dowry property which is considered as a Wife’s
separate property.
• Mudusam – Regarded as the inherited property of the man in a marriage
which is considered as the man’s separate property.
• Thedia thettam – Regarded as joint property of the spouses that are acquired
during the marriage.
A Brief Reference to Matrimonial Rights And Inheritance (Jaffna) No 1
of 1911
Application of the Act
Section 3(1) -
(1) Whenever a woman to whom the Tesawalamai applies marries a
man to whom the Tesawalamai does not apply, she shall not during
the subsistence of the marriage be subject to the Tesawalamai.
(2) Whenever a woman to whom the Tesawalamai does not apply
marries a man to whom the Tesawalamai does apply, she shall during
the subsistence of the marriage be subject to the Tesawalamai.
 How Independent is a Woman in a Marriage Under
Tesawalamai Law According to JMRIO?
An extracted part from section 6 JMRIO
“Such woman shall, subject and without
prejudice to any such trusts as aforesaid, have
Deeply inspired by Roman Dutch Law;
as full power of disposing of and dealing with
such property by any lawful act inter vivos With regard to movable property the
(between living people.) without the consent woman has the full ability to use it in
of the husband in case of movables, or with anyway as she wishes to do so subject to
his written consent in the case of certain conditions;
immovables, but not otherwise, or by last will However, with regard to immovable
without consent, as if she were unmarried.” property such flexibility can not be seen.
What if the Husband can not provide consent?
Section 8 deals with the “Power to District Court to supply consent in certain cases.”
 Case Law Examples For Judicial Recognition Of A Woman’s
Disability With Regard To Property Alienation

Vijayaratnam v. Rajadurai (1966) 69 N.L.R. 145

A married woman governed by the Tesawalamai is not a
femme sole ; she is subject to the marital power of her
husband. The right of the husband to give his consent to the
alienation or mortgage of his wife’s separate immovable
property is an incidence of his marital power.
 More Insights As Per The Facts Of The Case
• “The plaintiff and the 3rd defendant are husband and wife who are governed by the
Tesawalamai and were married after 1911 and before 1947. The 3rd defendant,
who was living in separation since 1951, obtained permission from court in action
no. 320 to sell, without the husband’s consent, certain immovable property which
belonged to her. Although the court authorized her to sell the property at a price
not less than Rs. 2,500- per lacham, she sold certain lots at Rs. 500 per lacham to
the 1st and 2nd defendants. In the present action the plaintiff claimed that the sale
should therefore be set aside and declared null and void.
• Held, that, inasmuch as the sale by the wife was not in accordance with the terms
of the sanction given by court in action no. 326, the husband had sufficient status
to maintain this action.”
 Extra Case

• Seelackchy V. Visuvanalhan Chetty (1922) 23 N. L. R. 97 At 108

“ It is an essential feature of the community in almost all its forms that
the husband should be the manager of the common property. There is
no question that this is so in the Tesawalamai. He can freely sell
(Katharuvaloe v. Menathchipille (1892) 2 C. L. R. 132) and mortgage
(Muttu Krishna 124) the common property without the consent of his
wife.”
 Was Tesawalamai Always So Strict On The Rights Of
Women With Regard To Property Related Rights?
• Some arguments suggest that Tesawalamai did not originally consist of such
disabilities.
• It is further argued that Roman Dutch Law principles which impose severe
restrictions on the independence of women within marriage were introduced
to Tesawalamai through efforts of filling gaps in Tesawalamai Law.
• When the concept of thediathettam is considered, it should be noted that the
courts had the tendency of interpreting it as the Roman Dutch Law principle of
community of property and made it a way to introduce Roman Dutch Law
principles to Roman Dutch Law.
 How Thediathettam Changed Over Time Through Various
Legal Instruments.

Before 1911, Thediathettam = Profits arising out of the estate of either spouse during
the marriage + Property Acquired out of the profits
• Manikkavasagar v. Kandasamy (1986) 2 S.L.R. 8
Only property acquired by a spouse during the subsistence of the marriage for
valuable consideration, such consideration not forming or representing any part of the
separate estate of that spouse, and profits arising during the subsistence of the
marriage from the separate estate of that spouse should be categorized as
thediathetam. The separate property of a spouse is that which he or she had brought
to the marriage or acquired during the marriage by conversion, inheritance or
donation made to him or her. Property purchased out of moneys of the separate
estate of the spouse (mudusom or dowry) would continue to be part of such separate
estate.
After 1911 And Before 1947
 Jaffna Matrimonial Rights And Inheritance Ordinance – After 1947

• Section 15. Property devolving on a person by descent at the

death of his or her parent or of any other ancestor in the
ascending line (the line of relationship traced backward or
through one's ancestors. One's father and mother,
grandfather and grandmother, etc., are in the line direct
ascending.) is called mudusam (patrimonial inheritance).
• Section 16. Property devolving on a person by descent at the
death of a relative other than a parent or an ancestor in the
ascending line is called urumai (non- patrimonial inheritance).
 After 1911 And Before 1947 - Thediatettam
Section 19 – “The following should be known as the thediatettam of any husband or wife,
a) Property acquired for valuable consideration by either husband or wife during the
subsistence of the marriage,
b) Profits arising during the subsistence of the marriage from the property of any
husband and wife.”

Section 20 (1) – The thediatetam of each spouse shall be property

common to the two spouses, that is to say, although it is acquired
by either spouse and retained in his or her name, both shall be
equally entitled thereto.
What Was The Difference That Was Made Through The
New Section To Thediathettam?

• Property purchased by a spouse,

• During the subsistence of the marriage,
• From the finance that they got from selling their separate
property became part of the thediathettam.
 Jaffna Matrimonial Rights And Inheritance Ordinance
As Amended in 1947
Section 19. No property other than the following shall be deemed to be the
thediatheddam of a spouse :-
(a) property acquired by that spouse during the subsistence of the marriage for
valuable consideration, such consideration not forming or representing any part of the
separate estate of that spouse. (Ex – X buys new property from the money she got by
selling one of her separate property)
(B) profits arising during the subsistence of the marriage from the separate estate of
that spouse.
Section 20. On the death of either spouse one-half of thediatheddam which belonged
to the deceased spouse, and has not been disposed of by last will or otherwise, shall
devolve on the surviving spouse and the other half shall devolve on the heirs of the
deceased spouse.
 Your Task - Effects Of The Amendment as per Kumaraswamy
v. Subramanium (1954) 56 N.L.R. 44
• The repeal of the old section 20 and the substitution of the new section 20 have the
following effect:—
(A) if either spouse acquires tediatetam property on or after 4th July, 1947, no share in it vests
by operation of law in the non-acquiring spouse during the subsistence of the marriage;
(B) if the acquiring spouse predeceases (die before) the non-acquiring spouse without having
previously disposed of such property, the now Section 20 applies ; accordingly, half the
property devolves on the survivor and the other half on the deceased’s heirs ;
(C) if the non-acquiring spouse predeceases the acquiring spouse, the tediatetam property of
the acquiring spouse continues to vest exclusively in the acquiring spouse ; the new section 20
has no application because the tediatetam of the acquiring spouse never “ belonged ” to the
non-acquiring spouse.
 Research On These Areas And Cases

• Manickckavasagar v. Kandaswamy (1986)2 S.L.R. 8

• Principles in Muslim law
• Mahr
• Maghar
• Kaikuli
According to the old law According to the new law
Property acquired during All the properties that are
the marriage acquired by either spouse
(Thediatettam/acquired during their marriage from
property) their earnings

Profits arising from the

husband’s mudusam
and wife’s dowry
property