84 BASNAYAKE J .— Rasamany v. Subramaniam.

1948 P resen t: Basnayake J.

R A SA M A N Y , A ppellant, and SU BRAM AN IAM , R espondent

S. G. 484— M . 0 . Anuradhapura, 21,381

Maintenance—Having sufficient means— Ga/paciby to earn money—Liability

of husband—Section 2.
The word “ means ” in section 2 o f the Maintenance Ordinance should
be given a wide meaning and includes the capacity to earn money.

A ppe al from a judgm ent o f the M agistrate, Anuradhapura.

H . W . Tambiah, with S. Skarvananda, for the applicant, appellant.

C . Thiagalingam, for the defendant, respondent.

Cur. adv. w ilt.

J u ly 21, 1948. B asn ayak e J .—

The appellant is th e w ife o f the respondent. T hey were m arried in

M a y, 1947, and lived together a t Chavakachcheri till Septem ber, 1947,
w hen respondent took the appellant to the house o f her parents at
Anuradhapura and le ft her there. The appellant alleges that from that
-time th e respondent has failed to m aintain her. The respondent was a
clerk a t th e Trincom alee K achcheri from M ay, 1947, to February, 1948.
H e is n ot em ployed now . The appellant instituted proceedings for
m aintenance against th e respondent once before this, and in those
proceedings the respondent offered to m aintain the appellant on condition
<of her living w ith him . She accepted the respondent’s offer b ut he
fa iled to m aintain her. In these proceedings to o , at the very outset,
fh e respondent m ade a sim ilar offer, but the appellant declined to accept
it. The learned M agistrate is satisfied that she has good grounds for
tier refusal.
The appellant and the respondent appear to be persons o f som e social
' stan d ng. The appellant’s father is a trader in straw . A t her marriage
her father gave a dow ry o f R s. 2,000 in cash, R s. 2,000 in jew ellery, and
a land w orth R s. 4,000. The m oney received as dow ry form ed part o f the
purchase price o f a land the respondent purchased at Chavakachcheri,
w h ich is his hom e. The respondent says he has n o em ploym ent and no
incom e. H e also claim s that he has to look after his parents. H e
asserts that he is prepared to m aintain the appellant i f she w ill com e
a n d liv e w ith him . The follow ing is his evidence on the p o in t:
“ E ven in this case, on an earlier date I offered to take back applicant
to Chavakachcheri. I have p u t up a house on the land we bought
in applicant’s nam e. A husband and w ife can live in the house I have
p u t up. The new house is as b ig as m y father’s house. I have three
brothers and one sister and m y p arents; in a ll five people liv e in that
 BASNAYAKE J .—Rasamany v. Subramaniam. 85

house. I am prepared to bu ild a bigger house later. I even n ow am

w illing to take applican t to Chavakachcheri and select an y bouse a t
Chavakachcheri fo r applican t.”
In cross-exam ination b e says :
“ A pplican t was a du tifu l w ife to m e. I am unem ployed a t th e
m om ent. I have n o incom e. I h ave to look a fter m y parents. I am
prepared to m aintain m y w ife i f she w ill com e and liv e w ith m e. I h ave
n o incom e on m y ow n. I can cu ltivate other p eop le’s lands and
support m y w ife.”

The appellant alleges th a t th e respondent has p rop erty. She relies

o n th e fa c t th at th e respondent applied fo r th e village headm anship o f
C havakachcheri. The respondent adm its th at he applied fo r th a t office
h u t denies th a t he is possessed o f a n y property. T h e learned M agistrate
w hile h olding th a t th e appellant is en titled to m aintenance has refused
t o m ake an order under section 2 on th e ground th a t th e respondent has
n o t sufficient means.
On th e evidence in th is case I am unable to agree w ith th e learned
M agistrate. U nder section 2 o f th e M aintenance O rdinance, i f any
person having sufficient means neglects or refuses to m aintain his w ife,
th e M agistrate m ay order such person to m ake a m on th ly allow ance fo r
th e m aintenance o f his w ife. Section 3 goes on to say th a t i f such person
offers to m aintain his w ife on con d ition o f her livin g w ith him , th e M agis­
tra te m ay consider any grounds o f refusal stated b y her, and m ay m ake
an order under section 2, notw ithstanding such offer. T h e respondent’s
claim th at he is unable to p a y m aintenance is irrecon cilable w ith his
offer to m aintain his w ife on con d ition o f her livin g w ith him . I t is
n otew orth y th a t section 3 speaks o f “ such person ” , m eaning th ereby
“ a person having sufficient m eans ” . I f a m an is able to m aintain his
w ife on con dition o f her livin g w ith him , it w ill b e d oin g violen ce to
language to say th a t h e is a person w ith ou t sufficient means to m aintain
his w ife. The respondent has n ot on ly offered to m aintain his w ife
o n condition o f her livin g w ith him , b u t he has also offered to leave her
to select any house in C havakachcheri to liv e in.
Learned counsel fo r the appellant subm its th a t th e w ord “ m eans ”
should in this con tex t be given a w ider m eaning than incom e. H e cites
the cases o f Sivapakiam v. S ivapakiam 1 and Thangachi v. M ohamadu
L ebbe2. The second case has n o bearing on th e present discussion.
In th e first case, M aartensz J . relies on th e decision o f B urnside C .J.
in K . M ichohamy v. A . S vdd appu 3 and the E nglish case o f Earnshaw
v. Earnshaw 4. N either o f these cases is a decision on a statute w hich
contains th e w ords “ having sufficient m eans ” . T h e form er case is a
decision on section 3 (2) o f th e V agrants Ordinance, N o. 4 o f 1841, w hich
re a d s :
“ E very person being able, w h olly or in part, to m aintain his fam ily,
leaving his w ife or his child, legitim ate or otherw ise, w ithout
m aintenance or support, w hereby th ey shall becom e chargeable to or
require to be supported b y others. ”
1 (1934) 36 N. L . R . 295. * (18S3) 5 S. C. C. 198.
* 3 Cr. A p p . R. 43. * 74 L . T . R . 569.
 86 BASNAYAK K J .— Rasamarvy v. Svbramaniam.

The latter is a decision under section 1 o f the Summary Jurisdiction

(Married W om en) A ct, 1895, the m aterial words o f which read—

“ whose husband shall have deserted her, or whose husband shall

have been gu ilty o f persistent cru elty to her, or w ilful neglect to provide
reasonable m aintenance fo r her or her infant children whom he is
legally liable to m aintain. ”

That decision rests on the effect o f the words “ w ilful neglect I t was
held th at w ilful neglect must be proved b y evidence showing that the
husband had or could earn m oney or could get m oney.
Learned counsel for the respondent submits th at “ means ” does n ot
mean ability to earn and th at under the Maintenance Ordinance there
was no obligation to w ork and pay. H e also subm its that the phrase
“ having sufficient means ” should be understood in the sense o f having
sufficient means a t th e m aterial date. I am unable to accept the sub­
missions o f learned counsel fo r the respondent. In m y view section 2
should be given a w ide meaning and n ot restricted in its scope to persons
having an incom e or actually earning at the tim e o f the application.
In this con text the w ord “ means ” should be taken to include capacity
to earn m oney. I t cannot be th at the legislature when enacting these
provisions intended to exclude from the scope o f sections 2 and 3 able-
bodied m en capable o f earning and m aintaining their wives and children
bu t who b y their volu n tary a ct refrain from so doing. A consideration
o f the decisions under section 488 o f the Indian Criminal Procedure Code
sub-section (1) of w hichhas the v ery words o f oursection 2, “ Ifa n y p e rso n
having sufficient means neglects or refuses to m aintain his w ife, or his
legitim ate or illegitim ate child unable to m aintain itself ” , confirm s me
in the view th at th e w ords “ sufficient means ” should not be given a
narrow m eaning. The general effect o f these decisions is that the expres­
sion “ means ” is n ot confined to visible means such as real property or
definite em ploym ent.
In the Madras case o f Kandctsami C hetty1 it was held that a healthy
able-bodied man must be taken to have sufficient means to support his
w ife. Beaum ont C .J. in th e B om bay case o f M uni K antivijayaji v.
Em peror 2 sayB :

“ I th ink th at ‘ means ’ within section 488 includes a capacity

to earn m oney, and th at i f a man can be shown to be capable o f earning
m oney, then he has th e means to m aintain his w ife. Prim a facie,
a man tw en ty-six years o f age as th e applicant in this case is must
be presum ed to be capable o f earning m oney. B ut th at presum ption
m ay be rebu tted.”

The H igh Court o f Burm a Las in a series o f cases taken a sim ilar view .
In the case o f M a Tha v. Ega San E ? it was held that the presum ption
was th at an able-bodied man had sufficient means to support bis child
as w ell as him self and th at it was for him to prove the contrary. This
decision was follow ed in the case o f U. Thiri v. M a Pwa T i 4 where it
was held th at a B uddhist m onk was regarded as a person having sufficient
1 (1926) A . I . R . Madras 346. 8 13 Or. L. J.'162.
* (1932) A . I . R. Bombay 285. * (1923) A . I . R. Rangoon 131.
 I . H. W ’jesinghe v. The M a jor o f Colombo. 87

means although he lived on ch arity. The observations o f Page C .J.

in the case o f M aung T in v. M a H m in x, a decision o f th e P u ll B ench,
should be noticed in this connexion. H e says at page 140 :

“ B ut the term ‘ sufficient means in m y judgm ent, is n ot confined

to pecuniary resources, and I agree w ith the view expressed b y E ales
J.C. in M a Tha v. N ga San E . (13 Cr. L . J . 162) th a t ‘ a m ere denial
b y a man him self o f sufficiency o f means, when th at man is an
able-bodied man, is n ot conclusive p ro o f o f want o f sufficient means ’ . ”

H is rem arks at page 141 are equally relevant. H e says :

“ In m y opinion, a m an is n ot, and ought n ot to be, perm itted b y
his ow n volu n tary a ct to free h im self from the elem entary d u ty o f
m aintaining his w ife and children.”

On his ow n adm ission th e respondent is capable o f earning and m ain­

taining his w ife. I therefore allow th e appeal w ith costs and set aside
th e order o f the learned M agistrate and send the case back w ith a direction
that th e learned M agistrate should determ ine th e am ount o f m aintenance
that the respondent should be ordered to p ay. The appellant is en titled
to the costs o f the trial.
A ppeal allowed.