INTRODUCTION

“You may give your children your love but not your thoughts, for they have their own
thoughts. You may house their bodies but not their souls, for their souls dwell in the house of
tomorrow, which you cannot visit, not even in your dreams”

- Kahlil Gibran the Prophet.

Subject of duty of support mainly spread within the family members such as
husband, wife, children and parents with regarding the money, foods, clothes, household
necessaries and a home. An area of law as important as the one of support, the availability
of a right of recourse not only to the statute but also to the Roman Dutch common law and
the English law on the subject is indeed desirable. Moreover the practice of looking to other
jurisdictions is to be encouraged for it will enable our own law to develop incorporating the
enlightened trends found in other legal systems as is manifest in our law regulating the use
and enjoyment of matrimonial property.1

THE ROMAN DUTCH COMMON LAW

Under Roman Dutch law was the reciprocal obligation of support and husband was
the principle wage owner and he was unable to support self for reasons such as indigence or
ill health and then wife’s obligation came alive.2 The existence of a common household is
not problem with the maintenance. But the joint establishment had been terminated, it
become relevant who was responsible for the break up maintenance is spreading as
follows.3

1
S. Ponnambalam, Law and the Marriage Relationship in Sri Lanka 2nd ed. Colombo, Lake house investments
Ltd, 1987, p.177
2
Ibid p.178 : Oberolzer v. Overholzer 1947 (3) S.A. 98 at p. 103.

3
Hahlo H.R, The South African law of Husband and Wife (4th ed) cape town 1975, p.114
 Husband
provide the
Husband was responsible for the maintenance to
termination of the common household the family

Wife was responsible for the break up Wife lose to claim

maintenance
or guilty of matrimonial misconduct
from husband

The ‘Household necessaries’ mean food, cloths, accommodation and medical

needs.4 In Sri Lankan maintenance act is not follow accommodation after the separation.
Most of the time the indigent party go away from the common house with children and
then they haven’t to allowance to live in their house. While I’m conducting interviews with
legal officers I understood they are not aware with this accommodation and it’s not as a
practical one. But they agreed to add it to the Maintenance Act.

Adequate public notice would be sufficient than the magistrate interdict if

husband wants to stop his wife from pledging his credit5. The ‘Pro semisse’ concept is not
accepted the Sri Lankan context. If it is done could be preventing the conflicts among both.

There was a provision of right to claim maintenance from the children who
refuse to indigent parents. 6 Elders Act and National Charter Policy for Senior Citizens all set
out various rights for older people in the areas of Independence, Participation, Care, Self
fulfillment and Dignity7. The Protection of the Rights of Elders Act (No. 9 of 2000) as
amended in Section 27 provides for the issuance of maintenance orders on the children.8 So
it is a new trend of the maintenance in Sri Lanka.

4
Rathnayke R, Family Law Block 1, Nawala, The Open University, 1987, p.34, Gunarishamy v. Nonababa(1921)
23 N.L.R. 253
5
Lalchand v. Saravanamuththu (1935) 36 N.L.R. 273
6
Oosthuizen v. Stanley (1938) A.D. at page 327, Ambalavanar v. Nawaratnam (1955) 56 N.L.R. 422, Gaffoor v.
Wilson (1990) (1) Sri L.R.142
7
The protection of the Rights of Elders act No:9 of 2000, amended in 2006.
8
Keerthisinghe L.I, The Sunday Leader, Tuesday June 18.2013.
 DEVELOPMENT OF THE STATUTORY LAW ON MAINTANANCE.

The beginner of the maintenance was Vagrant’s Ordinance. Formal statute

released in 1889, no.19 of Maintenance Ordinance. After repealing it current Maintenance
Act was passed.

THE MAINTENANCE ACT OF 1999

#. Act used the word ‘spouse’. So there are no
difference between the wife and husband as pre
act.
#. S.2 (1): rights of spouses to claim maintenance.
#. The responsibility of maintaining one’s spouse
has been conferred on both husband and wife
equally.
#. The male persons who are governed by the
personal laws can claim maintenance from his
female spouse who has property.
#.S.2(2): a child who is unable to maintain himself
/herself and born within the marriage, an adopted
child or a non marital child born out of a marriage
entitled to claim maintenance from either parent.
#. S.2 (3): this is a new provision under the act
about adult offspring who is above 18 years and
below 25 years of age. But this is considering
about people who are getting the higher
education.
#. S.2 (4): disabled offspring who is unable to
maintain himself or herself.
#. S.2 proviso: until the parentage is proving the
children (non marital child, non marital adult
offspring, and disabled non marital offspring)
there is no order for maintenance could be
made. (S.112 of the Evidence Ordinance)
#. S.5 (2): if any person defaults the payment(it
can be a fine) he or she has to getting with
simple or rigorous imprisonment.
#. S.6: the attachment of the salary of the
respondent.
#.S.7: a developed provision such as payment of
maintenance through post office or bank.
#. S.17: It expressly permits for filling of civil
action for maintenance with principles of Roman
Dutch Law.
# Act is not consider to provide maintenance of
parents by children and if it want to done then
can enter to a District court.
#.Act is subjected to the Kandyan Law and
Thesawalamai Law. In some situations act is
applicable to the Muslim law also.

The comparison between the General Law and other personal laws such as
Muslim law we can identify various differences and there was no uniformity of Law.

GENERAL LAW MUSLIM LAW

#. There is a right of spouses to claim #. Under Muslim Law husband who is in

maintenance from each other.
#. There is a provision adult offspring to
claim maintenance from his or her parents
till they reach 25 years old provide that
they have no independence means.
ill health or indigent cannot claim
maintenance from his wife who is earn
higher income.
#.If a Muslim boy who is not a disable
one then he cannot claim maintenance
from his parents if he above 15 years of
age.
 Practically Muslim people’s Maintenance cases are heard by Quazi courts and
only for transfer money come to the Magistrate court but after making decisions. So the
uniformity of law is going to inferior position reason is same problem solved by different
courts. Hence has to change the structure of the courts. Therefore in practice Judges are
facing difficulties to given decisions.9

MAINTENANCE LAW IN SRI LANKA.

#.If a spouse is refusing to claim maintenance10:

 Under s.5 (2) of Maintenance Act no. 37 of 1999, Magistrate can issue a warrant for
a particular person. But if a person is busy and haven’t opportunity to come to court
then s.7 (1) provides for the payment of maintenance through post office or Bank.
But if it is refusing to give maintenance then he or she has to impose punishments.

#. If spouses separate with mutual consent then can they ask maintenance from each
other?11

 Can’t. But if one party who is asking maintenance told that they are not living in
mutual consent then other party has to prove against it. 12
 If there is not enough income to wife who with the custody of the children when
separated in mutual consent court considered that she has to ask maintenance from
husband for the children but not for her.
 Under new maintenance act a wife who refused to living together with husband
without any valuable reason she can ask for the maintenance from the husband.

#. Is it an essential thing to given maintenance from husband to wife who separated from
the husband?

 If wife is move away from husband because her misbehavior then he hasn’t to claim
maintenance for her.
 After wife’s request of the maintenance there is a procedure to go before a family
counselor and get counseling to live together. But if it is not done then under s.2 (1)
husband has to pay maintenance for her.

#. Can parents ask maintenance from their children?

 The Protection of the Rights of Elders Act No 9 of 2000 is considering about this and
parents who are above 60 years old, unable to maintain themselves as indigent can

9
Ummul Marsoona v. Samad (1977)79 N.L.R 209
10
Jayasinghe K.P, Law for Day-Today Life, Samayawardane bookshop (pvt) Ltd, Colombo 10, 2005, p.162.
11
S.2(1) of the maintenance Act of21999
12
Fernandu v. Fernandu 40 N.U.R 241
 apply for the maintenance from one child or more children.13But these provisions
are not available in Maintenance act.

#. Do adopted children claim maintenance from their adoptive parents?

 Yes. To prevent the discrimination of the adoptive children, law is given allowance to
ask maintenance from their parents.14

#. Does spouse can refuse to pay maintenance?

 It is depend on the situation. If a wife who claimed maintenance asks much more than
earlier then husband is trying to prove there was no valid marriage between them.
Then court can consider patent lack of jurisdiction and latent lack of jurisdiction and
have to power to order to pay maintenance again.15
 If wife has misbehavior then husband can prove that and stop to paying maintenance
for her.16

CRITISISM

When I am conducting my research with case law, international laws,

interviews with lawyers, a judge, a legal aid and a probationary officer some of them are
satisfied with the current maintenance act but also when I am introducing the other
countries laws they agreed to it is not enough and have to add new provisions. When we are
comparing the current maintenance act with the previous maintenance ordinance current
issue is in high position. But when we comparing other countries it is not enough and
theoretical issue is completely different from the practical situation.
Maintenance is a civil case. Hence it should be heard in Family courts. In France
(Monitoba law) there are family courts for hearing family matters.17 In Australia
Maintenance matters are heard by Family Courts.18 But in Sri Lanka maintenance cases are
heard by the Magistrate court. It is hearing criminal cases. Most of the time judge and other
officers who are working in the court are working in criminal intention and family problems

13
S.25 (1), s.27 (2) The Protection of the Rights of Elders Act No 9 of 2000.
14
S.13 of Adoption of Children Ordinance no.24 of 1941 and Maintenance Act No.37 of 1999.
15
S.39 of Judicial Organization Act, Priyasith v Hewawitharana(1998)
16
Wijesuriya v.Silva 38 N.L.R.425, Shanmugam v. Athamuththu 69 N.L.R.62, Balasingham case(1985)2 S.L.R.
8,Anakade v. Mariappan 33 N.L.R.198, Samaraweera v. Jayawardane 4 N.L.R. 106, Jayasighe v. Jayasinghe 55
N.L.R 410, Jayarathne v. Jyarathne and others (2002)3 S.L.R. 331
17
S.3 of The Parent’s Maintenance Act.
18
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home .
are very personal. But if they are revealed in front of outside people it can be a major effect
for the parties because there are law breakers on the audience. Basically the female party is
become nonprotectional in the society after the inquiry. Then it can be a reason for future
criminal cases. When we are considering the burden of proving method, it is same as to
criminal cases. That is not sensitive one and taking long time period to hear the case. So
when come the result the after two or three years asked maintenance payment is going to
inferior. So Maintenance Act should be considers about the Family Courts. It is true that as
foot is changing shoes is changing as various courts not giving various decisions for same
matter.
Family matters are always bound with the sensitivity. Therefore most of the
cases can be solved through a counseling process. In Singapore legal system, they allow
parties to the mediation and if problem cannot solve then transfer to the family court. 19 But
in our country family disputes are not going to the counseling method and even it is transfer
through a court order it is not active.
In criminal cases there is a procedure to stop foreign travels of parties by a court
order when case heard in court. But in Family cases there is no procedure as like above.
Therefore when a maintenance cases are hearing if one party leave from the country then
other party has to wait until he or she comes back. So for that period innocent party
become an indigent and law is also not help for that person. These are wanted to add to the
act.
In Australia, spouses can claim maintenance for themselves even after the
separation and divorce20. But in Sri Lanka spouses cannot ask for maintenance if they are
divorced. If the separated parties are not strong from the money it is a moral issue to given
care for earlier husband or wife till they are remarry or finding another income. It is a
humanity issue.
To proving the paternity or maternity there is a separate provision as a ‘blood
test’21. Even in Sri Lanka D.N.A tests are available there is no special provision in
maintenance act. It is a disadvantage of the act. It is given influence to cohabitation and

19
http://eservice.nlb.gov.sg/unitybar/discovermore.app .
20
http://www.familylawcourt.gov.au/wps/wcm/connect/FLC/Home .
21
S.27(1) Scottish Maintenance and Custody Act, chapter 160 of the revised statutes, 1989
repute marriages as a special part in the act22 and husband should pay for pregnant term23
and when there are two or more possible fathers a court may order to make payments24
with an agreement25 in Scotland. But even rich people who are engaging with unlawful
affairs with women those women cannot ask maintenance from those males because act is
not strictly provided a section as Scotland. Even imprison time period also limited for one
month26 in Sri Lanka but in Singapore it is expanding as six months if not done maintenance
properly.27 As a result of that most of the time the people who are rich with strong power
not entitle to claim maintenance for indigent parties.
Lots of maintenance acts are including parent maintenance for one act (ex:
Scottish).28 Sri Lanka main act is not considering about the parent but The Protection of the
Rights of Elders Act No.9 of 2000 is influencing to the parents maintenance. Even there are
children than one then they have to maintain parents29 and not matter with the living
place30. If the Elders act was passed people are not aware about that and not tend to ask
maintenance from their children in practically. As a result of that numbers of elders home
are increasing and moral issues are decreasing among the society. It is badly affect to the
social and legal context of the country. As a new idea I introduce that after the divorce or
when starting to claim maintenance both spouses should have given love and affection their
children equally and if it is not done by them it should be enforced by a court order because
affection of both parents are must for built up a human. If it is not done then we feed to
build up an animal. If parents are separated they haven’t right to separate their children.
Children also have a right to binding with their old parents by love but not only given money
and food. So maintenance should be included with physical and mental both.

22
S.11 of ibid
23
S.11(1) of ibid.
24
S.11 (2) Scottish Maintenance and Custody Act, chapter 160 of the revised statutes, 1989
25
S.13 Scottish Maintenance and Custody Act, chapter 160 of the revised statutes, 1989
26
S. 5 of Maintenance Act (No.37 of 1999) in Sri Lanka.
27
http://eservice.nlb.gov.sg/unitybar/discovermore.app .
28
S.15 of Scottish Maintenance and Custody Act, chapter 160 of the revised statutes, 1989
29
S.5(1) of the Parent’s maintenance act in France, http://web2.gov.mb.ca/laws/search.php .
30
S.4 of ibid.
 CONCLUSION
Above discussion is clearly showing that there are some lacunas of the law of
support obligation in Sri Lanka. Because in surface we can see it is enough to providing
maintenance solutions for the people but also it has included some provisions to the act.
These adding provisions should obey to the legal and social system of Sri Lanka. Even have
some doubts about the law, after developing if the theoretical issues can practice in proper
manner it is sure that law of support obligation in Sri Lanka provides a comprehensive
package of maintenance solutions for the needy litigants in the country.
 REFERENCES.

Ambalavanar v. Nawaratnam (1955) 56 N.L.R. 422

Anakade v. Mariappan 33 N.L.R.198,

Balasingham case(1985)2 S.L.R. 8,

Fernandu v. Fernandu 40 N.U.R 241

Gaffoor v. Wilson (1990) (1) Sri L.R.142

Gunarishamy v. Nonababa(1921) 23 N.L.R. 253

Hahlo H.R, The South African law of Husband and Wife (4thed) cape town 1975, p.114

http://eservice.nlb.gov.sg/unitybar/discovermore.app .

http://web2.gov.mb.ca/laws/search.php

http://www.familylawcourt.gov.au/wps/wcm/connect/FLC/Home .

Jayarathne v. Jyarathne and others (2002)3 S.L.R. 331

Jayasinghe K.P, Law for Day-Today Life, Samayawardane bookshop (pvt) Ltd, Colombo 10,
2005, p.162.

Jayasighe v. Jayasinghe 55 N.L.R 410

Keerthisinghe L.I, The Sunday Leader, Tuesday June 18.2013.

Lalchand v. Saravanamuththu (1935) 36 N.L.R. 273

Oberolzer v. Overholzer 1947 (3) S.A. 98 at p. 103

Oosthuizen v. Stanley (1938) A.D. at page 327
Priyasith v Hewawitharana(1998)

Rathnayke R, Family Law Block 1, Nawala, The Open University, 1987, p.34

Samaraweera v. Jayawardane 4 N.L.R. 106

Shanmugam v. Athamuththu 69 N.L.R.62

S. Ponnambalam, Law and the Marriage Relationship in Sri Lanka 2nd ed. Colombo, Lake
House investments Ltd, 1987

S.2 (1) of the maintenance Act of21999

S.3 of The Parent’s Maintenance Act.

S. 5 of Maintenance Act (No.37 of 1999) in Sri Lanka.

S.5(1) of the Parent’s maintenance act in France,

S.13 of Adoption of Children Ordinance no.24 of 1941 and Maintenance Act No.37 of 1999.

S.25 (1), s.27 (2) The Protection of the Rights of Elders Act No 9 of 2000.

S.27(1) Scottish Maintenance and Custody Act, chapter 160 of the revised statutes, 1989

S.39 of Judicial Organization Act.

Ummul Marsoona v. Samad (1977)79 N.L.R 209

Wijesuriya v.Silva 38 N.L.R.4