18th July 1999
Saved by the Bill
Part I of this article titled "Maintenance ordinance: who benefits?" appeared last week
The former President of the Colombo Magistrate Court Lawyers' Association, the late H. Joe Perera, had once recommended that the Maintenance Law should be amended, to his friend Vincent Perera, the then Minister of Justice.
Mr. Perera was a senior lawyer practising in the Magistrate's Courts. He appeared for affluent women who came from privileged backgrounds and had been deserted by their husbands. Women from high society were reluctant to go before the Magistrate's Court and plead for maintenance as the then maximum maintenance that a Court could award was Rs. 100 per mensem.
When the law was amended, permitting the Magistrate to order any amount as maintenance on proof of income of the men, more and more women from affluent families came to Court seeking maintenance, and invariably most of them retained the most senior and the most expensive counsel. Most of these women were married to businessmen of considerable wealth.
The question was, how could a lawyer, even with considerable experience and ability, prove the income of a man who had a few months before been driving away his wife and children, lock, stock and barrel, from their matrimonial home. Most businessmen, for that matter, never paid income tax.
The wealth of the majority of these men was earned by various activities, both legal and illegal. They easily avoided the tax hunters of the Income Tax Department. Their dealings were mostly in cash. Their vehicles were registered in the name of the original owner and was on "open papers".
However even a street urchin knew that the businessman was the richest man living in the vicinity. The man had influence over every one. He was able to control the police with his money. The woman had no alternative but to file action in the Magistrate's Court for maintenance.
When the man appeared in Court, in deference to summons issued at the instance of his wife claiming maintenance, he would inform the Judge that he had no income, or was unemployed, or that his income was about one fiftieth of his true income.
On the basis of his assertions which were not made on oath or on affidavit, the Magistrate, without having alternate methods of inquiry on the false assertion made by the respondent, on the first day, would order a pittance as maintenance for the children. The man would first make allegations against the wife, since the Magistrate is prevented by law from making any order for the wife without a proper inquiry. Then he would be informed that he would be made to pay after a final determination at the end of the case.
Most women who come to Court know that the order made by the Magistrate for maintenance for the children for a month is spent by her husband for alcohol, cigarettes or to feed the pets for a day.
One time chief Magistrate of Colombo, the late B.G.S. David, was loved by many women. It is said that when Mr. David was transferred out of Colombo, petitions were sent to the JSC by women protesting against his transfer. When he was there these destitute women had some semblance of a chance before them.
When a man came out with excuses that he had no income, the magistrate would threaten the man that he would send his court sergeant, a burly moustached gentleman who had served in the Army, to his place of business with the women and get true information about the man's income. There were no provisions under the law to do any of these things, but every one accepted that this was the only method to find out the truth. Naturally the women adored him. Mr. David was also a practical judge.
If one truly implements the law, the entire Judicial process seems to work against the rights of women.
Mr. Perera was convinced that the only way in which a man could be made to pay even 50% of his actual earning was to make him swear an affidavit when he appeared in Court on the very first day.
He believed that if the man's lawyers would tell him that if he swore a false affidavit he would be dealt with for contempt, perjury or violating the conditions in the Oaths and Affirmation Ordinance, with a penalty of being sentenced to a jail term, it would make him think twice.
To prove the income of a man by evidence is a terrible burden that rests on women .As I have pointed umpteen number of times in this column, witnesses who swear to tell the truth rarely speak the truth in the witness box.
They have absolutely no compunction about lying if it is to their benefit. Unfortunately the Buddhists do not have to swear upon anything.
Members of a nation which consists of habitual liars, confidence tricksters, would at the least possible opportunity lie to their advantage as Robert Knox found.
The woman would then have to find evidence to prove the income of her rich husband, who runs around in the most modern Pajero Inter-cooler, having several mistresses and spending lavishly on them.
After a long and protracted trial, the maintenance that is ordered is dependent only on the income which had been proved by the woman, which is far below the actual income. The maintenance ordered is hardly sufficient to maintain the children for even a few days at the same standards that the husband maintained them before they departed.
Vincent Perera, a veteran politician, a Proctor's Clerk, and a Minister of Justice, was an extremely practical man. He submitted the proposals of Mr. Perera to the officials, but before they could become law, there was a Cabinet re-shuffle and the portfolios changed.
On the other hand, if the respondent is a person who receives a stipulated salary from any organization, Government or non-Government, his income could easily be proved. Therefore, the maintenance law seems to be fair to women whose husbands are Government or non-Government officers drawing a fixed monthly salary.
The Bar Association and other senior lawyers whose advise was sought by the minister, considered these problems and practical difficulties in obtaining a fair order against a non-salaried person, and recommended that Section 6 Sub-section 1 of the new Maintenance Bill be amended to include that the respondent is directed to furnish to Court on the summons returnable date, salary or income particulars certified by the employer or the relevant authority.
Unfortunately this recommendation had not been included in the new Maintenance Act.
The following are the recommendations submitted by the Bar Association that had not been included in the Maintenance Act.
1. Section 2 of the Bill should be amended to retain the time limit of 12 months in respect of illegitimate children unless sufficient reason is adduced to explain the delay.
2.The scope of the Section should be enlarged by introducing a sub-section enabling a parent to claim maintenance from children.
3.Rationale basis of quantum of maintenance should be set out in
Section 2(1), 2(2), 2(3), 2(4).
4.Section 4(2) of the Bill should be amended to permit an application to be filed in any jurisdiction as in the Maintenance Ordinance, subject to the condition that if more than one application are filed between the same parties, the first application be taken for adjudication.
5.Section 6(1) – should be amended to include the direction to go with the summons that salary/income particulars of the respondent certified by the employer or by any other Authority.
6. Section 8 – should be amended to provide for order for enhancement or change to take effect from the date of application for enhancement/change.
7. Section 11 – should be amended to provide for every application to be made by affidavit and copy of the affidavit should be served along with summons.
8. Section 14 – should be amended providing for provision for stay order through a revision application.
9. Section 12(2) – should be amended to provide for trial in absentia, as in High Court proceedings – Scope of Section 192 of Code of Criminal Procedure Act should be considered and enlarged if necessary.
10. To provide for special fund for children from which payment to be made to children until the parent is made to pay the maintenance – as it is the obligation of the state to provide for the welfare of children.
11. Section 7(1) – may be amended for payment to be made before family counsellor or any authority to lessen burden of Court.
12. Section 20 – containing definition of adult children needs to be considered.
It must be said in all fairness to Justice Minister G.L. Pieris, that he did his utmost to bring a new legislation to revamp the Maintenance Act which has been in existence for a number of years.
With this intention he consulted the Bar Association and other senior lawyers to make their recommendations.
The Bar Association too, unlike when the draft Bail Bill was submitted to them, did not sleep over it. It called its branches to submit recommendations having circularised the Bill to them. Branches of the Bar Association responded to this call, and sent their recommendations.
The Bar Association then convened a seminar to discuss the Bill and the recommendations of the branches.
At the conclusion of the seminar a concise statement was prepared incorporating most matters where there was a consensus.
Then it was submitted to the Law Committee of the Bar Association.
The matter was discussed fully at the Law Committee and then the recommendations were discussed at the Bar Council. It was these recommendations that were submitted to the good minister for the purpose of amending the Maintenance Bill.
It is unfortunate that the Law Commission has not approved most of the recommendations submitted by the Bar Association.
For instance the recommendation of the Bar Association that the children have a reciprocal duty to support their aged parents, was deleted on the basis that the Magistrates did not have sufficient experience to determine such complex problems which should be determined at another forum.
The recommendation to make it mandatory for the respondent husband to submit a report of his wealth and properties on the summons returnable date binding him to disclose the truth with pain of punishment if he affirms falsely or refuses, was deemed unfair.
The rationale was that on the mere filing of an application no man should be subject to such disclosure. What the commission did not realise was that eighty percent of the maintenance applications filed are by legally married wives.
If it is unfair for a man who has deserted his legal wife to disclose the truth about his income so that his wife and children could be maintained, is it fair for a mother of an illegitimate child to file an application against anyone without a time limit being prescribed? The enabling provision to make such an application though eventually proved to be totally false at the end of the case, would be sufficient to make the legitimate wife deserting her husband, believing the false allegation of adultery made by the other woman.
If this was fair, I cannot understand how it could be unfair for a man who had deserted his wife legally married and children to declare his income.
It is accepted that no laws could be framed to satisfy all the needs of a complex human society. But the laws should be amended or repealed to make the ordinary people of this country feel that their rights are justifiable with the least possible delay and expense.
If not for the sincere gesture of the Minister that it was desirable to get views on the Bill from the main professional body of lawyers and thereby certain recommendations of the Bar Association, were accepted and incorporated in the Bill, it saved a calamitous situation if the Bill was accepted in its original form as approved by the law commission.
Everyone responsible for drafting the original Bill which was presented in Parliament had recommended the repeal of the old Maintenance Act But they had not for a moment bothered to think what would happen to thousands of applications which were pending in court under the old law.
All the applications pending in Court with regard to maintenance would have had no effect with the repeal of the Maintenance Ordinance. It was the Bar Association that saw the great folly of the drafters of the legislation and recommended that transitional provisions be included. It saved the day for thousands of women who had been treading to the respective Magistrate's Courts from far away places to collect their pittance of maintenance which the guilty husband doles out with contempt to the whole process of justice women who would otherwise have fallen from the frying pan into the fire.
This recommendation to include transitional provisions alone saved the Minister from great embarrassment.
He was prepared to listen to those persons who had the best knowledge of the law which is practised in the original Courts, but the learned respected commissioners of the law commission, thought otherwise.
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