From sacred duty to statutory right

The evolution of Maintenance Law in Sri Lanka 

• The duty of support between spouses is lifelong and reciprocal, allowing a needy wife to claim maintenance from her husband, while also recognizing that a financially incapable husband may be supported by his wife
• In the modern legal framework, maintenance has evolved into a shared responsibility, reflecting changing social realities and the principle that support between spouses is based on genuine need

Maintenance law reflects the legal and moral duty of spouses to support one another, ensuring that neither partner is left without the basic necessities of life. 

The classical view was articulated by William Blackstone, who defined maintenance as the obligation of a husband, by virtue of marriage, to provide his wife with necessities suitable to their social standing. Similarly, Johannes Voet emphasized that the duty of support between spouses is lifelong and reciprocal, allowing a needy wife to claim maintenance from her husband, while also recognizing that a financially incapable husband may be supported by his wife.

In Sri Lanka, the concept of maintenance developed under the influence of the Roman-Dutch law, which traditionally placed the primary responsibility for family support on the husband as the main provider. However, this obligation was not absolute and exceptions were recognized when the husband was unable to earn due to illness or other circumstances. In the modern legal framework, maintenance has evolved into a shared responsibility, reflecting changing social realities and the principle that support between spouses is based on genuine need and mutual obligation.

In the Sri Lankan legal framework, the Maintenance Ordinance (No. 18 of 1889) established the legal framework for dependents to claim financial support. The Maintenance Act (No. 37 of 1999) modernized this framework by broadening the scope of maintenance and clarifying family members’ responsibilities. Maintenance now goes beyond financial assistance, covering essential needs such as healthcare and proper living conditions, ensuring that spouses and dependents who cannot support themselves are adequately protected.   

In Abeysingha v. Perera (1991, 1 Sri L.R. 78), the court held that maintenance should reflect the social status, lifestyle, and financial resources of the parties, and litigation costs may also be considered based on financial capacity. Under Section 2 of the Maintenance Act No. 37 of 1999, a spouse with sufficient means who neglects or refuses to support a dependent spouse can be required by the Magistrate’s Court to pay a monthly maintenance allowance. 

In Rasamany v. Subramanium, the court illustrated how maintenance laws are applied in practice and emphasized mechanisms to enforce compliance with maintenance orders. Under Section 3 of the No 37 of 1999 Maintenance Act, a maintenance order for a child, adult child, or disabled child remains valid only while the person entitled in that category but once they no longer qualify, the order ceases to have effect, except for recovering arrears or amounts already due.

According to Section 614(1)of the civil procedure code, an action where the husband or wife when instituting an action will produce a petition for alimony pending the action where the judge is being satisfied with the facts will order the husband to pay alimony where the amount will be determine from less than one fifth of the husbands average net income for three years. 

In Sanjeewa Jayawardana vs Harshani Karunasinghe (2005)2 SLR 203 according to justice Wimalachandra highlighted an important legal principle. He stated that when a husband or wife files an action in the District Court seeking matrimonial relief (such as divorce, judicial separation, or alimony), the issue of maintenance or alimony should normally be dealt with within that matrimonial action.

Section 619 of the Civil Procedure Code grants the court additional powers after a decree of separation is issued. Once such a decree is granted, the court may entertain an application made under summary procedure to make appropriate orders regarding the custody, maintenance, and education of minor children. These provisions ensure that the welfare and financial security of children remain protected even after marital separation.

In a scenario where the husband wife with mutual consent separated will they be entitled to file a maintenance application is determined through section 2(1) of the civil procedure code, The case of Mivo Hamine v. Girigoris Appu (15 NLR 191) is a landmark decision in Sri Lankan law relating to maintenance and alimony. It clarified the scope of a husband’s duty to maintain his wife and the court’s discretion in awarding support.

The law recognizes exceptions where a spouse may not be entitled to maintenance, such as when the spouse seeking support is shown to have engaged in continuous adultery. Adultery alone does not automatically bar a maintenance claim; the courts require that the adultery be repeated or habitual for the spouse to lose the right to maintenance. 

Arumugam v. Athai (1948), where Justice Basnayake held that a wife’s continuous adultery can serve as a ground to deny maintenance, with the burden of proof resting on the husband. When a woman is accused of adultery in a maintenance case, she does not need to prove her innocence. This was affirmed in Selliah v. Simmamah (1947), establishing that the party alleging immorality bears the burden of proof. 

Under Section 4 of the Matrimonial Ordinance (1889), a woman is not required to prove chastity, but she is not entitled to maintenance if it is proven she is living in adultery. 

Likewise, if adultery is alleged against the husband, the burden of proof falls on the wife, ensuring fairness in marital disputes. In the recent case Chandrakanthi v. Gamini Kumara (2022), the court held that when filing a maintenance application, whether the spouse was committing adultery “at or about the time” is a question of fact, and each case must be evaluated independently.

Father contains an obligation to provide financial support for a child, whether legitimate or illegitimate, once paternity is established. Courts have consistently held that proof of paternity triggers the father’s duty to pay maintenance. 

In M. G. Allis vs A. D. Nandawathie nlr vol 75 page 191 [75 NLR 191]the court considered a case of disputed paternity and emphasized that the court must carefully evaluate all available evidence when paternity is contested. While a birth certificate is not conclusive proof of parentage, it carries evidential value and can assist the court in determining the facts. 

According to b, Section 32(5) of the Evidence Ordinance recognizes that statements made by a parent regarding parentage have genealogical value, allowing the court to rely on parental declarations as relevant evidence in establishing lineage. A similar principle was applied in Piyasena v. Kamalawathie (77 NLR 406), where the court held that producing a birth certificate is not mandatory in a maintenance application.

Under the original provisions of the Maintenance Act No. 37 of 1999 in Sri Lanka, maintenance was generally limited to children who were below 18 years of age. Once a child reached the age of majority, the legal obligation of a parent to provide maintenance normally came to an end. 

According to the amended law, a child who is over 18 years of age may still apply for maintenance in certain circumstances, particularly when the child is unable to maintain himself or herself due to continuing education, physical disability, or mental incapacity. However when the child reaches 25 years old loses the right of maintenance .

It is evident that in the No 37 of 1999 Maintenance Act there is no sufficient provision that encompasses maintenance that an adult over the age of 60 is entitled to but According to the Protection of the Rights of Elders Act (No. 9 of 2000), as amended, Section 27 specifically allows courts to issue maintenance orders against children who fail to support their parents. Where it indicates a modern development in the maintenance law of Sri Lanka .

It is evident though there is lacuna under the maintenance law such as maintenance cases are heard in the magistrate court though it is a sensitive topic the Magistrate court order impacts criminal intention and also the fact that the maintenance act does not encompass the fact where there is no legal provision regarding payment for the elders who are above 60 but when analysing the positive perspective modern law reflects a broader understanding of maintenance, extending beyond financial support to include healthcare, education, and essential living needs.