This ruling is in respect of an objection raised by Counsel for the defendant to the hearing of this suit on the ground that the plaintiff from the cause of action should have come to Court by petition instead of a writ of summons.
The plaintiff issued a writ on 28th February, 2011 in which she claims in substance for maintenance for three children she has with the defendant. By rule 2 of Order 65 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47)
“all proceedings for divorce, nullity, presumption of death and dissolution of marriage, maintenance orders and child custody orders under the Act, shall commence by petition”. (my emphasis)
The plaintiff in paragraph 5 of her statement of claim avers as follows:
“The plaintiff contends that since the dissolution of the marriage between herself and the Defendant sometime in March, 2008 to date, the Defendant in breach of his obligations as a father, only contributes a token amount towards the maintenance of the upkeep of the children, contrary to the Children’s Act, 1998 (Act 560).”
The preamble to the Children’s Act, 1998 (Act 560) provides as follows
“AN ACT to reform and consolidate the law relating to children “to provide for the rights of the child, maintenance and adoption, to regulate child labour and apprenticeship, for ancillary matters concerning children’s generally and to provide for related matters”. (my emphasis).
By section 47(1) of Act 560 a parent or any person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, basic education and reasonable shelter for the child. Then section 48(1) of Act 560 provides that a parent of a child, the guardian of the child, or any other person who has custody of a child may apply to a family tribunal for a maintenance order for the child.
So by the provisions of the Matrimonial Causes Act, 1971 (Act 367) and the Children’s Act, 1998 (Act 560) an application may be made for a maintenance order. However the procedure for applying for a maintenance order under the two provisions are distinct. If a party seeks a maintenance order in the Court, and the Circuit Court for that matter, the party has to proceed under Order 65 rule 2 of C.I. 47 that is by petition. If however, a party chooses to proceed under the Children’s Act, 1998 (Act 560) that party has to apply to the Family Tribunal.
There is thus nowhere in the law in this country for the issuance of a
