SANSONI, J.—Abeysekera v. Abeysekera
1957Present: Sansoni, J.J>. M. ABEYSEKERA, Appellant, and SOMAWATHIEABEYSEKERA, Respondent
S. O.1204 (with, Application 500)—M. C. Kandy, 15,847
Kandyan Law—Maintenance—Procedure for enforcement of order obtained underKandyan Marriage Ordinance (Gap. 96), s. 20—Effect of Kandyan Marriageand Divorce Act, No. 44 of 1952, ss. 67-70.
After the Kandyan Marriage and Divorce Act No. 44 of 1953 came intooperation in 1954, a Magistrate’s Court has no jurisdiction to entertain anapplication for the enforcement of an order for maintenance made by a Registrarunder section 20 of the Kandyan Marriage Ordinance upon the dissolution of aKandyan marriage. When the Kandyan Marriage Ordinance was repealed/by section 67 of Act No. 44 of 1952, the procedure for the enforcement of anI; order for maintenance made under the repealed Ordinance was alsoI necessarily repealed.
jAlPPEAL from a judgment of the Magistrate’s Court, Kandy.
R. Dias, for the respondent-appellant.
S. Thangarajah, for the petitioner-respondent.
February 25, 1957. Sansoni, J.—
The parties to this appeal were husband and wife at the time an appli*cation for maintenance was made by the wife in 1952. In that year aconsent order was made by the magistrate that the husband will payRs. 35 a month as maintenance to the wife.
In April, 1953, the parties, being Kandyans, went before the ProvincialRegistrar and their marriage was dissolved under the Kandyan MarriageOrdinance, Cap. 96. The Registrar acting under section 20 (2) (b) ofthat Ordinance made the order that the court order for maintenanceshould continue to operate even after the dissolution. Perhaps, whathe meant by that was that the husband must continue to pay the wifethe sum of Rs. 35 a month. He could not, of course, have ordered thatthe order for maintenance previously made should continue to haveeffect, because by reason of the dissolution of the marriage that orderceased to have any validity.
In 1956, the applicant filed an affidavit before the magistrate in thesame maintenance case and moved for a notice on her former husbandto show cause why he should not pay Rs. 55 being arrears of maintenancewhich fell due in 1956. Notice was served on the former husband whoapparently showed cause against the application, and the matter was
SANSONI, J.—Abeysekera v. Abeysekera
fixed for inquiry. The magistrate made order after inquiry that as theRegistrar’s order which adopted the court order regarding maintenancewas made before the Kandyan Marriage and Divorce Act No. 44 of 1952came into operation, that order for maintenance must stand and thearrears could he recovered by the applicant. The former husband hasappealed against the magistrate’s order.
The Act of 1952 came into force in 1954, andit is important to note thatby section 67 it repealed the Kandyan Marriage Ordinance, Cap. 96.That Ordinance by section 20 enabled an order for maintenance madeby a Registrar upon a dissolution of marriage to be enforced by a Magis-trate’s Court in the exercise of its jurisdiction under the MaintenanceOrdinance. When, however, the Kandyan Marriage Ordinance wasrepealed the procedure for such enforcement was also necessarily repealedand was not therefore available to the applicant when she filed herpresent application in 1956.
During the argument in appeal search was made in the Act No. 44 of1952 for some provision which might have kept alive the old procedurefor the enforcement of orders made under the repealed Ordinance orintroduced a new procedure regarding that matter. It would appear thatthere is no such provision. Although sections 68, 69 and 70 of the Actcontain provisions which relate to the Kandyan Marriage Ordinanceand keep alive certain provisions of this Ordinance, there is no provisionrelating to the matter under discussion. The only provision whicheven remotely has a bearing on the present case is section 69 (3) whichprovides that the provisions of that Ordinance shall continue in forcefor the purpose of the completion of any act which had been commencedbut not completed under that Ordinance before the appointed date.
I think that under this provision, if the present application hadbeen filed before the Act came into operation, it could have been pro-ceeded with under the old Ordinance, but in no sense can an applicationsuch as this which had not even been filed in 1954 be regarded as an actwhich had been commenced in 1954. The applicant’s counsel, perhapsrealising the difficult situation in which the applicant is now placed,argued that the validity of the order of dissolution is now being contestedbecause an application for the enforcement of the provision for mainte-nance specified in that order is being contested. He, therefore, sought tobring this application under section 69 (2) but I do not think that sectionhas any bearing on the matter. Nobody is contesting the validity of theorder of dissolution.
The conclusion I come to is that the magistrate had no jurisdictionto entertain the present application in view of the repeal ofsection 20 of the Kandyan Marriage Ordinance, and it shouldhave been dismissed.
The appeal is allowed. I make no order as to costs.
D. M. ABEYSEKERA, Appellant, and SOMAWATHIE ABEYSEKERA, Respondent