( 157 )
Present : Shaw J.
ELIZA v. JOKINO.319—P. C. Negombo, 26,640.
Maintenance proceedings—Oaths Ordinanceapplicable—‘Rightof party
to withdraw from undertaking to be bound by oath.
Maintenanceproceedings are in thenatureofcivil proceedings,
and thereforethe provisionsof section9 oftheOaths Ordinance
applies to such proceedings.
A person who has challenged his opponent to take an oath underthe section cannot withdrawfrom hisundertakingif the opponent
consents to take the oath.
facts are set out in the judgment.
Ascrappa, for the appellant.
May 9, 1917. Shaw J.—
This is an appeal from a maintenance order made by theMagistrate, directing the appellant to pay Bs. 3 a month for themaintenance ofan illegitimatechild. Duringthecourse of the
proceedings the applicant challenged the present appellant to takethe oath at a temple. The Magistrate appointed the oath to betaken at the Kussela temple at a certain time, the oath to beadministered by the Court Mudaliyar, with a further directionthat if the oath was- taken the application should be dismissed, andthat if not taken it should be allowed. The parties went to thetemple, but in consequence of the absence of the priest the oathcould not be administered at the time appointed, and the Magistratealtered his order by directing that the oath should be taken atanother temple. Before the oath was taken by the presentappellant, the applicant sought to withdraw the consent that she hadgiven and the challenge which the appellant was prepared to accept.The Magistrate permitted her to do so, and resumed the hearing ofthe ease* with the result that an order was made. Maintenance
( 158 )
proceedings are in the nature of civil proceedings, and, therefore,,section 9 of the Act of 1895 applies, and the provisions thereincontained as to the effect of the challenge to take an oath appliedin this case. It has been held in several cases, of which I will referto Muttusamy s. Muttukarpen1 and Palaniappa v. Sinnathamby*that a person vno has challenged his opponent to take an oathunder the section cannot withdraw from his* undertaking if theopponent consents to take the oath.
Under those circumstances I set aside the1 order of the Magistrate,and remit the case to him for the purpose of the oath, which theappellant had agreed to take, being administered to him at thetemple directed by the Magistrate.
ELIZA v. JOKINO