48WEBRASOO.RT.YA, 3.—Ghmadaaav. PemauaiMs
Present: Weerasooriya, 3.
GUN AD AS A, Appellant, and PEMAWATHIE, Respondent
8. C. 247—M. C. Kandy, 13,334
Maintenance—Commencement of inquiry—Procedure relating to examination ofapplicant—Maintenance Ordinance (Cap. 76), es. 13, 14, 16—CriminalProcedure Code, as. 298, 299.
Section 16 of the Maintenance Ordinance applies to the recording of anexamination under section 14. Accordingly, the evidence that is recorded incompliance with section 14 of tho Maintenance Ordinance prior to issue ofsummons need not be read over to the applicant in terms of section 299 of theCriminal Procedure Code. Nor need the other provisions of section 299 ofthe Criminal Procedure Code be complied with.
Appeal from a judgment of the Magistrate’s Court, Kandy.
M.M. Kumar afculosing ham, with N. Senanayake, for Defendant-Appellant.
George Gandappa, for Applicant-Respondent.
Our. adv. vult.
September 5, 1961. Weekasooriya, J.—
This is an appeal by the defendant against an order condemning himto pay a sum of Rs. 17/50 a month to the applicant-respondent as main-tenance for the latter’s illegitimate child, the father of which was heldto be the appellant. The appeal was pressed on the facts as well as onthe law. I see no reason, however, to interfere with the findings of theMagistrate on the facts as they are supported by the evidence.
The proceedings in this case commenced with an application made bythe respondent in terms of section 13 of the Maintenance Ordinance(Cap. 76) for an order of maintenance in respect of the child. Section 14provides that on an application for maintenance being made under section13, the Magistrate shall commence the inquiry by examining the applicanton oath or affirmation and that such examination shall be “ dulyrecorded ”. The Magistrate, purporting to comply with section 14,examined the respondeat on affirmation and recorded her evidence.On the law Mr. Kumarakulaaingham, who appeared for the appellant,submitted that the evidence as recorded should also have been read overto the respondent in the manner prescribed by section 299 of the CriminalProcedure Code, and the other requirements of that section complied within regard to such evidence ; and that as these additional steps were nottaken, the examination of the respondent was not “ duly recorded ” interms of section 14 of the Maintenance Ordinance and the order formaintenance was, therefore, null raid void.
WEERASOORIYA, J.—Gunadasa v. Pemawathie
Sectdon 16 of the Maintenance Ordinance, in so far as is material to thequestion under consideration, provides as follows : “ All evidence takenby the Magistrate under this Ordinance shall be taken in the presenceof the defendant, or, when his personal attendance is not required by the—Magistrate, in the presence of his pleader, and shall be recorded in themanner prescribed for trials in the Magistrate’s Court. ”
It is to be noted that one of the requirements of section 16 as quotedabove is that the evidence shall be taken in the manner prescribed fortrials in the Magistrate’s Court. But Mr. Kumarakulasingham contendedthat section 16 does not apply to the recording of an examination undersection 14, which is in the nature of a preliminary inquiry for the purposeof deciding whether process should issue or not. In regard to the re-quirement in section 14 that the examination shall be “ duly recorded ”,he contended that this implied an examination recorded in the mannerappropriate to the recording of evidence at an inquiry held under theCriminal Procedure Code, and that, therefore, section 299 of that Code is,by analogy, applicable to the recording of such examination.
In my opinion, the opening words of section 16: “All evidence takenby a Magistrate under this Ordinance. … ” make it clear that the
section applies to an examination recorded under section 14 as well.Mr. Kumarakulasingham, relying on the subsequent words of section 16 :“ shall be taken in the presence of the defendant, or, when hi3 personalattendance is not required by the Magistrate, in the presence of his pleader
. .. ”, suggested that the application of section 16 should be limited
to the taking of evidence after the defendant has appeared in answerto the summons. I see no reason, however, for doing so. I would holdthat the section applies to proceedings under section 14.
As regards Mr. Kumarakulasingham’s contention that section 14 attractsthe provisions of section 299 of the Criminal Procedure Code, an argumenton similar lines appears to have been rejected by a bench of two Judgesin Anna Perera v. Emiliano Nonis1. Wood Renton, J. (as he then was)expressed the view there that sections 15, 16 and 17 of the MaintenanceOrdinance “ expressly point out the provisions of the Criminal ProcedureCode which are to be applied in maintenance proceedings ” and that,except in a case where the Ordinance is unworkable without recourse tosuch an expedient, it would not be right to incorporate other provisionsof that Code by way of analogy. With that view I respectfully agree.
Being of the opinion that section 16 of the Maintenance Ordinanceapplies to the recording of an examination under section 14, T find nodifficulty in construing the words in section 14 that the examination shallbe “ duly recorded ”, as meaning that the examination shall be recordedin maimer provided in section 16.
1 (7908) 12 N. L. R. 263.
4SWESRASOOBIYA, '5.~'&unadaaa u. PmnatMihia
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la the case of Rupasinghe v. Somauaihie1, which was referred to abench of two Judges in view of the conflicting judgments in Namaeivyamv. Saramatky * and Sebae&m JHtiai v. Magdalene *, the question that
arose was whether the ezaminatkn of an applicant on o&th or affirmationand the recording of such examination in accordance with the require-ments of section 14 of the Maintenance Ordinance are conditions precedentto the issue of summons, and whether any proceedings taken withoutthose requirements being observed are thereby rendered invalid. MyLord the Cbief Justice who delivered the judgment in that case (K. D. deSilva, J. agreeing) decided the question in the affirmative. He observedfurther, that the deposition of an applicant who is examined under section14 " must be recorded as prescribed in section 298 of the Criminal Proce-dure Code and read over to the witness as required by section 299 (1)of that Code and the other requirements of that section must be compliedwith It seems to me that the first part of the above dictum is basedon an acceptance of the view that section 16 of the Maintenance Ordinanceapplies to the recording of an examination under section 14. Section 16requires that all evidence shall be recorded in the manner prescribed fortrials in the Magistrate’s Court. Section 298 of the Criminal ProcedureCode prescribes the procedure for recording evidence at inquiries and trialsin District Courts and Magistrate’s Courts, while section 299 expresslyrefers to inquiries. If section 16 applies to the recording of an exami-nation under section 14, Mr. Kumarakulasingham was prepared to grantthat there appears to be no reason for insisting on compliance with section299 in regard to such examination. If I may say so with all respect, thesecond part of the dictum of my Lord the Chief Justice would appear tohave been expressed per incuriam.
In the present case there was substantial compliance by the Magistratewith the provisions of section 298 of the Criminal Procedure Code inrecording the examination of the respondent under section 14 of theMaintenance Ordinance.
The appeal is, therefore, dismissed with costs.
1 [1959) 61 N. L, R. 457.* [1949) 50 N. L. R. 333.
1 [1949) SO N. L. R. 494.
GUNADASA, Appellant, and PEMAWATHIE, Respondent