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GUN AH AMI v. ARNOLIS HAMI.
P. C., Galle, 16,926.
Maintenance—Ordinance No. 19 of 1889—Res judicata—Rejection of
evidence—Dismissal of former applications for maintenance—Admission that applicant is the wife of respondent.
The question of paternity once tried and determined in a prose-cution under the Ordinance No. 19 of 1889 could not be litigated asecond time ; but the refusal of an order for maintenance under theabove Ordinance against a husband for deserting his wife, on theground that it had not been proved that he had deserted, or thatthere was no proof that he had sufficient means, would not be a barto a subsequent .application in respect of a subsequent desertion,or in case the husband subsequently acquired means.
Where the Magistrate declined to receive in evidence for thedefence certain cases which had the eSect of res judicata, and whichhad been brought by the respondent against the appellant and beendismissed, and made an order against the appellant under section3 of the Ordinance because the appellant admitted the respondentto be his wife—Held, that the appellant ought to have an oppor-tunity of showing what was decided in the previous cases, whichmight or might not afford reason for refusing the present application.
HE appellant in this case was the respondent in a prosecution
under the Ordinance No. 19 of 1889, wherein the applicant,who is the wife of the respondent, applied for maintenance of herchild. The respondent did not deny that the applicant was hiswife, but by way of defence stated that she had previous to thismade three similar applications, which were dismissed, and whichhad the effect of res judicata.
The Police Magistrate refused to admit in evidence the previouscases, as the respondent admitted the applicant to be his wife, andmade an order against the respondent under section 3 of. theOrdinance.
The respondent appealed.
H. Jayawardena, for respondent, appellant.
1st July, 1895. Bonser, C.J.—
In this case the appellant was ordered to pay a monthly sumfor the maintenance of the respondent, who alleged that she washis wife. The order was made under section 3 of Ordinance No.19 of 1889. The appellant, by way of defence, stated that threeprevious applications of this kind by the respondent had beenmade and dismissed, but, as he appears to have admitted that therespondent was his wife, the Police Magistrate seems to havedeclined to receive evidence of the former eases, and made theorder in appeal.
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Now, it was argued to-day by the appellant’s counsel that therefusal of an order of this kind was an absolute bar to any subse-quent application, and he relied upon the case of Bankiri v.Hattena (reported in 1 C. L. R. 86) and the case of WijeyaeuriyaAraehige Podihamy v. Wijeyasuriya Arachige Marthelis Oooneratna(reported in 5 8. C. C. 231) as authorities for the proposition.Those cases were cases in which it had been found that thedefendant was not the father of the bastard for whose maintenancean order was sought, and it was held in both cases—and, if I maysay so, rightly held—that question of paternity having once beentried and determined could not be litigated a second time. ButI do not understand those cases as deciding that, if a Court refusedan order against a husband for deserting his wife on the groundthat it had not been proved that he had deserted, or that there wasno proof that he had sufficient means, that such a refusal wouldbe a bar to a subsequent application in respect of a subsequentdesertion, or in case the husband subsequently acquired means.In the present case, if any of these prior applications were refusedon the ground that the respondent was not the appellant’s wife, thatwould be conclusive. I think that the appellant ought to have anopportunity of showing what was decided in the previous cases,which may or may not afford reason that the present applicationshould be refused.
The case will go back in order that the appellant may have anopportunity of proving these previous orders.