( 129 )
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.
July 1.
Bonskb, C.J.