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Present: Dalton J.
HERFT u. HERFT.776—P. C. Kandy, 23,913.
A wife is entitled to apply for an order of maintenance inthe Court within whose jurisdiction she is living in a deserted condition,although that might not ho the place where she Was originallydeserted.
^ PPEAL from .an order of the Police Magistrate o;£ Kandy.
Garvin, for appellant.
January 18, 1928. Daltox J.—
The appellant sought to obtain from the respondent, her husband,maintenance for herself and her two children aged 16 months and4 months, respectively, he having failed to maintain them.Respondent admitted the marriage and paternity. The Magis-trate, however, held he had no jurisdiction, inasmuch as applicantadmitted she lived at Anuradhapura with respondent, and had lefthim whilst they lived there. The reason alleged, it is stated, iscruelty on his part, for which reason she left him and went to Kandy,where she is now living. In coming to this conclusion theMagistrate says he follows the principle set out by Wendt J. inFernando v. Cassim.1
There is no doubt that now her actual place of residence is Kandy,Whereas the respondent resides at Anuradhapura. On the basislaid down in In re Shaik Fakrudin2 referred to by Wendt J., theMagistrate has apparently come to the conclusion that the husbandwas entitled to have his wife living with him and the Court regardedhis offence or default (if any) as being committed at the place ofhis residence. It remains of course to be decided which of theparties was responsible for the separation, but, if the respondent wasresponsible, it is held that the wrongful act has been committed atAnuradhapura and not at Kandy.
On the question of default or failure to maintain, Wendt* J. cameto the conclusion that such a default was an offence within themeaning of the definition contained in section 4 of the IndianCriminal Procedure Code which has been adopted in section 8 of»11 N. L. R. 329.1 9 Bombay 49.
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our Code, and therefore the provisions of the Code as to jurisdictionare applicable in such a case. The Indian Court, in considering damton J.this question of jurisdiction, in the case referred to, recites theEnglish statute law since the time of Queen Elizabeth, but it is to be Herftnoced that definite provision is made in that law as to the justiceswho have jurisdiction. It is suggested that the state of the law inEngland must have been familiar to the Indian legislature when theCode of Criminal Procedure was passed. It would be in my opinionsomewhat unsafe to found any argument upon such a suggestion,but even admitting it may be correct, it is clearly the local law whichhas to be applied here. The Maintenance Ordinance is silent uponthe point, but I am inclined to agree with Wendt J. in his con-clusion as regards the default to maintain being an offence withinsection 3 . of the Criminal Procedure Code. Desertion, however, hasbeen described as a continuing offence; it is a continuing courseof conduct. Under 58 & 59 Viet. c. 39 (Summary JurisdictionMarried Women Act, 1895) which specifically provides that thecomplaint must be made where “ the cause of the complaint haswholly or partially arisen,” it has been held that a wife is entitledto apply for an order for maintenance and for other remedies underthat statute in that Court within whose jurisdiction she was livingin a deserted condition, although that might not be the place whereshe was originally deserted. (Brown v. Brown.1) Accepting there-fore the application of section 3 of the Criminal Procedure Codeto a default of the nature alleged by the appjlicant against therespondent, and having regard to the fact that this alleged defaultis a continuing default, and it is continued in Kandy where theapplicant is now residing, the Magistrate was not correct in hisconclusion that he had no jurisdiction. The appeal must thereforebe allowed, and the order of the Magistrate set aside and the casesent back to him for adjudication.
Appeal allowed. *
* 79 L. T. 102.
HERFT v. HERFT