( 351 )
Present: Akbar J.
KADIRAVAlii WADIVEL v. SANDANEM
44—P. C. Chile*., 17,62V
maintenance—Parties living together after an order for maintenance-
CanceUation of order—Application for enforcement of order.
A married woman obtained an order for maintenance againsther husband. Thereafter the parties came before Court and hadit recorded that they were living together. They separated againand the wife applied for the enforcement of the order of mainte-nance in her favour.
Held, that there had been no cancellation ui one previous orderand the Court was entitled to make an order for maintenanceaccordingly.
^^PPEAL from an order of the Police M-gioiraU: of Chilaw.
Wijewardena, for appellant.
Rajapahse, for respondent.
February 13, 1929. Akbab J.—
The appellant is the husband of the respondent and he appeals■from the order of the Police Magistrate dated December 1, 192S.In part 1 of this case the Court, on October 16, 1925, ordered theappellant to pay his wife the sum of Rs. 15 per month and therewas an appeal from this order, but the appeal was dismissed. Theappellant paid the maintenance for some time and then the partiescame before Court and it was entered of record on March 6, 1926,that the appellant and the respondent were living together happily.The Police Magistrate remarked that he was pleased to put it onrecord. Thereafter the parties broke off again, and the respondentapplied on October 27, 1928, for the enforcement of the order ofmaintenance, and in her petition mentioned the previous case.The appellant raised various legal objections, but the Police Magis-trate declined to enter into the questions of law and made orderfor the payment of Rs. 45, being the cost of maintenance for threemonths on the admission of the appellant that he had not main-tained his wife for three months under the original order in the case.It is now contended that because the parties lived together there isa cancellation of the order of October 16, 1925, that the PoliceMagistrate must treat this application as a new one, and that hehad no jurisdiction to make the order he did in this matter.
( 352 )
The point I have to decide i8 whether the Police Magistrate hadjurisdiction to make the order in this case, or, in other words,whether there was a cancellation of the old order by the partiesliving together. It will he seen that the Maintenance Ordinanceis self-contained, and once an order is made under section 3, the onlyway in which the order can be cancelled is indicated in section 6.Under that section the cancellation can only be granted upon proofthat the wife is living in adultery,»or that, without sufficient reasonshe refuses to live with her husband, or that they are living separately,by mutual consent. It will be seen from the facts that I havenarrated that there is no such cancellation of the original order.The fact that the Police Magistrate, on March 6, 1926, merelyrecorded that the parties were living together is not a cancellationof the order. It is, of pourse, open to the appellant to make suchan application now, but I do not see how the appellant can contend,in the absence of a cancellation of the original order of maintenance,that the Police Magistrate had no jurisdiction to order the paymentof the cost of maintenance on the uncancelled order.
I must, therefore, hold that the appellant has misconceived hisegal remedy and that the appeal must be dismissed with costs.
KADIRAVAIL WADIVEL v. SANDANAM