017-NLR-NLR-V-61-A.-C.-ABDUL-GAFFOOR-Appellant-and-MRS.-JOAN-CUTTULAN-Respondent.pdf
88
Abdul Gaffoor v. Joan Cuttilan
1956
Present: H. N. G. Fernando, J.
A. C. ABDUL GAFFOOR, Appellant, and MRS. JOAN CUTTDLAjST,
Respondent
S. C. 251—M. C. Kandy, 36,739
Muslim Law—Maintenance—Concurrent jurisdiction of the Kathi Court and theMagistrate's Court.
The Kathi Court and the Magistrate’s Court have concurrent jurisdiction tohear and determine applications for maintenance and it is not open to a partywho has once invoked and submitted to the jurisdiction of the Kathi Court towithdraw from those proceedings and to seek to agitate the same matter in theMagistrate’s Court.
A
/iPPEAL from a judgment of the Magistrate's Court, Kandy.
M. M. Kumaralculasingham, for the defendant-appellant.
No appearance for the respondent.
Cur. adv. vult.
H. N. G. FERNANDO, J.—Adbtd Gajfoor v. Joan CiUtilan
89
April 9, 1956. H. N. G. Fernando, J.—
This appeal which, was dismissed for want of appearance by ChiefJustice Rose on 1st June, 1955, was subsequently relisted upon an ordermade by His Lordship.
The appellant has been ordered by the Magistrate of Handy to pay asum of Rs. 30 monthly to the applicant for her maintenance and anothersum of Rs. 30 for the maintenance of a child horn to her by theappellant.
The proceedings for maintenance were instituted in the Magistrate’sCourt on 8th June, 1954, and the order was made by the Magistrate on31st January, 1955.
It would appear that the parties were divorced by an order of the Kathifor the Nawalapitiya Judicial Division made on 10th August, 1952, andthe final Talaq was duly registered by the Assistant Provincial Registrarof Marriages for the distriot of Kandy. Subsequently on 13th November,1953 the applicant applied to the Kathi Court of Kandy in case No. 2,182of that Court for maintenance for herself and the child. After noticeto the respondent and the fixing of inquiry dates, proceedings were takenupon the application and the evidence of the applicant was recorded andshe was cross-examined on 11th April, 1954, and the inquiry was thenpostponed for the 20th June, 1954. On the 10th of June—two daysafter the filing of the application in the Magistrate’s Court, Kandy—-theapplicant filed a motion in the Kathi Court “ to stay proceedings pendingthe Magistrate’s Court ease No. 36,739 ” which latter is the case fromwhich there is now an appeal. On the 20th June in the Kathi Court, theproctor for the present appellant urged that the proceedings of the KathiCourt should continue but the applicant moved to withdraw the case.Thereupon the Kathi Court called upon the applicant to proceed with thecase which she declined to do.
The Kathi Court and the Magistrate’s Court have concurrent jurisdic-tion to hear and determine applications for maintenance and in my opinionit is not open to a party who has once invoked and submitted to the juris-diction of the Kathi Court to withdraw from those proceedings and toseek to agitate the same matter in the Magistrate’s Court. The objectionthat the Magistrate had no jurisdiction by reason that proceedings werealready pending in the Kathi Court was taken before the Magistrate andshould in my opinion have been upheld by the Magistrate. I would there-fore hold that the Magistrate did not have jurisdiction on 10th June,1954, to entertain the application which was made to him on thatday.
I would therefore allow the appeal with costs and set aside the ordertinder appeal.
-O. Lf i/ow'p