053-NLR-NLR-V-75-A.-J.-ABDEEN-Appellant-and-A.-A.-A.-SITHY-ALAVIA-Respondent.pdf
SIRIMANE, J.—Abdeen v. Alavia
313
[In the Coubt of Appeal of Ceylon] .
1972 Present: Fernando, P., Slrimane, J., Samerawlckrame, J.,and Siva Supramanlara, J.
A. J. ABDEEN, Appellant, arid A. A. A. SITHY ALAVIA, RespondentAppeal No. 5 op 1972 (P. C. Appeal No. 37 of 1970)
8. C. 825168, with Application 295—M. C. Trincomalee, 5608
Muslim Marriages and Divorce Act {Cap. 115)—Sections 3, Gl, 6G—Sums due asmaintenance awarded to a wife and child—Quasi may issue a single certificateto Magistrate—Period of imprisonment to which defaulter may be sentenced—Plea of prescription not available—Prescription Ordinance {Cap. 68), s. 10.
The appellant was sentenced by a Magistrate to imprisonment for seventymonths for defaulting in payment of maintenance for his wife and child asordered by a Quazi.
Held, that a single certificate may be issued by the Quazi to tho Magistrateunder section 64 of tho Muslim Marriages and Divorce Act for the recovery ofall arrears of maintenance. In such a case Section 60 of tho Act empowers theMagistrate to sentence tho defaulter to a term of one month’s imprisonmentin respect of the whole or any part of every monthly sum remaining unpaid.
Held further, that Section 10 of tho Prescription Ordinance is not applicableto a claim for the recovery of arrears of maintenance. Recovery of maintenancealready ordered by the Quazi is a stop in execution proceedings and has nothingut all to do with “ a cause of action .
.AlPPEAL from a judgment of the Supreme Court.
C. Chellappah, for the appellant.
Respondent absent and unrepresented.
Cur. adv. vuU.
May 16, 1972. Sibimane, J.—
This is an appeal from a judgment of tho Supreme Court which affirmedan order made by the Magistrate of Trincomalee sentencing the appellantto seventy months imprisonment for defaulting in payment of maintenancefor his wife and child as ordered by the Quazi of a district in that area.
It is admitted that the appellant was ordered to pay Rs. 75 per monthas maintenance for his wife and Rs. 40 per month as maintenance for thechild, and that at the time the Quazi issued a certificate to the Magistratefor the recovery of maintenance from the appellant a sum ofRs. 8,050was due from him.
Leave to appeal has been granted by the Privy Council and the casewas argued in this Court under the provisions of Section 19 of the Courtof Appeal'Act, No. 44 of 1971.
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SlAIMANE, «j4W{en v» AXavio,
At. the heaving before us Mr. Advocate Chellappah for the appellantconfined himself to two grounds on which he sought relief:—
(а)he challenged the validity of the certificate issued to the Magistrate
by the Quazi for the recovery of the sum due;
(б)he submitted that the respondent’s claim was barred by Section 10
of the Prescription Ordinance.
In regard to (a) a single certificate was issued by the Quazi to theMagistrate under Section Of of the Muslim Marriages and Divorce Act(Cap. 115) for the recovery of Rs. 8.050.
Mr. Chellappah submitted that the Quazi was obliged to issue a separatecertificate for every single month in which a default was made. We arequite unable to accept this submission. Sub-section (2) of Section 64enacts that the application by the Quazi “ should be supported by a
certificate under his hand stating the amount of the sum due
That obviously means the sum due at the time the certificate is sent tothe Magistrate.
Section 3 sheds more light on this point when it provides that thesum due " may be recovered as a fine notwithstanding that such sumexr ds the anumrit of the maximum fine which the Magistrate may in his
ordinary jurisdiction impose ”, Mr. Chellappah further
submitted that the Quazi having certified the single.sum of Rs. 8,050as due, the Magistrate could inflict only a term of one month’simprisonment.
One has only to look at Section 66 of the Act to see the fallacy in thisargument. The order made by the Quazi- in this case was to make thepayment of Rs. 115 per month. Section <;d empowers the Magistrateto sentence the defaulter in respect of the whole or any part of anymonthly mm remaining unpaid, for a period not exceeding one month.
We find the second point raised by Mi*. Chellappah equally untenable.He drew our attention to Section 10 of the Prescription Ordinance(Cap. 68) which provides that ” no action shall be maintainable in respectof any' cause of action not hereinbefore expressly provided for or expressly
exempted” unless the same shall be commenced within three
years from the time when such cause of action shall have accrued. Theshort answer to this argument is that the recovery' of maintenancealready ordered by the Quazi is a step in execution proceedings and hasnothing at all to do with " a cause of action ”.
The respondent was not represented before us.
The appeal is dismissed withor' costs.
Appeal dismie8ed.