A. J. WEERARATNE, Appellant and W. CHANDRAWATHIE PERERA, Respondent

044-NLR-NLR-V-79-1-A.-J.-WEERARATNE-Appellant-and-W.-CHANDRAWATHIE-PERERA-Respondent.pdf


Weeraratne v. Per era
445
1977Present: Wijesundera, J. and Vythialingam, J.
A. J. WEERARATNE, Appellantand
W.CHANDRAWATHIE PERERA, RespondentS. C. 23/77-M.C. Panadura 54371
Maintenance—Application by wife for herself and child—Plea that therespondent was of unsound mind—Effect of such plea—Procedureto be followed—-Criminal Procedure Code, Chapter XXXIII—■Civil Procedure Code, Chapter XXV—Applicability—Medicalcertificates—Productionwithout calling medical officer—-
Admissibility—Administration of Justice Law, No. 44 of 1973,section 147
446
WTJESUNDERA, J.— Wee.raratnG v. Perera
The applicant sued the respondent (her husband) for maintenancefor herseif and her child. Counsel for the respondent submitted thatthe respondent was of unsound mind, produced medical certificatesand moved for an adjournment to lead evidence as to the mentalcondition of the respondent. The Magistrate rejected the medicalcertificates, refused the application to lead evidence and made ordergranting maintenance.
Held : (1) That where it is found that a respondent in an appli-cation for .maintenance is mentally ill steps should be taken toappoint a suitable person as guardian of the person and managerof the estate and the inquiry Thereafter proceeded with.
That however the provisions of Chapter XXXIII of the Crimi-nal Procedure Code had no application to these proceedings.
That, therefore, the proceedings in this case should be setaside and the Magistrate directed to inquire into the mental condi-tion of the respondent (the present appellant).
Per Vythialingam, J.— (i) Section 147 of the Administration ofJustice Law, No. 44 of 1973 applied to the medical certificates inquestion and prima facie they were admissible in evidence thoughthe medical officers were not called.
(ii) The provisions of Chapter XXV of the Civil Procedure Codewere also not applicable here but this did not mean that theseproceedings should be stayed merely because a party was of unsoundmind. All that is necessary is that he should be properly representedand his interests duly protected.
Cases referred to :
Esanda v. Suruthu, 6 C.W.R. 125.
Dingito v. Singho Appu, 3 C.WJt. 64.
Rasamany v. Subramaniam, 50 N.L.R. 84.
Anna Perera v. Emaliano Nonis, 12 N.L.R. 263.
Fernando v. Fernando, 23 N.LJl. 31.
Subaliya v. Kannangara, 4 N.L.R. 121.
Letchiman Pillai v. Kandiah, 30 N.L.R. 280.
Tenne v. Ekanayake, 63 N.L.R. 544.
Girigoris u. G. Don Jacolis, (.1914) 1 Cr. Appeal Reports 4.
Ukku v. Sidoris, 59 N.L.R. 90.
Seneviratne v. Podi Menika, 73 N.L.R. 91.
Public Prosecutor v. Yuvaraj, (1970) A.C. 913 ; (1970) 2 W.L.R. 226.
Appeal from a judgment of the Magistrate’s Court ofPanadura.
N. Devendra, for the respondent-appellant.Applicant-respondent absent and unrepresented.
Cur. adv. vult.
November 23, 1977. Wijesundera, J.
This appeal raises an interesting question of procedure. On the28th April, 1974, the respondent claimed maintenance from theappellant, her husband, for herself and her child. At the veryoutset when the claim was made and on a number of subsequentdates the Attorney appearing for the appellant stated to Courtthat the appellant was mentally unsound. On a number of datesto which the inquiry was postponed the respondent did not
WIJESUNDERA, J.-—Weeraratne v. Perera
447
appear. At one stage a warrant was issued and the appellantalter being produced by the Grama Sevaka was released on bail.On the next date the learned Magistrate inquired into the claim.The appellant was present and represented by the same Attorney.Only tne respondent gave evidence. The respondent stated thathe married the appellant on the 13th March 1972 and on the 22ndJanuary, 1973, the child was born to her. On the 13th December,1973, the appellant deserted her. The Attorney appearing for theappellant objected to the evidence that the parties were married.The cross examination proceeded on the basis that the validityof the marriage was being challenged for more than one reason.On behalf of the appellant no evidence was called, the positionof the Attorney for the appellant being that the appellant wasmentally unsound. He produced some medical certificates fromdoctors at the Mulleriyawa Mental Hospital and moved for adate to establish the fact that the appellant was mentally un-sound. The learned Magistrate refused the application. On thebasis that the income of the appellant was Rs. 300 per monththe learned Magistrate granted her maintenance :—Rs. 75 for her-self and Rs. 50 for the child, per month. It is not at all clear onthe evidence how the appellant derives this income.
If in fact the appellant was insane the order is fundamentallywrong, because there cannot be an inquiry where the partiesare a lunatic and a sane person. Hence once the question ofunsoundness of mind is raised it should be determined. Thereis no provision of law which prevents a Magistrate from deter-mining the question of unsoundness of mind of the appellantimmediately it is raised. In fact it is necessary to do so for a justdetermination of the claim. Therefore even at that late stagewhen the application to lead evidence was made there was aduty on the learned Magistrate to have inquired into it and theleast he should have done was to have granted the date appliedfor, for the appellant to lead the evidence. After that evidence thelearned Magistrate should have decided whether at that timethe appellant was mentally unsound. If it was found that theappellant was not of unsound mind then he could have proceededto make the further order regarding maintenance. For this reasonalone the order appealed from has to be set aside.
The learned Attorney for the appellant invited this Court toconsider what is to be done if the appellant is found to be insane.The Maintenance Ordinance makes no provision as to theprocedure to be adopted where a party respondent in main-tenance proceedings is of unsound mind. A claim for maintenanceis essentially of a civil nature, although certain procedure incriminal proceedings is adopted to ensure the speedy enforcement
448
WIJESUKDERA, J.— WeerarcUne v. Perera
and recovery of maintenance. In Esanda v. Suruthu, 6 C.W.R. 125,Ennis, A.C.J.* stated that a Magistrate has no jurisdiction inmaintenance actions to exercise the power under Chapter 33 ofthe Criminal Procedure Code. The judgment does not say whatexactly the order made by the Magistrate was. However theprovisions corresponding to Chapter 33 of the Criminal ProcedureCode are section 155 et seq. of the Administration of Justice Law.The procedure applicable to the recording of evidence for trialsin the Magistrate’s Court is made applicable by section 16 of theOrdinance to Maintenance Proceedings. The procedureapplicable is that for summary criminal trials. Sections 135 et seq.of the Administration of Justice Law relate to criminal trialsgenerally and under that heading are the sections 155 et seq.Section 156 (1) of the Administration of Justice Law empowersa Magistrate in the ordinary criminal case to inquire into thefact of unsoundness of mind and to postpone the proceedings ifthe accused is of unsound mind. Sub-section (4) empowers theMagistrate to resume the trial or start it de novo once the accusedrecovers. It cannot be said strictly that the procedure set downin these section relates to the recording of, evidence as contem-plated in section 16 of the Maintenance Ordinance. So then thesesections also cannot be applied.
Since under the Administration of Justice Law a Magistrate’sCourt is vested with a new Civil Jurisdiction the question willnaturally arise, as there is no direct provision, whether theinquiry could not have been proceeded with after appointing anext friend in terms of Chapter 35 of the Civil Procedure Code inoperation at that time.
In any other civil claim the Magistrate undoubtedly wouldhave had that power of appointing a next friend and proceedingwith the claim. Although there are special provisions regardingenforcement of an order, a claim for maintenance being essen-tially of a civil nature, I cannot see any thing in any law whichprohibits a Magistrate from appointing a next friend andproceeding with the claim. In this connection a case needsconsideration. In Dingito v. Singho Appu, 3 C.W.R. 64, Schneider
J.was of the view that a claim for maintenance from the legalrepresentative of a deceased person cannot be maintained. Sec.2 of the Maintenance Ordinance states :—“ If any person having
sufficient means neglects or refuses to maintain his wifethe
Magistrate may order such person….” The learned Judge madeemphasis on the word “ his ”. In the instant case the claim wasmade from the alleged father and husband and for purposes ofinquiry a next friend is being appointed. However even then ques-tions can arise when the order if obtained is sought to be enforced..
VYTHIALINGAM, J.— Weerarctfne v. Per era
449
But these are best considered at that stage. There are thentwo alternatives. One is to stop further proceedings if theappellant is found to be of unsound mind till such time as herecovers. The other is to proceed with the inquiry after appoint-ing a next friend. However I agree with Vythialingam, J. that theinquiry be proceeded with after the appointment of a next friend,in case the appellant is found to be of unsound mind.
For these reasons I set aside the proceedings before the Magis-trate and direct that the Magistrate inquire into the mental condi-tion of the appellant and that the appellant be permitted to placewhatever evidence his Attorney wishes to place in proof of themental condition of the appellant. If thereafter the Magistratefinds him of sound mind he can proceed to consider the claimsfor maintenance. If he is of unsound mind a next friend will beappointed by Court before he proceeds to consider the claim, ifthe respondent desires to pursue the claim. There will be no costsof this appeal.
Vythialingam, J.
In this case the respondent sued the appellant her husbandfor maintenance for herself and her child. The parties weremarried on 13th March, 1972 (PI) and the child was born on22nd January, 1973. She claimed that the appellant had desertedher on the 13th December, 1973 and had not maintained her orthe child thereafter. The application was resisted on the groundthat by reason of mental illness the appelant was without em-ployment and income. After the close of the respondent’s caseAttorney for the appellant produced medical certificates D2-D7and moved for a date to lead evidence as to the mental conditionof the appellant. The application for a date to lead such evidencewas refused and the Magistrate having rejected the medicalcertificates on the ground that they had not been proved orderedthe appellant to pay Rs. 125 per month as maintenance for therespondent and her child. The appellant has appealed againstthis order.
Section 147(1) of the Administration of Justice Law, No. 44of 1973, provides inter alia that any document purporting to bea report under the hand of a Government Medical Officer maybe used as evidence although such officer is not called as awitness. The proviso to this subsection sets out that nothingin the section shall affect the necessity of proving the identityof the person so examined and reported on. Apparently in theinstant case the identity of the appellant as the person examinedand reported on did not arise. The medical certificates D2 to D7all mirnort to be issued by Government Medical Officers attachedto Mulleriyawa Mental Hospital. Subsection 5 of section 147 sets
450
VVTHiALtrtGAM, J.—Weeraratne v. Perera
out that the court may presume that the signature on any docu-ment referred to in this section is genuine and that the personsigning it held the office he professed to hold at the time hesigned it. Prima facie therefore all these medical certificates wereadmissible in evidence although the medical officers, were notCalled as witnesses.
If the Magistrate either of his own motion or at the requestof either party was of the opinion that it was necessary or expedi-ent that one or more of the medical officers who issued thecertificates should be present to give evidence such officer couldunder the provisions of section 147 (6) be summoned andexamined as a witness at any stage of the proceedings. So thatthe Magistrate was quite wrong in rejecting the medical certifi-cates out of hand, and so summarily and in refusing to permitthe Attorney of the appellant to lead evidence to prove the mentalcondition of the appellant. For this reason alone the order madeby the Magistrate ought to be set aside and the case remittedfor further inquiry and to enable the Attorney for the appellantto call evidence in regard to the medical certificates if necessaryand to prove that the appellant is unable to work and earn onaccount of his mental condition.
But the case does raise a much more fundamental questionnamely as to what is to be done when one of the parties, moreparticularly the respondent in an application for maintenance,is mentally ill and as to what procedure should be followed insuch a case. A plea of insanity in such a case can raise twototally different questions with equally different consequences.Under the Maintenance Ordinance a person who neglects tomaintain his wife and children whether legitimate or illegitimatecan be ordered to pay maintenance only if he has “ sufficientmeans ” to do so. The words “ sufficient means ” means not onlyincome from all sources and properties but also income fromemployment and in the latter sense the words have to be given awide meaning and includes the capacity to earn money—Rasa-many v. Suhramaniam, 50 N.L.R. 84. Quite obviously a personwho has no other income and is incapacitated from earning byreason of mental illness is a person who has no “ sufficientmeans ”.
It was perhaps in this sense that the plea of insanity was takenin the instant case because the Attorney for the appellant did nottake up the plea at the very commencement of the inquiry butonly did so at the close of the case for the respondent. But inanother sense it may mean that the appellant was by reason ofhis insanity unable to understand the nature and effect of theproceedings being taken against him and therefore not in a
V STHlAlINGAM, J.— Weeraralne v. Perera
461
position to defend himself effectively. But I dm of the view thatin both cases the plea should be taken up at the very commence-ment of the inquiry because, if it is taken at the conclusion ofthe case for the respondent it may very well transpire that theappellant was so insane as not to be able to understand the natureand effect of the proceedings.
The question then is what should the Magistrate do when sucha plea is taken up. There is express provisions for such a casein Chapter XXXIII of the old Criminal Procedure Code andnow in sections 155 et seq. in the Administration of Justice Law.But it has been held in the case of Esanda v. Suruthu, 6 CeylonWeekly Reporter 125, that the Maintenance Ordinance gives theMagistrate no jurisdiction to exercise the powers under thatChapter (Chap. XXXIII), in maintenance actions. On the princi-ple of expressio unius exclusio alterius it was held in the caseof Anna Perera v. Emaliano Nonis, 12 N.L.R. 263, that only thesesections of the Criminal Procedure Code which are expresslyincorporated in the Maintenance Ordinance are applicable toproceedings under the Ordinance and the provisions cf section194 of the Criminal Procedure Code should not be applied tomaintenance proceedings.
The above decision was approved and followed by a Bench ofthree Judges in Fernando v. Fernando, 21 N.L.R. 31, which heldthat the provisions of section 338 of the Criminal Procedure Codewhich dealt inter alia with the time limit for the filing of appealsto the Supreme Court in criminal cases was not applicable toappeals in maintenance cases. Bertram, C.J. observed “ The casetherefore appear to be a casus omissus. There is no time limit tothe right of appeal. The matter is one which could only be dealtwith by the Legislature ”. Shortly after the decision in that casethe Legislature dealt with the matter by Act No. 13 of 1925 whichmade sections 338 to 352 (inclusive) of the Criminal ProcedureCode applicable to appeals in maintenance cases. We cannottherefore have recourse to the provisions of the Criminal Proce-dure Code for the solution of the problem before us.
462
VYTHIALING AM, J.—Weeraratne v. Per era
However proceedings under the Maintenance Ordinance arenot criminal but civil in their nature. The foundation of theMagistrate’s Court in matters of maintenance is the civil libertyalready existing under the Roman Dutch Law, the performanceof which can be compelled by civil action, and the MaintenanceOrdinance merely provides a simpler, speedier and less costlyremedy—Subahya v. Kannangara, 4 N.L.R. 121. But after thepassing of the Ordinance the common law right of action is nolonger available and relief can be claimed only under the Main-tenance Ordinance—Letchiman Pillai v. Kandiahj 30 N.L.R. 280.
But here again certain provisions only of the Civil ProcedureCode are made applicable to proceedings under the MaintenanceOrdinance and another Divisional Bench of the former SupremeCourt has held that no other provisions of the Civil ProcedureCode are applicable. In the case Tenne v. Ekanayake, 63 N.L.R.544, the question was whether section 9 of the Civil ProcedureCode could be availed of to determine the question of jurisdictionin maintenance cases and the Court held it could not. Basnayake,C. J. observed “ It has been held (Anna Perera v. EmalianoNonis) that it is not permissible to introduce provisions of theCriminal Procedure Code other than those expressly mentioned.By a parity of reasoning it would follow that it is not permissibleto introduce provisions of the Civil Procedure Code other thanthose made applicable by the Ordinance. ” So that it is notpermissible for us to apply the provisions of Chapter XXV ofthe Civil Procedure Code which makes provisions in the caseof actions by and against minors and persons under other dis-qualification including persons of unsound mind (section 501).
It is true that the Maintenance Ordinance made a common lawright into a statutory right and made special provision forenforcing such a right. But the fact that there is no provisionin it in regard to any particular matter does not necessarilymean that a party is without a remedy for enforcing such a right.Civil actions or proceedings for the establishment of a rightor the enforcement of an obligation are not stayed merelybecause a party to a proceeding is of unsound mind. All that
V YTHIALTN GAM, J.—Weeraratne v. Per era
453
is necessary is that he should be properly represented and hisinterests duly protected. This is done by the appointment of aguardian of the person and manager of the estate.
Where the wife is of unsound mind it would not be necessaryfor a guardian to be appointed unless the application was madeby her personally for any person can make the application formaintenance on her behalf. Thus in the case of A. Girigoris v.G. Don Jacolis, (1914) 1 Cr. Appeal Reports 4, it was held that abrother was entitled to make the application under the Ordinanceon behalf of his insane sister who was in custody. De Sampayo,J. observed “The Ordinance does not provide for any particularperson to make an application but it provides for a PoliceMagistrate to make an order for maintenance upon proof that thehusband or father as the case may be has been negligent inthat respect. However, I think that the brother, in whose custodyand care the defendant’s wife is, is quite entitled to comeforward and apply to the Court to make an order against thedefendant. ’’
In the case of Ukku v. Sidoris, 59 N.L.R. 90, which was apartition action the 1st defendant was a lunatic and after certainpreliminary steps had been taken in the case the proctor forthe plaintiffs filed papers seeking to appoint the 9th defendantas the manager of the 1st defendant’s estate and although noticeof this application was issued on the 9th defendant no furthersteps were taken in that regard. The action proceeded to trialand interlocutory decree was entered. Thereafter the 9thdefendant was appointed as the manager of the estate and hemade an application to file a statement of claim on behalf ofthe 1st defendant. The trial judge refused the application onthe ground that he had no power to allow the application. Inappeal it was held that the interlocutory decree was not regularlyentered and that it was not binding on the 1st defendant asat that time he was not properly represented in terms of section480 read with section 501 of the Civil Procedure Code. Theinterlocutory decree was accordingly set aside and it was ordered
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V YTHI LINGAM, J.—Weeraratne v. Perert
that the 1st defendant should be permitted an opportunity tofile his statement of claim, as the manager had by then beenappointed, and that trial should be held in due course thereafter.
If then every other civil right or obligation can be enforcedagainst a person of unsound mind after he is properly repre-sented why should the civil obligation to pay maintenance alonenot be similarly enforceable merely because he is of unsoundmind though possessed of sufficient means ? It will be a denialof justice and contrary to all principles of natural justice todeny a mother and/or child the right to maintenance in such acase simply because the Maintenance Ordinance makes noprovision as to what should be done in such a case.
There is no provision in the Maintenance Ordinance as to whatis to happen when an application is dismissed for want of appear-ance of the appellant on one of the due dates. In the case ofAnna Perera v. Emaliano Nonis (supra) it was held that insuch a case where there has been no adjudication on the meritsthe applicant may make a fresh application provided that thetime limit prescribed in the Ordinance has not expired. Butwhat is to happen if owing to the protracted nature of the firstproceedings the prescribed time limit has expired by the timethe second application is made ?
Such n situation arose in Seneviratne v. Podi Menike. 73 N.L.R.91. The application was in respect of an illegitimate child whosepaternity was denied by the respondent. At the inquiry theapplicant was subjected to a lengthy cross-examination and theinquiry was fixed for 26.8.1967 de novo as the Magistrate wasgoing on transfer. On that date the applicant was absent owingto illness and the application was dismissed. The applicant movedto reopen the proceedings and after inquiry the Magistratevacated his order dismissing the application and allowed theapplicant to reopen the proceedings. The respondent appealedfrom that order and the Supreme Court held that the Magistratewas right in the circumstances in vacating the earlier orderand reopening proceedings.
VYTHIAXXNGAM, J.—Weeraratnt v. Perera
455
In that case the prescriptive period being one year from thebirth of the child the applicant would have been’shut out frompursuing a fresh application. Wijayatilake, J. pointed out inthe course of his judgment “ There is no provision in the Mainte-nance Ordinance to meet a case such as this. In my view inthe absence of any statutory provision it is incumbent on thiscourt to make an order which will promote the ends of justice….As Mr. Kanagaratnam learned Counsel for the applicant, sub-mitted if this applicant is shut out from showing cause of herabsence from Court, this Court will be acting contrary to allprinciples of Natural Justice. I am inclined to agree. ”
I am therefore of the view that it would be unjust andinequitable to stay all proceedings in the case merely becausethe appellant is of unsound mind and thus deprive the respondentand her child of the right to obtain maintenance from theappellant if he is possessed of sufficient means. As their Lordshipsof the Privy Council stated in an entirely different context in thecase of the Public Prosecutor v. Yuvaraj, (1970) A.C. 913. “Butno enactment can be fully comprehensive. It takes its place aspart of the general corpus of the law. It is intended to be cons-trued by lawyers and upon matters about which it is silent orfails to be explicit it is to be presumed that it was not theintention of the legislature to depart from well establishedprinciples of law”. Applying these principles I would set asideall proceedings in the case from the date on which the appellantfirst appeared in answer to the summons and direct theMagistrate to take the following steps : —
The Magistrate should hold a preliminary inquiry in
order to satisfy himself as to whether the appellant isof unsound mind or not.
If he is satisfied that the appellant is not of unsound
mind he should proceed with the inquiry into theapplication for maintenance and make an appropriateorder.
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VYTELLAUNGAM, J.—Wteraraine v. Perera
If he is satisfied that the appellant is of unsound mind
he Should take steps to appoint a suitable person,as guardian of the person and manager of the estateof the appellant and thereafter proceed with theinquiry into the application for maintenance.
If after inquiry he finds that the respondent and her son
are not entitled to any maintenance or that thoughentitled to maintenance they are not entitled to theorder- for maintenance because the appellant is notpossessed of other means and that by reason of hisinsanity is incapacitated from working and earningan income he will refuse the application formaintenance.
If however he finds that the appellant though of unsound
mind is possessed of sufficientothermeanshe will
make an appropriate order formaintenance.It may
also be that though the appellant is of unsound mindand not possessed of means yet his insanity is suchthat he is not incapacitated from working and earningan income. In which case also he would make anappropriate order for maintenance.
All proceedings from and including those on 14.5.74 arequashedand the case is remitted to thelowerCourt for pro-ceedingsto be taken as directed in thisorder.Therewill be
no costs of appeal.
Appeal allowed.