Shanmuganathan v. Namagal
Present: Tennekoon C.J., Ismail, J. and Gunasekera, J.
A. SHANMUGANATHAN, Appellant and NAMAGAL,Respondent
S. C. 441/71, D.C. Jaffna 896/D.
Action for divorce—Malicious desertion by defendant (wife)—■Permanentalimony—Settlement—Civil Procedure Code Sections 408, 218 (h),596, 624.
Held, An order to pay permanent alimony by consent containedin the decree in a matrimonial action is referable to section 408 ofthe Civil Procedure Code and is enforceable as an order to paymoney in terms of section 217A of the Civil Procedure Code.Accordingly the provisions of section 218(h) of the Civil Procedure* Code are applicable to the enforcement of such an order, based asit is on an agreement under section 408 of the Civil ProcedureCode.
Nadarasa Vs. Navamany—64 N.L.R. 232 not followed.
De Jonh Vs. De Jonh—72 N.L.R. 140 andLouis Vs. Emmanuel—73 N.L.R. 42 distinguished.
A. PPEAL. from a judgment of the District Court of Jaffna.
P. Somatilakam for the Plaintiff-Appellant.
C. Thiagalingam with C. Chellappah, for the 1st defendant-respondent.
Cur. adv. vult.
March 31, 1975. Gunasekera^ J.—
The Plaintiff-Appellant sued his wife the 1st Defendant-Respondent for divorce on the ground of malicious desertion byher and also her adultery with the 2nd Defendant ; he also ask-ed for a declaration that he was not the father of the fourchildren born to her. The wife denied the Plaintiff’s allegationsand asked for a judicial separation on the ground of his habitualcruelty.
At the trial by way of a settlement the Plaintiff withdrew theallegation of adultery and admitted paternity of the children,and the second Defendant was discharged from the case. ThePlaintiff gave evidence of malicious desertion by the wife andfurther said:
GUNASEKERA. JShanmuganathan v. Namagal
“ I am prepared to pay permanent alimony at Rs. 90 tothe 1st Defendant and Rs. 125 as maintenance for the fourchildren as follows :
Anthumanathan Rs. 40.
Nirmalan Rs. 40Arulnithi Rs. 22.50.
Vimalan Rs. 22.50.
I am also willing to allow the custody of the children tobe given to the 1st Defendant ".
Decree Nisi was thereafter entered for the dissolution of themarriage on the ground of malicious desertion by the Defendant.
The Decree also said :
“ And it is further ordered and decreed of consent thatthe Plaintiff do pay to the 1st Defendant alimony at the rateof Rs. 90 per month and maintenance as follows :
On 1.3.1965 before Decree Nisi was made absolute the Defen-dant filed an Application to court stating :
“ The Plaintiff has not (been) paid alimony and main-tenance for the 1st Defendant’s children so far. The 1st De-fendant now believes that the Plaintiff is not serious abouthis offer of alimony and maintenance to the 1st Defendantand that the 1st Defendant has no way of recovering thealimony, if the Plaintiff fails to pay the alimony as thePlaintiff’s salary cannot be seized as he in the service ofthe Government ”,
and she prayed “ that the Plaintiff be directed by Court in termsof Section 615 of the Civil Procedure Code to secure to the 1stDefendant the payment of alimony in such gross sum of moneyas the Court deems reasonable in the circumstances and asaverred in the plaint, before the Decree is made absolute ”.
The Plaintiff opposed this application and even moved theCourt to delete from the Decree the order to pay alimony ahdmaintenance,
“ as the Decree was entered and obtained by the Plaintiff-Petitioner and no Decree of alimony would have been enter-ed in favour of the 1st Defendant ”,
He relied on the decision in Ebert vs. Ebert (1939) 40 N. L. R. 388.The learned District Judge in his order cf 9.1165 held that thePlaintiff—
GT3NASERERA, J.— Shanmuganatkan v. Namagal
“ cannot now resile from his agreement and he must paythe alimony as agreed upon by him ” ;
but he also held that the wife was—
“ not entitled to ask that a notarial agreement should beexecuted by the Plaintiff to secure the alimony becauseapart from consent, the Plaintiff having obtained judgmentagainst her the 1st Defendant is not entitled to claim anybenefits under Section 615 of the Civil Procedure Code
The Decree for divorce was accordingly made absolute. Anappeal by the wife against this order to this Court was dismissed. with costs.
Thereafter, six years later, the first Defendant obtained a writto recover the sum of Rs. 6,940.50 as accumulated permanentalimony and maintenance and caused the Plaintiff’s salary to beseized on 16.3.71.
The Plaintiff filed this application for a declaration that as hewas “ a public officer and a servant of the Government of Ceylonhis salary and allowances are exempt from seizure ”. He alsostated in his application that the two elder children above re-ferred to had since died and that an application for maintenancefor the remaining two children in case, M.C., Kayts No. 3741 filedduring the pendency of the earlier appeal was settled on 30.3.67" on the footing that the 1st Defendant-Respondent will notclaim alimony for herself, and that the Plaintiff-Petitioner agreedto pay Rs. 150 per month for the four children. The 1st Defen-dant-Respondent agreed to withdraw the appeal. Later the sumwas enhanced to Rs. 170 on an application by the 1st Respondent.”He also averred that after the Decree was made absolute in thiscase he had married again and that now he has to maintain hispresent wife and two children of that marriage as well. •
• At the inquiry into this application Plaintiff relied on the deci-sion in De Jonk vs. Ds Jonk (1964) 72 NLR 140 whilst the firstRespondent relied on the decision in A. R. F. Louis vs. AgnesEmmanuel (1970) 73 NLR 42 and the iearned District Judge pre-ferred to follow the latter decision, but as the Defendant hadwaited for six years to apply for a -writ and as the Plaintiff waspaying Rs. 170 per month maintenance for the two survivingchildren in the case, M. C., Kayts No. 3721, and as the Plaintiffhad married again and was having two children by that* marriage, he made or-’er that only 1/3 of the consolidated salaryof the Plaintiff should be available for seizure monthly.
GUNASEKERA, J.—Shanmuganathan v. Namagal
The Plaintiff has appealed against this order. Mr. Soma-tilakam relied on Section 624 of the Civil Procedure Code, andsubmitted that however such a matrimonial action may differfrom ordinary civil actions in certain respects, Decrees andOrders made under Chapter XL.II of the Civil Proedure Codehad to be enforced “in like manner as the Decrees and Ordersof the Court made in the exercise of its original “ Civil Jurisdic-tion ”. He also referred to the decision in Postmaster-General,Bombay vs. Chimal, A. I. R. (1941) Bombay, 389, and Subrama-niam vs. Satyandhan, A. I. R. (1942) Madras, 391, in support of-the submission that the exemption from seizure under Section218 (h) is based on public policy, “ as the salary (of his office)is given for the purposes of upholding its dignity and the perfor-mance of its duties ” ; and that this paramount interest *of the •State made no exception whatsoever even in regard to theclaims of a public servant’s wife and children.
Mr. Thiagalingam for the Respondent contended that Section596 and 624 of the Civil Procedure Code made applicable tomatrimonial actions under Chapter XLII, only the proceduralprovisions relating to ordinary civil actions and that Section218 (h) contains substantive law and not procedure and thattherefore that Section did not apply to enforcement of ordersmade under that Chapter. He submitted, therefore, that thoughalimony orders in matrimonial actions had to be recovered asorders to pay money within the meaning of head A of Section217, Section 218 (h) will not be applicable to such recoveries.
Section 218 (h) is clearly not substantive law, because it isonly a part of the proviso to Section 218, which is beyond ques-tion procedural law being the “ method of procedure to befollowed ” for recovery of any order “ to pay money ” (Section217). Besides though Section 596, relating only to trial procedurein Matrhnonial actions does refer to the ‘ procedure thereinafterset out with respect to ordinary civil actions ”, Section 624 re-lating to the enforcement of orders in such actions, says different-ly, that it should be done “ in like manner as the decrees andorders of the Court made in the exercise of its original Civiljurisdiction are enforced
However, this submission of Mr. Thiagalingam or even thereasoning in the case of A. Ti. F. Louis vs. Agnes Emmanuelneed not be considered in the instant case, because the ordersought to be enforced by seizure of the Plaintiff’s salary thoughmade in the course of a Matrimonial action, was not one madeunder Section 615 of the Code, and so, is not an Alimony ordermade under the provisions of Chapter XLn. The Plaintiff’s,liability arose in this case as a result of a settlement in a divorce
GUNASEKERA, J.—Shanmuganathan v. Namagal."2l
granted to the husband and for this reason, the Plaintiff has infact, asked once again in his petition of Appeal that the order topay alimony by consent be deleted from the Decree for divorce.This claim was not pursued at the argument but such an applica-tion was allowed by this Court in the case of Nadarasa vs.Navamany (1962) 64 NLR 232 which to my mind has been decidedwrongly because the Court was not referred to the provisions ofSection 408 of the Code, which is clearly made applicable toMatrimonial actions by Section 596 in so far as the provisions ofthat Section are not in conflict with anything contained inChapter XLII of the Civil Procedure Code. In terms of Section408 any “ lawful agreement, or compromise ” must be embodiedin the Decree in the case and is final between the parties ; andaccordingly, the order to pay alimony by consent contained inthe decree in this case is properly there and is properly en-forceable as an order to pay money in terms of Section 217A. Italso follows that it cannot be argued that Section 218 (h) will notbe applicable to the enforcement of this order based on an agree-ment under Section 408, because whatever be the nature of theaction or whatever be the relationship of the parties, this lia-bility arises in law only from the agreement.
For these reasons I, therefore, allow the appeal of the Plain-tiff-Appellant and hold that the money agreed to be paid to theRespondent wife by the Plaintiff in this action cannot be re-covered by seizure of the Plaintiff’s salary on account of the barcontained in Section 218 (h). I accordingly set aside the Orderof the learned District Judge dated 2.12.1971 and make orderreleasing the Plaintiff’s salary from seizure in this case. ThePlaintiff, however, will not be entitled to any costs in these• proceedings.
Tennekoon, C. J.I agree.
A. SHANMUGANATHAN, Appellant and NAMAGAL, Respondent