067-NLR-NLR-V-12-ANNA-PERERA-v.-EMALIANO-NONIS.pdf

ESE were cases under the Maintenance Ordinance of 1889(No. 19 of 1889).
In Anna, Perera v. Emaliano Nonis, 402. P. C., Colombo, 24,000,the defendant appealed from an order condemning him to payRs. 5 a month by way of maintenance for his two illegitimatechildren.
Tambiah, for the defendant, appellant.Koch, for the petitioner, respondent.
1908.
August 21.
1 (1909) 12 N. L. R. 97.
( 264 )
IS08. In Jvstina v. Arman, 387, P. C., Galle, 44,050, the petitionerAugust 21. applied to revise an order of the Police Magistrate refusing to re-open the case and to re-issue summons.
Bartkolomeusz, for the applicant in revision.
No appearance for the respondent.
The facts and arguments in both cases are fully stated in thejudgments.
Cur. adv. wit.
August 21, 1908. Middleton J.—
The above two maintenance cases were referred respectively bymy brother Wood Renton and myself to a Court of two Judges, inview of the decision of my brother Wendt in Sabhoor Umma v.Coos Kanny*
In 402, P. C., Colombo, 24,000, the Magistrate, without hearingany evidence after two adjournments, on the third occasion, theapplicant being not ready, noted on the record “ Respondentdischarged.” The Magistrate subsequently re-opened the case andmade an order for maintenance. It was contended on appeal thatthe order of discharge operated as an acquittal.
In 387, P. C., Galle, 44,050, which I reserved, the Magistrateheard the evidence of the applicant, on the application for process,and fixed the case for March 11, 1909, on which date the applicantput in a document alleging an amicable settlement, and askedleave to withdraw the proceedings. The Magistrate allowed this,but noted on the proceedings “ application dismissed, accusedacquitted.”
On an alleged breach of the amicable settlement the applicationwas renewed on April 27, May 12, May 25, and June 2, and on eachoccasion refused, the Magistrate saying he could do nothing on theface of Iris order of March 11. An appeal was entered against theMagistrate’s order of refusal on June 2, but being defective in someway, my brother Wood Renton allowed notice to issue to thedefendant in revision.
The two cases were argued at the same time, and it is appropriatethat they should be covered by one judgment I have had theadvantage of reading the elaborate judgment of my brother WoodRenton, and I agree,with him.
I think that Bonser C.J.’s opinion in 4 N. L. R. 123, that thecivil liability of the father to maintain his illegitimate children underthe Roman-Dutch Law (Voei 25, 3, 5) was the ftwndation of thePolice Court proceedings enacted by Ordinance No. 19 of 1889,and in all probability of the Vagrants Ordinance, No. 4 of 1841,making the failure, to maintain his children an offence in the father.
1 (1909).12 N. L. R. 97.
( 265 )
I agree that the obiter dicta of Burnside C.J. and Dias J. in 1908,holding in Rankiri v. Kiri Hattena1 that the liability created by August 21.Ordinance No. 19 of 1889 is criminal and not civil is not binding Middletonon ns here.J.
Under the Vagrants Ordinance of 1841, the failure to support hisfamily was made an offence in the father by sub-section (2) ofsection 3. This sub-section was expressly repealed by Ordinance-No. 19 of 1889. From the terms of this Ordinance, as my brothersays, I have always thought it is no offence under it to fail tomaintain children, nor are the proceedings criminal, except in sofar as they are triable by a Police Court, and subject to a fewspecified sections of the Criminal Procedure Code. The nomen-clature of the parties also under section 12 evinces a civil ratherthan a criminal character.
I desire to record my emphatic agreement with my brother inhis condemnation of the practice in some Police Courts of using theterms “complainant,” “ accused,” “discharged,” and “acquitted”in maintenance proceedings, which I have more than oncecharacterized as unwarranted.
I cannot see also how it is possible, without violating the maximexpressio unius exclusio alterius, to introduce other sections of theCriminal Procedure Code into the Ordinance than those mentionedin section 15.
1 fail to see also, then, how we can import into and apply thedoctrine of autrefois acquit as laid down in section 330 of the CriminalProcedure Code, even by an analogy to proceedings which are not inthemselves criminal, and do not involve the trial of an offence.
Orders such as those made in the cases under consideration arenot orders under section 3 of the Ordinance, as they are not made“ upon proof,” and they are not therefore appealable orders withinthe ruling of the Full Court in Tissehamy v. Samvel Appu.2 Section3 also, 1 think, contemplates that the Magistrate may make anorder for maintenance of wife and children upon an applicationmade by a person other than one of those to be benefited by theorder. This lends colour to the theory that the policy of theOrdinance is that all applications under it should be dealt with byadjudication on the merits.
If, therefore, the applicant has no appeal, and the case has notbeen disposed of on the merits, the applicant is in the same positionas one under the English Law, and should have the right of renewalas laid down in the English cases under 7 and 8 Viet. C. 101 quotedby my brother. See also R. v. Harrington 3 and Reg. v. Hall.*.
I therefore entirely agree with my brother Wood Renton thatwhere an application has been dismissed, in whatever form theMagistrate may choose for indicating such dismissal without any
1 (1891) 1 C. L. R. 86.* 12 W. R. 420.
1 (1902) 5 N. L. R. 334.* 51 L. Times 306.
21-;2
( 266 )
1908. inquiry into the ease upon the merits beyond the statement ofAugust 21. the applicant made under section 13, the same may be renewedMiddleton atl any time within the period limited under section 7 of theJ. Ordinance.
I do not think that such dismissal is either res judicata or autrefoisacquit, and I hold that the appeal must be dismissed in P. C., Colombo,. 24,000, and that the applicant in revision in 387, P. C., Galle, 44,050,is entitled to the reception of her fresh application as from April 26,1909, the day on which the same was presented to the Magistrateasking that the case might be re-opened.
Wood Renton J.—
In this case, which was argued before me sitting alone on July 12,and which I referred to a Bench of two Judges because of its difficultyand importance, the respondent charged the appellant under section3 of Ordinance No. 19 of 1889 with having failed to maintain theirtwo illegitimate children, and on June 17 last obtained an orderagainst him to pay Rs. 5 a month by way of maintenance. In herapplication to the Police Court, which was dated June 3, 1909, therespondent alleged that the appellant had failed to maintain thechildren in question for the three previous months. The paternityof the children is not in issue, and Mr. Tambyah, counsel for theappellant, based his case on a plea of autrefois acquit, which hecontended was. established by the following circumstances.
On May 3, 1909, the present respondent made a similar applicationfor a maintenance order against the appellant in regard to the samechildren in P. C., Colombo, No. 23,854, alleging refusal on his partto maintain them since the previous month of March. On May 4summons was issued for the 11th, and after two intermediateadjournments the case came on for hearing on June 1. On thatday both parties were present, but the appellant was not ready, andthe Police Magistrate accordingly, without hearing any evidence,made an order, which is noted thus in the record : “ Respondentdischarged.” Mr. Tambyah contended, on the strength of thedecision of Mr. Justice Wendt, in the case of Sabhoor Dmma v. CoosKanny.1 that that discharge operated as an acquittal, and claimedthe benefit of section 330 of the Criminal Procedure Code, whichprovides “ that a person who had once been tried by a Court ofcompetent jurisdiction for an offence, and acquitted of such offence,shall, while such acqdittal remains in force, not be liable to be triedagain for the same offence.” Mr. Tambyah contended, both onthe construction of Ordinance No. 19 of 1889 and on the authorityof local and Indian decisions, that the omission by a man tomaintain his wife and children is a criminal offence, and that,therefore, an acquittal op a charge of that offence forms a goodfoundation for a plea of autrefois acquit to any subsequent proceedings1 (1909) 12 N. L. R. 97.
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in regard to it. I am not prepared to assent to this argument, andI shall deal with the questions of law involved in it as briefly aspossible. I think it is clear that, according to Roman-Dutch Law,a father was liable civilly for the support of his illegitimate children(see Voet 25. 3, 5; Subaliya v. Kannangara ;1 and Burge, 2nded., Vol. II., pages 556 and 557). It has been held—and I thinkthat the decision is right—-that since the enactment of OrdinanceNo. 19 of 1889 it is no longer competent for a woman to bring a civilaction in this Colony to recover maintenance for herself and herchildren as a debt due to her arid them by the father (Menikhamy v.Lo.ku Appu‘l). The special rights and remedies created by theOrdinance must be held to have superseded the Common Law. Butit is important, nevertheless, when we have to construe such anenactment as Ordinance No. 19 of 1889, to consider what theCommon Law was, and I agree with the decision of Bonser C.J.in Subaliya v. Kannangara (vbi sup.) that the foundation of thejurisdiction of the Police Court in matters of maintenance is thecivil liability, already referred to, of the father' to the motherunder the Roman-Dutch Law, and that Ordinance No. 19 of 1889merely provided a simpler and less costly procedure for its enforce-ment. Mr. Tambyah argued that there was nothing to show thatthe Roman-Dutch Law on this subject was in force in Ceylonat the time of the British occupation, and he referred us to aninteresting case (Reg. v, Mendis s) in which the Full Court held thatthe English Common Law as to attempts to bribe was in force inCeylon, and discussed the questions of the survival of the Roman-Dutch Law and the gradual importation of the English Law incriminal matters here. I will deal later on with the question howfar Mr. Tambyali’s case can be supported, if the law of Englandwere to be applied in its determination.
For the present it is sufficient to say that there is no proof thatthe Roman-Dutch Law as to maintenance was not in force in thisColony at the time of the British occupation, and that, in the absenceof such proof we have no right to assume the contrary. In thecase of Rankiri v. Kiri Hattena* it was held by Burnside C.J.and Dias J., Clarence J. dissenting, that the liability created byOrdinance No. 19 of 1889 is criminal and not civil. If the dicta ofthese learned Judges in that case were necessary to its decision,they are, of course, binding on us. But the only question thathad actually to be decided in Rankiri v. Kiri Hattena was, whethera decision in a previous proceeding under the Ordinance dismissingthe application on the ground that paternity was not proved asagainst the respondent could be set up as a plea of res judicata toa subsequent application by the mother against the same respond-ent in regard to the same child. The Supreme Court held, and if
1 (1899) 4 N. L. R. 121.* (1883) 5 S. C. C. 186.
*(1898) 1 Bal. 161.4 (1891) 1 G. L. R. 86.
1908.
August 21.
WoodRenton J.
( 268 ) .
. 1908. I may say with great respect, properly held, that it could. It wasAuguat 21. unnecessary, for the purpose of arriving at a decision on thatWood question, that.the Court should consider whether or not the omissionRbnton j. by a father to maintain his wife or children is or is not a criminaloffence under the Ordinance of 1889, and I venture to think thatthe reasons assigned by Burnside C.J. and Dias J. for so holdingare not entitled to command our assent as ratio scripta. Chief■Justice Burnside expressed himself as follows :—“ There is, in myopinion, nothing in this case to distinguish it from that alreadydecided by the Full Court, reported.in 5 8. C. C. 231, which issufficiently authoritative on that point.” I would venture to pointout that there is this vital distinction between the two cases, that thecase reported in 5 S. C. C. 231 [Podihamy v. Qunaratne (1883)] wasdecided under section 3, sub-section (2), of Ordinance No. 4 of 1841,which expressly made the failure by a man to maintain his familya criminal offence, whereas the case of Rankiri v. Kiri Hattena wasdecided under Ordinance No. 19 of 1889, which not only containsno enactment to that effect, but expressly repeals (see section 2)the very section in the Ordinance of 1841 under which the case ofPodihamy v. Qunaratne was decided. I think that the reasoningof Clarence J., the dissenting Judge, in the case of Rankiri v. KiriHattena, was sound, and I have the less hesitation in preferringhis opinion to that of Burnside C.J. and Dias J., because I findthat the same view was taken by Bonser C. J. in Subaliya v. Kannan-gara. The nature of the Ordinance itself seems to me to supportstrongly this conclusion! I have already referred to the expressrepeal by section 2 of the provision in the old Ordinance of 1841,under which neglect to maintain a wife and children was expresslymade, and spoken of as, an. offence. In addition to that, I wouldpoint out that section 12 directs the use of the terms “applicant ”and “ defendant ” to describe the respective parties to the. pro-ceedings, and that sections 14 to 17 incorporate only certain specifiedprovisions of the Criminal Procedure Cocte into the Ordinance.
I do not think that we ought to be guided by the decisions undersection 488 of the Indian Code of Criminal Procedure, to whichMr. Tambyah referred us in the argument (Benhow v. Benhow ;1 seealso In re De Castro;4 Prinsep, Grim. Procedure Code, under section488). In India the law of Maintenance is expressly incorporatedinto the Criminal Procedure Code. The proceedings are apparentlyinstituted as criminal proceedings, and in sub-sections (7) and (9)the respondent is termed an “ accused.”
The law of England is clear in the same sense as that in which,in my opinion, Ordinance No. 19 of 1889 ought to be construed.In Reg. v. Berry,3 a case turning on the construction of the Statute7 and 8 Viet. c. 101, which bears a close analogy to OrdinanceNo. 19 of 1889, Lord Campbell C.J. said : “ The proceeding* (1897) I. L. n. £4, Cal. 638. > (1891) 13 AH. 348. s (1859)8 Cox C. C. 126.
( m )against a putative father of a bastard child to obtain an order ofmaintenance is not a proceeding in poenam to punish for a crime,but merely to enforce a pecuniary obligation.”
On the grounds that I have stated I am of opinion that failureto maintain a wife and children is not an “ offence ” under the lawof Ceylon, and that, therefore, no plea of autrefois acquit can be setup by a defendant who has successfully resisted proceedings underthe Ordinance of 1889. The point is of practical importance,because the right to institute proceedings under the Ordinance isnot limited to the mother (see Podina v. Soda1). I would add that,the practice which has grown up in many Police Courts of using theterms “ complainant,” “ accused,” “ discharge,” and “ acquittal ”in maintenance proceedings is not warranted by the Ordinance, ismisleading, and should be abandoned.
There remains, however, a more difficult question as to the effectthat ought to be given to such an order as has been made by thelearned Police Magistrate in the case that we have now to decide.The Maintenance Ordinance follows the line of English legislationin regard to bastardy. Prom very early times the rule of EnglishLaw has been that, while a decision of Petty Sessions on an appli-cation for maintenance is subject, at the instance of the putativefather, to an appeal to Quarter Sessions, whose judgment on themerits is final, the mother lias no right of appeal. She has'thepower to obtain a re-hearing so long as she is not shut out by lapseof time, and may make a fresh application to Petty Sessions, eventhough the original decision against her was on the merits. Inthis state of the law there was obviously no need to frame minuteregulations as to what the Justices in Petty Sessions should do inthe event of the applicant being absent, or not being ready to goon with the case, on the day of trial. For if the application woredismissed, the dismissal was no bar to any number of subsequent'applications of the same character, so long as they were madewithin the limit of time which the law allowed. (Pridgeon's case ; 2Slater's case ;3 Anon; 4 R. v. Tenant; 8 R. v. Jenldn;• R. v. Brisby;7R. v. Machen ; 8 Reg. v.. Cook and Hickling;9 Reg. v. Gaunt;10 Reg.v. Glynne ; n Anderson v. CoUinson.12)
Ordinance No. 19 of 1889 deals with the subject of maintenanceon similar lines. It provides specifically for everything that isnecessary with a view to securing a trial on. the merits, mid toenforcing any order for maintenance that may be made as the resultof such a trial. It contains, however, no express provision of its
*{1900) 4 N. L. R. 109.
(9 Car. 1) 3 Cro. Car. 341, 330.
3 (13 Car. 1) 3 Cro. Car. 470.
(21 and 22 Car. 11) Vent. 48.
(13 Geo. 1) 2 L. D. Raym, 1424.
(9 Geo. 11) Cos. t. Hard. 301.
»* (1901) 2 K. B. 107.
7 (1849) 18 L. J. M. C. 157.
• (1849) 14 Q. B. 74.
» (1852) 21 L. J. M. C. 136, Erie J.at p. 137.
“ (1867) L. R. 2 Q. B. 466.
« (1871) L. R. 7 Q. B. 16.
1908.
August 21.
WoodRentox j.
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1908. own as to what is to be done in the case of the applicant not beingAugust 21. present or ready on the day of trial, and none of the importedWood provisions of the Criminal Procedure Code have any bearing on theRenton J. subject. Why should we not apply the English practice ? Theargument against its adoption may be put thus. The Ordinancediffers from English legislation, it may be contended, in this, thatit confers a right of appeal on the applicant as well as on the defend-ant, and so invests any order made by the Magistrate at the trialwith a judicial character. We have, therefore, to find a rule of lawapplicable to cases like the present, where an order has been madein the Court of first instance, but there has been no decision on themerits. And so much of the Criminal Procedure Code has beenincorporated into the Ordinance that it is reasonable enough toseek for guidance from that enactment. This view was adopted byWendt J. in the case of Sabhoor Umma v. Coos Kanny (vJbi sup.),to which I have already referred. . The question at issue betweenthe parties was as to the paternity of an illegitimate child. Thetrial was fixed for May 9, and the parties issued subpoenas for anumber of witnesses on both sides, but on the 9th both partieswere absent, and the Magistrate made the following order : “ Casestruck off.” It was held by Mi-. Justice Wendt that as, if the casehad been a criminal one in the ordinary sense of the term, such anorder would amount to an acquittal of the accused under section 194of the Criminal Procedure Code, it should, in view of the clearintention of the Legislature that procedure under Ordinance No. 19of 1.889 should, be regulated by that Code, be held to be a finaldetermination of the application for maintenance, which, however,the Police Magistrate would himself be bound to set aside under theproviso of section 194, if the applicant satisfied him that his absencewas due to sickness, accident, or some other cause over which hehad no control.
It appears to me that, unless we are compelled to accept thissolution of the difficulty, to which the present ando similar caseshave given rise, it ought not to be adopted. In the first place,we can only give effect to it by disregarding the maxim of statutoryinterpretation, expressio unius exdusio altering. Sections 15, 16,and 17 of Ordinance No. 19 of 1889 expressly point out the provi-sions of the Criminal Procedure Code which are to be applied inmaintenance proceedings. None of these provisions deal with thestriking off of cases or the discharge of accused parties under theCriminal Procedure Code. Unless the Ordinance is unworkablewithout having recourse to that expedient, we have no right, Ithink, to incorporate section 194 and similar sections by way ofanalogy. In the second place, the adoption by way of analogy ofsuch provisions in the Code of Criminal Procedure prevents usfrom giving effect to what, I think, is the policy of the Ordi-nance of 1889, namely, that applications for maintenance should
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not be disposed of otherwise than upon an adjudication on themerits.
I think that this policy is made clear by the fact that under theOrdinance it is open to any one to bring to the notice of the Courtthe failure of a man to maintain his wife and children. Moreover,circumstances arise for which the Code makes no provision. Inthe case, for instance, that we have- now to decide, where an appli-cation was dismissed because the mother was not ready with herevidence, what help can we get from the Criminal Procedure Code ?Section 289 enables a Magistrate to postpone proceedings, but itthrows no light on the rights of parties if he refuses a postponement,and we should have to try to find a way out- of the difficulty undersection 191.
I would venture to suggest that the true solution of the problemjs to be found in the fact that Ordinance No. 19 of 1889 gives toa woman no right of appeal in cases where her application has beenstruck out, either on the ground of her failure to appear in supportof it, or because she has made an unsuccessful application for apostponement on the day fixed for the hearing.
Under section 17 no right of appeal is given, except from order’smade by a Police Magistrate under section 3, which deals with theoriginal proceedings to obtain an order of maintenance, or undersection 14, which enables a Magistrate- to refuse to issue a summonsin such proceedings or an application for a warrant to enforce anruder of maintenance. If the matter had been res Integra, I confessI should have thought that the object of section 1.7 of Ordinance. No. 19 of 1889 was to enact in Ceylon the English Law on thissubject, i.e., to give a right of appeal to the putative father wherean order adverse to him had been made, but to give no such rightto the applicant, leaving her, however, free to renew her application,if she thought proper, before- the Magistrate, so long as she couldbring herself within the time limit prescribed by section 3. • It hasbeen held, however, by a Bench of three Judges, in the case ofTissehamy v. Samuel Appu.1 that the order of a Magistrate who, afterhearing evidence in a case of maintenance, declines to make anorder for maintenance, is one that is appealable to the Supreme Courtunder section 17 of the Ordinance. This decision is, of course,binding on us. But it deals with cases wrhere the Magistrate hadso far complied with the provisions of section 3 as to hear evidence,and has made an order on that evidence. I do not think that weare bound to extend, or that we should be justified in extendingit, to cases like the present, w'here there has been no inquiry on themerits at all. In my opinion, where the Magistrate has struck outan application for maintenance on the ground of failure of eitheror both parties to appear on the day fixed for the hearing, or has,in whatever form of words he may choose to adopt, dismissed such1 uao-i) 5 N. L. H. 334-
MS.
August 21.
WoodRenton J.
ions.
August 21.
WoodRknton J.
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an application in refusing a request for postponement, but in eithercase without any kind of inquiry into the merits, the applicanthas no right of appeal under section 17, and is therefore, as inEngland, entitled to make a fresh application, provided the timelimit on which she has to rely under section 7 has not expired.The argument ab inconvenienti against this view of the law is fullyconsidered and disposed of in the English cases cited above, andparticularly in B. v. Jenkin.1
The interpretation of the Ordinance which, I think, should beadopted gives rise in any event to far less serious difficulties than theattempt to find a solution of the problem in provisions of the CriminalProcedure Code, which are impliedly excluded by the languageof the Ordinance itself, and which, as I have shown already in regardto the case now under consideration, do not directly meet, eitherby analogy or otherwise, the circumstances that have to be dealtwith. I would hold that the “ discharge ” of the respondent bythe Police Magistrate of Colombo in the present case on June 1 isno bar by way of res judicata any more than it is a bar by way ofautrefois acquit to the application on which the order now underappeal has been made. No argument was addressed to us by Mr.Tambyah with a view to showing that that order was bad on anyother ground.
In my opinion this appeal must be dismissed.
PC., GaUe, 44,050.
I concur in the judgment of my brother Middleton.
Appeal in P. C.,- Colombo, 24,000, dismissed.
Application in revision in P. C., GaUe, 44,050, allowed.
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1 Gas. t- Sard 202, 203.