036-NLR-NLR-V-41-ARYANAYAGAM-v.-THANGAMMA.pdf
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Aryanayagam v. Thangamma.
1939Present: de Kretser J.
ARYANAYAGAM v. THANGAMMA.
494—M. C. Jaffna, 6£05.
Maintenance—Order of District Court making provision for maintenance ofchildren—Bar to proceedings under Maintenance Ordinance.
An order made by the District Court in the exercise of its matrimonialjurisdiction making provision for the maintenance of the children of themarriage operates as a bar to proceedings for their maintenance underthe Maintenance Ordinance.
T
HIS was an application for maintenance of children brought by themother, the applicant-respondent, against the defendant, their
father. The Court allowed the application. The question argued inappeal was whether an order made by the District Court in the exerciseof its matrimonial jurisdiction, making provision for the maintenance ofchildren, operates as a bar to proceedings under the Maintenance Ordinancefor their maintenance by the mother of the children against their father.
S.Nadesan, for defendant, appellant.—The decision in Lamehamy v.Karunaratne ', does not apply to a case where maintenance is claimed onbehalf of a legitimate child between whose parents an action for judicialseparation or for dissolution of marriage or for declaration of nullity ofmarriage is pending before a District Court. In such a case the DistrictCourt has jurisdiction to award maintenance under section 619 to section622 of the Civil Procedure Code.
In this case the District Judge has awarded maintenance under section619 of the Civil Procedure Code. Maintenance is granted to the child,though the application for it is made by the mother. If the DistrictJudge considered it desirable he could have ordered that the maintenanceamount should be paid to some other person on behalf of the child.
The liability to pay maintenance to a child is a civil liability and theMaintenance Ordinance provides a speedy remedy for enforcing thisliability—see Eina v. Eraneris *; Subaliya v. Kannangara. *
Unlike in India where the provisions regarding maintenance are part ofthe Code of Criminal Procedure, in Ceylon these provisions are embodiedin a separate Ordinance. The Magistrates’ Courts really exercise a civiljurisdiction when they act under the Maintenance Ordinance.
The mother in making an application under the Maintenance Ordinanceacts on behalf of a child..
Whether an order for maintenance in respect of a child is made by theDistrict Judge under section 619, Civil Procedure Code, or by the Magistrateunder the Maintenance Ordinance, the real parties to such orders are thechild and the father, and the matter adjudicated upon in both cases isthe claim of the child for maintenance and both Courts exercise a civiljurisdiction. Hence the plea of res judicata is available to the appellant.
’ 22 -V. L. R. 2S9.
3 4 S’. L. R. 121; 12 S’. L. R. 2G3.
3 4 Y. /.. P.. 4.
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DE KRETSER J.—Aryanayagam v. Thangamma.
In India it has been held “ that a woman is not entitled to an orderfrom a Magistrate when a decree for maintenance obtained by her in acivil Court is in force”—(see Solioni Indian Code of Criminal Procedure,p. 1034, section 21).
In Ceylon the case would be stronger as the Magistrate exercises a civiljurisdiction in maintenance cases.
H. W. Thambyah (with him A. C. Nadarajah), for appellant, respondent.—Judgment in one action operates as res judicata in another case onlybetween the same parties or their privies—(see Gunaratne v. Punchi Banda'
(Spencer Bower on Estoppel, para. 167, 1923 Edition.)
In the District Court the parties are husband and wife. In thismaintenance case, a claim is made on behalf of the children. The wifeonly makes an application on behalf of the children. Any one could makethe application on behalf of a minor child—see Girigoris v. Don Jacolis Hence there are really no parties, as we understand the term in a civilcase. At the most, it is an action between the father and the minorchildren. Hence decree of the District Court does not operate as resjudicata.
Where a father neglects to maintain his legitimate child the cause ofaction is a continuing one.
A previous order in a maintenance case where the father is ordered topay a lump sum was held not to be res judicata in a subsequentmaintenance action Hinihamy v. Gunawardene3. In the District Courtcase there is an alternative order to pay a lump sum. Hence for thesame reason decree in the District Court case cannot be pleaded as resjudicata in this case since the man has not paid anything under the decreein the District Court.
There must be identity of causes of action. In a divorce actionmaintenance is given incidentally as a relief. In a maintenance actionorder is made so that child may not be a charge on the public. Thus inEngland it has been held that an order for maintenance made under theMarried Women’s Summary Jurisdiction Acts is not a bar to an appli-cation for maintenance under the Poor Relief Acts. (See BirminghamUnion v. Timmins'; Guardians of Shaftesbury Union v. Brockway )Court in which relief is asked is different and the nature of the obligationis different.
The case cited by Counsel for the appellant is not available and hence noreliance can be placed. Further it can be distinguished because in Indiathe view is that maintenance proceedings are only ancillary to civilproceedings. But in Ceylon the Maintenance Ordinance is the onlyprovision under which maintenance can be claimed. (See Lameliamy v.Karunaratne'.)
December 13, 1939. de Kretser J.—
The question in this case is whether an order made by a District Courtin the exercise of its matrimonial jurisdiction, making provision for themaintenance of the children of the marriage who are committed to the
Cur. adv. vult.
* 20 K. L. It. 249.1 1 C. A. R. 4.
» 3 C. /.. /?<•<•. 791
(191.1) 2 K. B. ISO.
(1913) 1 K. B. 150.
22 K. 1i. R. 289.
DE KRETSER J.—Aryanayagam v. Thangamma.
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custody of the aggrieved spouse, operates as a bar to proceedings underthe Maintenance Ordinance by the mother of the children against theirfather.
The Magistrate held that it did not, relying on the case of Lamehamy v.Karunaratne (supra), which he interpreted as meaning that all applicationsfor maintenance must be made under the Ordinance and under theOrdinance alone. The Magistrate seems to have been of opinion that theorder made in the District Court was of no value as having been madewithout jurisdiction. This is not so. All that was decided in that casewas that the Roman-Dutch law on the subject had been superseded by theMaintenance Ordinance.
In matrimonial proceedings the District Court deals with all mattersarising out of the marriage, and may provide not only for the maintenanceof the children but also for their education and their custody. It is notsubject to some of the restrictions which exist in the MaintenanceOrdinance. The District Court need not make provision for maintenance,nor is the wife obliged to ask for an order for maintenance. The Courtmay make an order not in favour of the wife but in favour of some otherperson who is more likely to look after the interests of the children. Anorder therefore made by the District Court is much more advantageous tothe children than one made under the Maintenance Ordinance. Thereis only one advantage which the Ordinance gives, and that is that pressureby way of imprisonment may be brought to bear on the father in the eventof default of payment of the maintenance ordered. That is a matterwhich the person applying to the District Court should consider, but solong as the order of the District Court remains it is the order of a Courtof competent jurisdiction and, on general principles, it ought to be a barto separate proceedings on the same subject-matter.
Arguments and decisions based on the Poor Law in England have noapplication, for quite different considerations apply. Our MaintenanceOrdinance follows very closely the provisions of the Indian CriminalProcedure Code on the same subject; and Sohoni at p. 1034 (section 21)states that a woman is not entitled to an order from a Magistrate when adecree for maintenance obtained by her in a Civil Court is in force. Hequotes a case reported in 2 Weir 615 which is not available to me. Thereappears to have been a decision of the Bombay Court that when the decreeof the Civil Court cannot be executed on account of insolvency proceedingsthe Magistrate may then act under the provisions in the Code.
If it were merely a matter of applying one of two alternative proceduresfor execution there could be no objection to the applicant choosing eitherof them. But in proceedings under the Maintenance Ordinance the Courthas to consider matters which have already been dealt with by the CivilCourt, and the procedure cannot therefore be applied as if it were purelyancillary.
The appeal is allowed and the order made in this case is set aside. Nocosts are awarded.
Appeal allowed.