035-NLR-NLR-V-46-ASILIN-NONA-Appellant-and-PETER-PERERA-Respondent.pdf
Atfiiin Nona and Peter Prrrra.
109
1945Present: Keuneman and Jayetilleke JJ.
ASILIN NONA, Appellant, and PETER PERERA, Respondent.
65—D. C. (Inty.) Colombo, 655.
Divorce—Order o/ court to pay alimony pendente lite—Von compliance withorder—Power of court to stay proceedings—Civil Procedure Code, s. 839.Non-compliance with an order of court in divorce proceedings to payalimony pendente lite amounts to contempt of court. In such a case tbscourt may in its discretion stay proceedings until the alimony due iapaid.
^y^PPEAli from an order of the District Judge of Colombo.
H. V. Perera,. K.C. (with him P. Malalgoda), for the 1st defendant,appellant.—The plaintiff was ordered to pay Rs. 20 per mensem as ali-mony -pendente lite to the 1st defendant. He has refused to comply
Q. B. D. 479.
110
KBUNEMAN J.—Asilin Nona and Peter Pcrera.
with the order although he is able to pay. The question for considerationis whether the District Court has power to stay proceedings until thealimony is paid. The District Judge has held that he has no such powerunder the Civil Procedure Code.
[Jayktileke J.—Is this not a case in which steps should have beentaken under section 4 of the Civil Procedure Code?]
The inherent power of the court referred to in section 839 of the CivilProcedure Code can be invoked in a case like this—Ramen Chettiar v.Vyraven Chettiar Selvadurai v. Rajah et al 2; Mohamed v. AnnamalaiChettiar et al 3. It has been held in India that when an adjournmentof a case is granted on condition of prepayment of costs the order shouldnot be allowed to be flouted—East India Railway Company v. Jit MaiKalloo Mai *In spite of the absence of any provision in the Civil Pro-
cedure Code the- rule of English practice that in a divorce case the hus-band- may be ordered to pay into court his wife's expenses for contesthas been adopted in Ceylon.—Abeyagoonesekera v—Abeyagoonesekera s;Silva v. Silva ‘….Alimony is even more important than the costs of suit;and the practice in England, India and South Africa of enforcing, when-ever necessary, by stay of proceedings, the payment of all alimony duemay likewise be adopted—Leavis v. Leavis 7; P. V. P. and T.3; Chappellv. Chappell 9; Berry v. Berry 10; Yaqub Masih v. Christina Masih lI.
M. M. Kumarakulasingham for the plaintiff, respondent.—Theennotment which governs procedure in matrimonial actions is section 596of the Civil Procedure Code. There is no provision for stay of proceedingsfor non-payment of alimony. It cannot be said that the wife has no®remedy in law for enforcing the payment of alimony. In the presentcase, the 1st defendant has already a writ in her hands. She can alsoseek relief under the provisions of the Maintenance Ordinance—Fernandov. Amarasena 12. Where a party has another remedy open a court willnot act under section 839 of the Civil Procedure Code—Paidusz v. Perera 15;Chitaley and Rao’s Commentary on the Indian Civil Procedure Code(2nd ed.) r.1036.
Cur. adv. vult.
February 23, 1945. Keuneman J.—
The plaintiff brought this action for divorce against the 1st defendanton the ground of malicious desertion and adultery with the 2nd defendant.The 1st defendant denied the allegation made and counterclaimed for adivorce against the plaintiff on the ground of malicious desertion andadultery.
On March 24, 1943, the District Judge ordered plaintiff to pay the 1stdefendant alimony pendente lite at the of Rs. 20 per mensum and alsoRs. 125 as expenses of litigation.
1 1940) 41 N. L. R. 3713 [1940) 41 N. L. R. 423.3 (1932) 34 N. L. R. 321.
A. I. R. 1925 AU. 280.3 (1909) 12 N. L. R. 95.
(1905) 8 N. L. R. 280.
L. R. 1921 p. 299.
(1910) 26 T. L. R. 607.
(1938) 4 A. E. R. 814.
’• 10 Vol. 27 Empire Digest 443.
u A. I. R. 1941 AU. 93.(1943) 45 N. L. R. 25.
*’ (1933) 34 N. L. R. 437.
KBUNEMAN J.—Atilm Nona and Peter Perera.
Ill
Admittedly the plaintiff has paid the expenses of litigation but hasfailed to pay any of the alimony. At the time of this inquiry the 1stdefendant had taken out writ, and subsequently a small part of thealimony due was recovered. On the trial date—April 4, 1944—appli-cation was made on the part of the 1st defendant that as the plaintiff hadavoided payment of the alimony the court should stay the proceedingsuntil the alimony due was paid.
The District Judge refused this application. He held that there wasno provision in the Civil Procedure Code which enabled him to grant it,and that he had no authority to adopt the procedure and practice of theEnglish Courts in this matter, and that he would bo making law if heacceded to that argument. He held this to be the oase even if the plaintiffwas possessed of means and refused to pay or avoided paying the alimonyordered.
The 1st defendant appeals from this order.. .
Counsel for the appellant argues that the District Judge has failedto take into account the inherent power of the court, now set out in section839 of the Civil Procedure Code but recognised even before that seetioncame into being. Counsel contends that the application he made wasnecessary for the ends of justice or to prevent abuse of the process ofthe court ”.
For example, in 1905 and 1909, long before section- 839 was enacted,H was held that our courts could adopt the rule of English practice thatin a divorce case the husband is as general rule liable to pay into eourtor give security tor an amount sufficient to cover the wife’s costs in con-nection with the case. This decision was arrived at in spite of the factthat our Civil Procedure Code was silent on the point; see Silva v. Silva 1and Abeygoonesekera v. Abeygoonesekera3. Since these cases weredecided seetion 839 has been enacted reserving to the court the inherentpower of the pourt “ to make such orders as may be necessary for the endsof justice or to prevent the abuse of the process of the Court ”.
Under the corresponding section of the Indian Code of Civil Procedure(section 151) it was held that when payment of costs is made a conditionprecedent of adjournment granted to the defendants it is open to the eourtto strike off the defence and proceed ex parte when the costs are not paidas directed; A.I.H. (1925) Allahabad 280. In this case Mukerjie J.said—
"Further section 151 of the Civil Procedure Code would also justifythe Court in acting in the way it did act. To have allowed the defen-dant to flout the orders of the court would certainly have been an abuseof the process of the court, and would certainly not have been con-sistent with the ends of justice. I am prepared therefore to holdthat if no other rule applied section 151 would enable the court toexercise its inherent power by enforcing its reasonable orders."
It is unnecessary to eonsider whether in view of o'ur own decisions thisdictum is applicable in Ceylon to its fullest extent. But in my opinionthe Court would eertainly in circumstances such as these, be entitled
46/14
1 8 N. L. R. 280.
* 12 N. L. R. 93.
ua
KEUNEMAN J.—Asilin Nona and Peter Perera.
to order a stay of proceedings until the costs have been paid. I. mayadd, in view of the District Judge’s comments on this matter, that if thematter be treated as a contempt we are not in fact increasing our punitivepowers as regards contempt; for contempt may also operate as an abuseof .the process of the court, and may therefore bring the party within theambiVof section 839.
I think it is also open to us to consider the English practice in thismatter, not indeed for the purpose of importing English practice andprocedure into Ceylon but for the purpose of considering the principleson which the English Courts act and of seeing whether those principlesare reconcilable with section 839.
In the case of Leavis v. Leavis 1 it was held that orders of the DivorceDivision for payment of costs and alimony, cannot, since the DebtorsAct of 1869, be enforced by attachment, but non-compliance with suchorders still constitutes contempt of court. The court may in its discretionrefuse to hear a party to divorce proceedings so in contempt or to permithim to take further proceedings in the suit. In this connection Hall J.said.—
“ Compliance with orders for the payment of the wife’s costs andalimony pendente lite is regarded by the court as important to theadministration of justice in order that the wife should be providedwith the means to carry on the litigation, and should not be left des-titute. I have come to the conclusion that it is a matter of discretionfor the court to determine upon all the circumstances of the casewhether the respondent so in contempt should be heard; and that it-is a matter material to the exercise of that discretion to consider whe-ther non-compliance with the Orders is due to the fault or to themisfortune of the respondent.
See also the case of P. V. P. and T.2 where the non-compliance waswith regard to an order for alimony—not in the suit stayed but in aseparate suit, where the alimony was pot – granted in a particular suitbut was given to the wife for her support generally. See also Chappell v.Chappell.
These English cases are interesting because they are based on ttiematter of contempt, and in my opinion the principles enunciated areapplicable to Ceylon because contempt may be regarded as an abuse ofthe process of the court.
An attempt was made in this case to distinguish between the orderfor the prepayment of costs and the order for alimony pendente lite. Ido not think there is any substance in the distinction. If it is a con-tempt to refuse to prepay costs, it will equally I think be a contempt totry to starve the wife into surrender, or to reduce her to such a state ofdestitution that she cannot efficiently carry on the litigation.
In this case the District Judge has assumed that the plaintiff beingpossessed of means has refused to pay or avoided paying the alimony.
{1921) Prob. Dvn. 299.
(1938) 4A.E.R. 814.
» 26 Times L. R. 607.
Wills and Commissioner of Stamps.
113
He has not definitely held that this is the fact. The order appealed'from is set aside with costs, and the case is remitted to the District Judgeso that he may consider the facts and exercise his discretion in the matter.Either party may adduce any evidence he desires in this connection.All other costs will be in the discretion of the District Judge.
Jayetileke J.—I agree.
Appeal allowed.