027-NLR-NLR-V-23-BEEBEE-v.-MAHMOOD.pdf
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Present: ShawJ.
b:
MDISiMP
v. MAHMOOD.
1921.
197—P. G. Colombo, 11,652.
Maintenance—Application by mother for children dismissed as she wasnot ready with evidence—Subsequent application—Is dismissedbar f—Application by person other than mother.
An application for maintenance of children may be made byother persons besides the mother.
Where an application made by a mother was not heard on themerits, bat was dismissed as she was not ready with evidence, andsubsequently an application was made by the grandmother,—.
Held, that the previous application was no bar to the sub.sequent application.
“ The Magistrate should have entertained the present applicationeven had it been made by the mother.11
fjlHE facts appear, from the judgment.
Cooray, for appellant.
March 3,1921. Shaw J.—
This is an appeal from a refusal of the Magistrate to entertaincertain maintenance proceedings on Hie ground that there hadbeen a previous application which had been dismissed. Theprevious application was made by the mother of the two children,and it was never heard on the merits, her case being dismissedbecause she was not ready with her evidence on a date to whichthe hearing had been adjourned. The present application is madeby the grandmother of the children, who says that the same areunder her care for the last seven months, and that the defendanthas failed to maintain them. The case of Ana Perera v. EmaUanoNorm1 shows that where an application for maintenance is struckout without inquiry into the merits, the applicant may make aflesh, application, provided the time limit prescribed by section 7of the Ordinance has not. expired. The Magistrate, therefore,should have entertained the present application even had it beenmade by the mother, who was the applicant in the previous case.In fact, however, the applicant is the grandmother of the children.She could not in any way be said to be precluded by the previouscase, and an application may be made for maintenance under theOrdinance by other persons besides the mother. In the case thatI have cited this is referred to in the judgment of Wood Benton J.at page 271.
I send the case back to the Magistrate for the purpose of proceed-ings in due course.
1 (1908) 22 N. L. B. 263.
Sent back.