047-NLR-NLR-V-64-D.-M.-ABEYSEKERA-Appellant-and-K.-M.-BISSO-MENIKA-Respondent.pdf
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L,. B. DE SILVA, J.—Abaysekera v. Bisso Monika
Present: L. B. de Silva, J.
D. M. ABEYSEKERA, Appellant, and K.. M. BISSO MENIKA,
Respondent
S. C. 7G6—M. C. Gampola, 14233
Maintenance—Order in javour of wife—Cancellation on ground of adultery—Retrospective effect of order of cancellation—Maintenance Ordinance {Cajj. 70),ss. 4, 6, 8, 10—Kandyan Marriage and Divorce Act, No. 44 of 19o2—Effectof maintenance order made thereunder.
When an order of maintenance entered in favour of a wife is cancelledunder sections 5 or 10 of the Maintenance Ordinance on the ground that sheis living in adultery, the order of cancellation may be made to take effectretrospectively so as to cover the period during which she has been living inadultery.
There is no provision undor tho Kandyan Marriage and "Divorce ActNo. 44 of 1952 enabling an order of mointonance entered by a District Registrarto bo made an order of the Magistrate’s Court.
Appeal from an order of the Magistrate’s Court, Gampola.
X). Ii. P. Goonetilleke, for Defendant-Appellant.
No appearance for Applicant-Respondent.
Cur. adv. vult.
October 5, 1961. L. B. de Silva, J.—
The Defendant-Appellant moved Court to cancol the Order for Main-tenance in favour of his wife, the respondent, on the ground that shewas living in adultery. Admittedly the Respondent was living in-adultery from July, 1959. Tho marriage between these parties, who
L. B. DE SILVA, J.—Abeysckera v. Bisso Menika
261
are Kandyans, was dissolved with effect from 14th September, 1960,being the date on which the dissolution of their marriage was registeredunder the Kandyan Marriage and Divorce Act, No. 44 of 1952.
The parties agreed that the applicant-respondent was not entitledto maintenance for herself as from the 14th September, 1960. TheAppellant contended that the applicant was not entitled to maintenanceas from July, 1959 as she was living in adultery from that time.
The learned Magistrate held that section 10 of the MaintenanceOrdinance (Chapter 76 of the Legislative Enactments of Ceylon) whichempowered him to cancel the Order for Maintenance, made no provisionfor an Order to be cancelled with retrospective effect.
Learned Counsel for the Appellant argued that sections 4 and 5 ofthe Maintenance Ordinance empowered the Magistrate to cancel theOrder for Maintenance with retrospective effect. Section 5 provides
as follows :—
' 1 1
, ** On proof that any wife in whose favour an Order has been madeunder section 2 is living in adultery ….. the Magistrate shall
cancel the Order. ”
«
It is not clear from sections 5 or 10 if the Order for cancellation ofMaintenance, can be made with retrospective effect. I am informed bylearned Counsel for the appellant that there are no local decisionsgoverning this point. He, however, referred me to certain decisionsunder section 488 of the Indian Criminal Procedure Code, relevant tothis point. The provisions of the Indian Code are more or less similarto the provisions of our Maintenance Ordinance.
Section 488 (5) of the Indian Criminal Procedure Code provides,“ On proof that any wife in whose favour an Order has been made underthis section is living in adultery …. the Magistrate shall cancelthe Order ”. This sub-section is identical with section .5 of our Main-tenance Ordinance.
Section 488 (4) of the Indian Code provides, “No wife shall be entitledto'receive an allowance from her husband under this section if she isliving in adultery …. ” This sub-section is identical with section
4 of lour Maintenance Ordinance.
* In ‘ Tari Bala Suklabaidya v. Ribal Ram Suklabaidya 1 Biswas, J. (asingle Judge) held, “ An order of cancellation takes effect from thedate of the order and has no retrospective operation ”.
" In Khandekar v. Khandekar 2, Broomfield, J. (in a case before twoJudges) referred to the earlier decisions including the case referred toabove and stated, “ We find ourselves unable to accept these rulings as.correct in so far as they appear to lay down that an order formaintenance is to be treated as a good and executable order until itis cancelled or set aside
1 A. J. R. 1938 Calcutta 144.
* A. I. R. 1942 Bombay 258.
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L. B. DE SILVA, J.—Ahcysckcrav.Bisso'Mf.nika
After considering section 488 (4) which is the same as section 4 ofour Maintenance Ordinance, he stated, “ The general language hereemployed seems to make this applicable to any sum receivable by a wifeby way of maintenance including arrears of maintenance. So that theeffect of clauses (3) and (4) together is that on proof that the wife isliving in adultery, the Magistrate will be justified in refusing and indeedbound to refuse to execute an order for maintenance, quite apart fromthe question whether the order has been cancelled or set aside ”i
Having considered clause 5 (same as our section 5), he drew adistinction between execution of an Order and its cancellation. Hosaid, “ It is by no means clear that the use of the word ‘ cancel ’ neces-sarily implies retrospective effect. Cancel may mean ‘ put an end to *or ‘terminate’ rather than ‘sot aside’. But this point is immaterial ifthe execution of the original order is barred under clauses (3) and (4).
The view wc take that an order for payment of maintenance may: beor become incapable of execution, quite apart from the question ofcancellation, is supported by 10 Rangoon 104 l.
Under section 488 (4) of the Indian Criminal Procedure Code, a
Magistrate may issue a warrant for recovery of the amount due on a
Maintenance Order, “ if a person so ordered fails without sufficient cause
to comply with the Order In the Rangoon C5so, the Court held,
“ The words * without sufficient cause ’ are very wide and seemed to us
to justify tho raising of a plea that the order has become spent owing to
the child for whom the maintenance was ordered, having attained tho
age of majority and being able to maintain itself …. Wo do not
considor it can have been the intention of tho Legislature that the order
which obviously is spent can still be enforcod until tho person affected
thereby shall have made a formal application under the provisions of
section 489(i.e. for an Order altering or cancelling the Order for
maintenance similar to an Order under section 10 of our Maintenance
*
Ordinance). The fact that an Order is so spent seems to us to be sufficientcause within the meaning of clause 3 of section 488 ”.
In section 8 of our Ordinance which provides for the enforcementof Maintenance Orders, the words “without sufficient cause” do notoccur. But under section 4 of our Ordinance, a wife who is living inadultery is not entitled to receive an allowance from her husband undersection 2. The allowance to the wife under section 2 is tho Order forMaintenance. If she is not entitled to the benefit of the Order forMaintenance, she has no right to enforce the Order for any period duringwhich she was living in adultery. It is the duty of tho Court not toenforce the Ordor with reference to the period during which the wifewas not entitled to an allowance under the Order.
In view of these considerations, I hold that a Magistrate is entitledunder sections 5 or 10 of the Maintenance Ordinance to cancel theMaintenance Order in favour of the Applicant-respondent with retros-pective effect to cover the period during which she was admittedly
1 (1932) 19 A. I. It. 94.
L. B. DE STLVA, J.—Abeynekera v. Bisto Mznika
263
living in adultory. I accordingly cancel the order in favour of theAppii cant-respondent for her own maintenance with effect from 1stJuly; 1959.
> . j l.
Ini this case the Defendant-Appellant was ordered to pay Us. 20/-a month to the Applicant-respondent as maintenance for their childArurida Kumari. Thereafter the marriage of these parties was dissolvedby the District Registrar and he ordered the Appellant to pay theRespondent Rs. 45/- a month as maintenance for the child. TheApplicant-respondent filed her affidavit dated 1/11/59. and moved thatthe Order of tho District Registrar increasing the maintenance for thechild be made an Order of the Magistrate’s Court and to recover main-tenance accordingly.
There is no provision under the Kandyan Marriage and Divorce ActNo. 44 of 1952 or under the Maintenance Ordinance for such an Order{Vide Abeysekera v. Abeysekera1). The learned Magistrate accepted thisposition but treated the application of the Appii cant-respondent as anapplication for enhancement of Maintenance under section .10 of theMaintenance Ordinance. He said, “ I have no right to whittle downthe effect of that Order and there is no need for the Applicant to gothrough the same material upon which she obtained that Order ofmaintenance for her child in order to satisfy me that the child needsRs. i 45/- per month now and not Rs. 20 per month as maintenanceearlier ordered by this Court
j *,.*’i
fc-'Asi no application had been made to the Court to enhance the Orderfor; Maintenance for the child under section 10 of the MaintenanceOrdinance, the course adopted by the learned Magistrate has prejudicedthe! Defendant-appellant as he was not called upon at any time to meetan application for enhancement of maintenance under section 10 of theMaintenance Ordinance. There was also no material placed before theMagistrate to justify the order except the fact that the District Registrarhas thought fit to order the payment of a larger sum as maintenance forthe child. This fact, in my view, is not a sufficient reason to increasethe Order for maintonanco for the child to the same amount*
therefore, sot aside tho Order'of the Magistrate increasing themaintenance ordered for the child from Rs. 20/- to Rs. 45/- per month.If the Applicant makes a proper application to the Magistrate to enhancethe maintenance payable for the child, the Magistrate may make anappropriate Order thereon, after hearing the parties.
I direct the Magistrate to ascertain the arrears of maintenance payableby. the Defendant-appellant on the basis of tbis Order and to take steps for;the. recovery thereof. The Defendant-Appellant is entitled to the costs■ofthis Appoal which I fix at Rs. 31/50.
Appeal allowed.
1 (1957). 60 N. L. R. 66.