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EINA v. ERANERIS.P.C., Balapitiya, 20,220.
Maintenance—Scope of the Maintenance Ordinance—Position of the Defendant—
Nature of order of Magistrate dismissing application for maintenance—
Appeal therefrom to the Supreme Court.
The Maintenance Ordinance is not one dealing with criminal matter,but it provides a speedy and less expensive way of enforcing a civilobligation resting on the father of a child, whether bom in or outof wedlock, to maintain it.
Maintenance cases, being civil in their nature, should be decidedaccording to the balance of evidence, and not on the footing that theinnocence of the “ accused ” is to be assumed until the contrary isproved.
Maintenance is usually given to the mother on behalf of the child,but if she is unfit to receive the allowance, the Magistrate may order itto be paid to a person more fitted to have the care of the child.
Semble, per Bonsbb, C.J.—A Magistrate’s order dismissing the appli-cation for maintenance is an appealable order.
Selestina o. Perera (2 C. L. R. 88. and 1 S. C. R. 224) questioned.
HIS was a case of maintenance. The Police Magistrate,
after hearing some evidence, made order as follows: “ I dis-“ charge the accused. The evidence does not warrant me in“ making an order of maintenance.”
The petitioner applied to the Supreme Court to call for therecord and consider the case in revision, because (1) she wasadvised that no appeal lay against any order on the part of thePolice Magistrate refusing to make an order in the case; and (2)there was ample evidence that the defendant was the father of thechild and had failed to provide for its maintenance.
Browne, A.J., after calling for the record and perusing it,directed the case to be listed for revision and notice thereof toissue to the defendant. The Police Magistrate was also requested“ to inform the Court why he considered the evidence did not“ justify his convicting the accused. ”
The Police Magistrate submitted a report, in which he reviewedthe evidence and concluded as follows:—
" I do not think the evidence is sufficient. Possibly the child“ may be the respondent’s. He certainly never maintained it, as“ he is said to have deserted applicant immediately after the birth.“ I think it very doubtful, too, if he maintained applicant before“ the birth. The two parties live closely together and they are'• relations. Doubtless respondent visited applicant’s house and“ had meals with the family, but to construe this as keeping the” applicant is unjustifiable.
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“It is oi course bard on applicant, if the respondent is the“ father of her child. But 1 regard the Maintenance Ordinance as“ especially made for those unfortunate women who have lived“ with a man for years to all intents and purposes as his wife and“ then been deserted, and not for those who have received visits in“ their own house by a young man and have conceived a child, and“ then been abandoned by their paramour. In such cases, mainte-“ nance is not given. It is mere seduction, and not maintenance.“ In such cases, I regard the woman as being to blame as much as“ the man. It is their own incontinence that is at fault, an incon-“ tinence such as I do not think the Maintenance Ordinance is“ meant to encourage.
“ Certain suspicions have been cast on applicant’s character“ sufficient at any rate to show she was open to temptation, though“ not enough to show her as a loose woman.
“ The respondent should have the benefit of the doubt. Not“ believing the evidence, it was unnecessary for me to call upon“ the defendant.”
The case in revision came on before the Chief Justice on the15th June, 1900.
Allan Drieberg appeared for the applicant. [Bokseb, C.J.—Why was there no appeal in this case?] Because the PoliceMagistrate was supposed to have made no order in the case.Selestina v. Perera (1 S .0. R. 224 and 2 G. L. R. 88), decided byBurnside, C.J. (1892), shows that an order dismissing an appli-cation for an order of maintenance is not appealable by theapplicant, as the order amounts to an acquittal. [Bonser, C.J.—Mr. Justice Lawrie dissented, and his opinion seems to me to beclearly right. What is the ground of revision?]
After hearing applicant’s counsel his lordship called uponrespondent.
Jayawardena, for respondent, referred to section 17 of theMaintenance Ordinance, and section 407 of the Criminal Proce-dure Code, 1883, and contended that the order amounted to anacquittal, and the sanct^n of the Attorney-General was necessaryfor an appeal.
Bonser, C.J., discharged the order made by the PoliceMagistrate, and remitted the case for trial in the followingjudgment:—
This is a case which has been set down for hearing inrevision by Acting Justice Bbownb. The application was one
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1900. under Ordinance No. 19 of 1889, by the mother of an illegitimateJune 15.child for an order against the alleged father for a monthly allow-
Bonseb, C.J. ance for the maintenance of the child. The mother ■ swore thatthe defendant was the father of her child, and she called variouswitnesses to corroborate her as to the fact of the intimacybetween them. The Magistrate, without calling upon the defend-ant for his defence, made an order refusing the application. Theonly reason he gave was this: ‘ ‘ The evidence does not warrant” me in making an order for maintenance. I discharge the“ accused.” The Magistrate was called upon to make any observa-tions he might have to offer on the ease, and after reading hisobservations I think he has entirely misconceived the scope ofhis Ordinance.
As I said before, this Ordinance is not one dealing with a crimi-nal matter, but it provides a speedy and less expensive way ofenforcing a civil obligation, which under the Common Law of theIsland rests on the father of an illegitimate child. The law says thatevery father is bound to maintain his children, and that irrespec-tive of the fact whether they were born in lawful wedlock or not.He is the efficient cause of these children being brought into theworld, and it is his duty to see that they do not become a burdento the community. The Police Magistrate has evolved a theoryof the object and scope of this Ordinance which is peculiar tohimself. He says in the course of his observations: “ I regard the“ Maintenance Ordinance as especially made for those unfortunate“ women who have lived with a man for years to all intents and“ purposes as his wife and then been deserted, and not for those” who have received visits in their own house by a young man” and have conceived a child, and then been abandoned by their” paramour. In such cases maintenance is not given. It is mere“ seduction, and not maintenance. In such cases, I regard the“ woman as being to blame as much as the man. It is their own“ incontinence that is at fault, an incontinence such as I do not“ think the Maintenance Ordinance was meant to encourage.” If thePolice Magistrate had read the Ordinance with any care, he wouldhave seen that the allowance is not to be made for the benefit ofthe woman. No doubt, in most cases, she makes the application,being the person most nearly concerned in the welfare of herchild, but the Ordinance is careful not to give her any interestwhatever in the monthly allowance. The maintenance is to begiven for the child, and it is not necessary that it should be paidto the mother at all. If the mother is unfit to receive it, theMagistrate may order it to be paid to a person more fitted to havethe care of the child. The Ordinance provides for maintenance
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to be paid to such person as the Magistrate from time to time 1800.may direct. So that the observations of the Magistrate are beside Jane 16.the point and are based on a complete misconception of the object Bonsbb, O.J.of the Ordinance. Holding those views and looking at the matteras personal benefit sought by the woman, whom the Magistrateseems to regard as in some way a joint tort feasor, it is no wonderthat he has arrived at the conclusion he did.
And, again, from his language, in which he speaks of thedefendant as an accused, it seems to me that he approached thiscase in a wrong spirit. Instead of regarding this as a civil matterto be decided according to the balance of evidence, he treated itas a criminal matter, in which the innocence of the accused is tobe assumed until the contrary is conclusively proved.
The proper order to make will be to discharge the order madeby the Police Magistrate and to remit the case for trial. Probablyit would be more satisfactory that it should go before a Magistratewho has formed no opinion on the case, and I send it back to betried by the Police Magistrate of Galle.
I see that the complainant did not appeal. That was probablydue to the report of a case contained in 2 C. L. B. 88, where themajority of the judges of this Court were of opinion that no appeallies from an order dismissing the application for maintenance.
But that case is of no authority, for it is stated in the report thatit was decided without argument, and the utmost, therefore, itcan claim is to be regarded as a pious opinion. I see that ChiefJustice Burnside there said: “The Police Magistrate said the“ application is dismissed, and I construe that to mean ‘ I make no“ order.’ ” I should prefer to construe it to mean “ I make an order“ dismissing the application,” and I should say an appeal did lie.
But that is merely an obiter dictum, for the point has not beenargued before me. At the same time I wish to place on record myopinion that the question is still open, notwithstanding thatreported decision.