008-NLR-NLR-V-45-FERNANDO-Appellant-and-AMARASENA-Respondent.pdf
Fernando and Amarasena.
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1943Present: Keuneman and Jayetileke JJ.
FERNANDO. Appellant, and AMARASENA, Respondent.
685—M. C., Colombo, 17,287.
Maintenance—Application for order under the Maintenance Ordinance—Decreefor alimony in the District Court—No bar to order for maintenance—Maintenance Ordinance (Cap. 76) s. 2.
The jurisdiction of a Magistrate to grant an order for maintenanceof a child under section 2 of the Maintenance Ordinance is not ousted;ny a decree for alimony passed by the District Court in favour of theapplicant and the child in an action for divorce brought by the applicantagainst the respondent.
Petris o. Peiris (45 N. L. R. 18) followed.
T
HIS case was referred to a Bench of two Judges under section 38 ofthe Courts Ordinance in view of two divergent decisions of the
Supreme Court.
L. A. Rajapakse (with him if. Deheragoda), for the applicant,appellant.—The question for consideration is whether an order madeby the District Court, in the exercise of its matrimonial jurisdiction, forthe maintenance of the children of a marriage operates as a bar to arcapplication for their maintenance under the Maintenance Ordinance(Cap. 76). The petitioner in this case is asking for maintenance in respectof her child, aged 2 years. In the earlier divorce case it was ordered bythe District Court that the respondent should pay Rs. 15 as alimony andmaintenance for the wife and child. Of this sum not even a cent has-been paid.
There are two conflicting decisions—Aryanayagam v. Thangamma1 andPeiris v Peiris2. In Aryanayagam v. Thangamma certain importantIndian decisions were not considered. It is submitted that the-jurisdiction of the Magistrate under section 2 of the MaintenanceOrdinance is not ousted by a decree of a civil Court so long as the re-spondent neglects or refuses to maintain the child. The important pointis not that there is a paper decree for maintenance but whether there is aneglect or refusal to maintain. Nor can it be contended that the decree-in the matrimonial suit operates as resfudicata. It is only by accidentthat the mother of the child is the petitioner in the present case; anyother person could have made himself the petitioner on behalf of thechild. Moreover the cause of action in the divorce suit was the maliciousdesertion of the spouse, andthemaintenance awarded tothe childwas
only an incidental relief. Therealquestionin the presentcase is. oneof
.jurisdiction. See Peiris v. Peiris (supra); In re Mohamed AliMithabhai3; Kent v. Kent*; In re Taralakshmi Manuprasads; Saras-wathi Debi v. Narayan Das Chatterjee*.
Nihal Gunesekera, for the respondent.—The question of res judicatadoes arise in this case. The order of the District Court awarding main-tenance is the order of a Court of competent jurisdiction and is a bar to
1 (1939) 41 N. L. R. 169.* A. I. R. (1926)Mad. 59.
(1940) 45 N. L. R. 18.6 A. I. R. (1938)Bom. 499.
A. 1. R. (1930) Bom. 144.6 A. I. R. (1932)Cal. 698.
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KEUNBMAJST J.—Fernando and Amarasena.
separate proceedings on the same subject-matter. Aryanayagam v.Thangamma (s-upra) is applicable to the facts of this case. The morerecent of the Indian decisions purport to follow Kenp v. Kent (supra), .butin the latter case the earlier order regarding maintenance had been madein England and not in India, and it is difficult to understand the ratio.decidendi. Saraswathi Debi v. Narayan Das Chatterjee (supra) can be•cited in respondent’s favour. See also In re Ghandulal Ranchhod1 ■
Even if the Magistrate’s Court has concurrent jurisdiction with theDistrict Court the principle of election would apply, and, once one of two. -concurrent Courts is selected by a party he must exhaust the possibilities-of the remedy obtained there.
Li. A. Rdjapakse.—The argument that there cannot be two concurrent■enforceable orders for maintenance was put forward in BirminghamUnion v. Timmins2 but was not accepted.
Cut. adv. vult.
November 25, 1943. Keuneman J.—
This case has been referred to us under section 38 of the Courts Ordi-nance for the determination of a question of law, in view of two divergent.decisions of this Court. The facts are as follows: The applicant was thewife of the respondent, and applies here for maintenance on behalf ofher legitimate child. In the earlier divorce action, the respondent wasordered to pay Its. 15 as alimony and maintenance for the applicantand the child. It is clear that nothing has been paid by the respondentunder that order. The respondent claims that the jurisdiction of theMagistrate has been ousted by the previous order of the District Courtrelating to the maintenance of the child.
In the argument before us, respondent’s Counsel urged that the principleof res judicata applied. I do not think this argument is maintainable.The issue involved in the civil case is not the same as that in the main-tenance case, and, further, in view of the fact that the applicant in themaintenance case need not necessarily have been the mother, it is doubtfulwhether the parties can be regarded as identical. I think the realquestior is whether the jurisdiction of . the Magistrate has been oustedby the order in the divorce case.
Under section 2 of the Maintenance Ordinance (Cap. 76), “ If any■person having sufficient means neglects or refuses to maintain his wifeor his legitimate or illegitimate child ”, the Magistrate may order him-to make a monthly allowance for that purpose. In the Ordinance-several grounds are set out on which this order will be refused, but the-existence of a prior order in a civil case is not one of the grounds.
Counsel for respondent desires us to follow the ruling of de Kretser-J. in Aryanayagam v. Thangamma3, namely:
“ So long as the order of the District Court remains, it is the orderof a Court of competent jurisdiction and, on general principles, itought to be a bar to separate proceedings on the same subject-matter.”
In arriving at this decision de Kretser J. depended mainly on the case ofSubbaramakkamma, Petitioner (2 Weir p. 615). The case itself is not
1 A. I. R. {1919) Bom. 110.a i. R- {1918) 2 K.B. 189.
s (1939) 11 N. L. R. 169.
KECNEMAN" J.—Fernando v. A marasena.
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av ailable here, and we have only the 'reference to it in later cases and inSohoni's Code of Criminal Procedure. In the 1931 edition of Sohoni the-decision is set out as follows: —
"A woman is not entitled to an order under this section from a
Magistrate, when a decree for maintenance obtained by her in a civil
Court is in force.”
The section referred to is section 488 of the Criminal Procedure Code ofIndia, which is very closely akin to section 2 of our MaintenanceOrdinance.
The attention of de Kretser J. was not drawn to the fact that thereare later Indian cases dealing with this point. He only refers to aBombay case, which I shall have occasion to refer to later. In that casethe civil decree could not be executed by the wife owing .to the insolvencyof the husband, and in the circumstances it was held that the Magistratecould act under section 488.
The same point came up for decision later in Ceylon before Soertsz J.(see Feiris v. Peiris {supra,).) In this ease also after the wife had obtaineda decree for judicial separation and alimony, the husband was adjudicatedinsolvent. Soertsz J. referred to the Bombay ease I have mentioned,namely, In re Mohamed Ali Mithabhai1 where it was held that in thecircumstances I have mentioned the decree of the civil Court was merely" a paper decree ”, which could not be executed on account of thependency of insolvency proceedings. Patkar -J. added ‘‘ A mere decreeof a civil Court awarding maintenance is not equivalent to maintainingthe wife ”.
Reference was made in this case and also by Soertsz J to the case ofKent v Kent2. There Devadoss J. emphasised the language of section488 and pointed out that what had to be proved to the satisfaction of theMagistrate was “ that the husband had neglected to maintain his wife ”,.and where that was proved, the Magistrate had jurisdiction. The-decree in the civil case was for certain reasons not executable but Devadoss-J. added, “ Even if held to be executable, I am of opinion that so long asthe husband does not maintain the wife either by payment of alimonyor otherwise, the Magistrate’s jurisdiction to order him to pay is nottaken away ”. The case in Weir’s Reports was differentiated. Inanother part of his judgment Devadoss J. said “ A mere order for main-tenance is non-equivalent to maintaining the wife, and the order whatevermay be its force or nature cannot take away the Magistrate’s jurisdictionso long as the husband neglects or refuses to maintain the wife
Soertsz J. in the case before him came to the conclusion that theexistence of the civil decree for alimony was no bar to the exercise of theMagistrate’s jurisdiction to grant an order for maintenance.
In the case of Saraswathi Debi v. Narayan Das Chatterjee3 Mitter J-approved of the decision in Kent v. Kent (supra)., The case, however,related to an agreement outside Court by the husband to maintain the-wife. This was held not to be sufficient to oust the jurisdiction of the-Magistraie.
i A. I. R. [1930) Bom. 144.2 A. I. R. [1926) Mad. 59.
3 A. 1. R. [1932) Gal. 698.
ZtS
KEUNEMAN 3 J=-Jf'emando and Amarasena.
F'lrthei, in the ease of In re Taraldkshmi Manuprasadv the factswere as follows: —A compromise decree was passed in a civil suitbrought by the husband for restitution of conjugal rights, whereby itwas provided that a certain sum was to be paid for arrears of■maintenance, and that the husband should pay Us. 15 a monthfor maintenance of the wife, and Tts. 5 a month for the maintenance of thedaughter, and that a previous order made under section 488 should be•cancelled. The order already made under section 488 was accordinglycancelled. The husband paid the arrears of maintenance under thecivil decree, but failed to pay the subsequent maintenance. In thecircumstances, the wife applied for a fresh order under section 488. Itwas held by Beaumont C.J. that the jurisdiction of the Magistrate was•not ousted. In his judgment Beaumont C.J. said:
“ Section 488 contains no direction that an order under that sectioncannot be made if there is a decree for maintenance of a civil Court,although under sub-section (4) conditions are specified under whichan order cannot be made. Of course the existence of a decree of acivil Court is relevant when the Magistrate is considering what formor order he should make under section 488, but in our opinion themere existence of a decree of a civil Court does not oust the jurisdictionof a Magistrate in a proper case to make an order under section 488.It seems to us wrong in principle to allow the husband in this case totake advantage of the decree which, he has made no attempt to carryout. We think therefore that the case must be sent back to the learnedCity Magistrate to be dealt with on the merits. It is for him to•consider whether there is any evidence which would bring the caseunder sub-section (4) and if he comes to the conclusion that an orderfor maintenance should be made, he ought to make it clear in hisorder that anything paid under the decree of the civil Court will betaken into account against anything which he may order to be paid.That is a mere question of the form of the order. In our view the existenceof the decree of the civil Court does not oust the jurisdiction of theMagistrate ”.
.In my opinion, the later Indian decisions set out the true principlewhich we should follow. Where all that is showu is the existence ofa decree of a civil Court, that is no bar to the exercise of jurisdiction bythe Magistrate. Of course it is open to the husband to show that he ismakinp payments under the civil decree and therefore has not failed orneglected to maintain the wife and children. In the present case the'husband (respondent) has made no attempt to comply with the civildecree against him. I therefore set aside the order of the Magistrate and-send the case back to him to make an appropriate order under theMaintenance Ordinance. The Magistrate will bear in mind the warninggiven by Beaumont C.J. as to the form of the order, and will not losesight of the fact that the order of the District Court relates both to tbe■wife and to the child.
The appellant is entitled to the costs of the appeal.
Jayetileke J.—1 agree.
Appeal allowed.
1 A. 1. R. (1938) Bom. 499.