112-NLR-NLR-V-59-FRANCIS-FERNANDO-Appellant-and-VINCENTINA-FERNANDO-Respondent.pdf
522
' Fernando v. Fernando
3958Present:Sinnetamby, J.FRANCIS FERNANDO, Appellant, and V3NCENTINA FERNANDO,RespondentS. C. S73—M. C. Gampaha, 23,238
Maintenance. Ordinance {Cap. 76)—Order of maintenance obtained by wife underSection 2—Subsequent decree for divorce—Jtiqht oj the divorced wife to applythereafter for enhancement of maintenance under Section 10.
A divorced wife is entitled to mnko an application under section 10 of theMaintenance Ordinance to enhance an order of maintenance obtained by herunder section 2 prior to divorce.
3 {1916) 19 X. Is. n. 236.
SKXETA.1IBY, J.— Fernando v. Fernando
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-Appeal, from an order of the Magistrate’s Court, Ganipaha..
S. If. Jayasuriya, with Norman Abeysinghc, for the defendant-appellant.Carl Jayasinghe, with A. C. Krishnctrajah, for the applicant-respondent.
Cur. adv. vult.
March 7, 19oS. Sinxetamby, J.—
This is an appeal by a husband against an order of-the Magistrate madeunder section 10 of the Maintenance Ordinance enhancing the amountof maintenance payable by him to his wife. It would appear that afterthe order for maintenance was made there was entered in the DistrictCourt of Gampaha a decree for divorce in which an order for the paymentof alimony amoiniting to Es. SO was made in favour of the wife. Theapplication for enhancement under section 10 was made subsequent tothe decree in t he divorce case. The appeal was pressed only on the ground'that as by the decree of the District Court the applicant ceased to be awife she wa-s not entitled to invoke the provisions of the MaintenanceOrdinance.
I should at tins stage mention that a preliminary objection was takento the appeal on the ground that the order of the Magistrate was undersection 10 of the Ordinance and in view of the express provisions ofsection 17 the appellant was not entitled to prefer this appeal. In my •opinion the preliminaiy objection is entitled to succeed but in view ofthe importance of the questions raised I propose to deal with the casein revision.•
Two cases were referred to by the learned Magistrate in the course ofhis order, viz. Peiri-s v. Peiris1 and Fernando v. Amarasena -. InPieri-s v. Pieris a decree for separation had been entered and it was heldthat the wife was entitled to bring a maintenance ease claiming main-tenance for herself and her child. In Fernando v. Amarasena the claimwas by a divorced wife in respect of her legitimate child for which anorder for maintenance had been made in the divorce proceedings : noclaim was made on behalf of the " wife ”. The difficulty the learnedMagistrate had was that in the present case the application is made bya wife who had been divorced and was no longer a “ nife ” in the eyes ofthe law.
Even if ono confines oneself to a strict interpretation of the wordsused in the Ordinance it becomes clear that an application undersection 10 for enhancement can be made by a “ wife ” who has, in theperiod intervening between the order for maintenance in her favour andthe application for enhancement, been divorced.
It is section 2 of the Ordinance which enables a wife to obtain an orderin her favour. At that stage she has to be a icife in order to succeed.
It is not necessary, however, for the purposes of this case to decide
1 {1910) 45 X. R. R. IS.2 {1913) 45 X. R. R. 25.
524
SINNETAMBY, J.—Fernando v. Fernando
whether a " wife ” who has obtained a decree for dirorce can thereafterapply for maintenance under this section. An order once made in favourof a wife continues to be in force, at least so far as the provisions of theMaintenance Ordinance are concerned, until it is cancelled under section 5or under section 10. It would appear on a first reading of these sectionsthat an order under section 5 can only be made against a wife on theapplication of a husband as the section expressly uses the words “wife”and “husband”. Indeed, having regard to the provisions of section 5intrinsically there is much to be said in favour of this interpretation.
Section 10, may be advisedly, avoids using the words “ wife ” and“ husband ” and provides that any “person receiving or ordered to paya monthly allowance ” may apply for cancellation or alteration. Itwould thus be reasonable to hold that once an order for maintenanceunder section 2 has been made in favotir of the wife it continues in forceuntil it is cancelled or varied under section 10 irrespective of all otherconsiderations and irrespective of whether there has since come intoexistence a decree for divorce. In my opinion it is open to a divorced“ wife ” to apply for enhancement under section 10 just as much as itis open to a divorced husband to apply under it for a cancellation.
. Section 10 of the Ordinance permits an order to be made “ on proofof a change in the circumstances”. A decree for divorce would certainlybe a change in the circumstances and if in the divorce case the husbandis found to be the guilty spouse surely that should not place him in aposition of advantage and enable him to claim that the decree for divorceipso facto wipes out the order for maintenance. Similar though some-what different provisions of the Summary Provisions (Married Women)Act of 1S90 were interpreted in the ease of Bragg r. Bragg x. Section 5of this Act provides “ that the husband shall pay the applicant ….a weekly sum ” etc.' Section 4 provides that only a “ married w oman ”can make the application. Section 7 which corresponds to our section 10provides that a Court of Summary Jurisdiction may upon fresh evidencevary or cancel the order. This is subject to this proviso :
“ If any married woman upon whose application an order shallhave been made under tills Act ” and so on, “ shall voluntarily resumecohabitation with her husband or shall commit an act of adulterysuch order shall, upon proof thereof, be discharged. ”
In appeal the Court held that the decree for divorce does not ipso factodischarge the order for maintenance and that an order of discharge in anappropriate case can only be obtained by an application under section ”7of the Act. This case favours the construction I have placed on section 10of our Ordinance.
I am accordingly of the view that a divorced wife is entitled to makean application under section 10 of the Ordinance to enhance an order ofmaintenance obtained by her prior to divorce under section 2. Theorder of the learned Magistrate 13 affirmed. The appellant “ husband ”wdll pay the respondent the costs of this application.
Appeal dismissed.
1 41 Times L. It. S.■