089-NLR-NLR-V-54-HINNIAPPUHAMY-Appellant-and-WILISINDAHAMY-Respondent.pdf
SWAN" J.—Biinniappuhamy v. Wilisindahamy
373
1952Present: Swan J.
HINNIAPPUH A At Y, Appellant, and WILISIN’ D AH AM Y,Respondent
S. C. 461—-M.G. Galle, 1947
Maintenance Ordinance {Cap. 76)—Order for maintenance of child—Extension of suchorder—Scope of—Right of appeal—Sections 2, 7 and 17.
Appeal lies from an order made under the proviso to section. 7 of theMaintenance Ordinance extending the period of maintenance in respect ofa child to eighteen years.
A Magistrate has no jurisdiction to extend the period of maintenance if thechild has passed the age of sixteen on the date when the application for extensionis made.
j/^LPPEAL from a judgment of the Magistrate’s Court, Galle.
M. L. S. Jayasekere, with W. P. N. de Silva, for the defendant appellant.
A. W. W. Goonewardene, with T. Velupillai, for the applicantrespondent.
Cur. adv. vult.
November 17, 1952. Swan J.—
Learned Counsel for the respondent has raised a preliminary objectionto this appeal, to wit, that no appeal lies. In this connection he hasreferred me to Section 17 of the Maintenance Ordinance which providesas follows :—
“ Any person who shall be dissatisfied with any order made bya Magistrate under Section 2 or 14 may prefer an appeal to the SupremeCourt in like manner as if the order was a final order pronouncedby a Magistrate’s Court in a criminal case or matter, and Sections 338to 352 (inclusive) of the Criminal Procedure Code shall apply to suchappeal. ”
His contention is that the order was made under Section 7 from whichno appeal is allowed. Section 7 is worded thus :—
“ Ho order for an allowance for the maintenance of any childlegitimate or illegitimate, made in pursuance of this Ordinance shallexcept for the purpose of recovering money previously due under suchorder, be of any force or validity after the child in respect of whom itwas made has attained the age of sixteen years, or after the deathof such child :
Provided that the Magistrate may in the order or subsequentlydirect that the payments to be made under it in respect of the childshall continue until -the child attains the age of eighteen years,in which case such order shall be in force until that period. ”
In my opinion a subsequent order made under the proviso to Section 7is, in effect, an order made under Section 2 and an appeal lies therefrom.There can 'be no question that if, in the first order made, the time isextended to eighteen years the party dissatisfied has a right of appeal on
374
SWAN J.—Hinnixppulvamy v. Willsindahamy
every matter involved in the order—so that if by a subsequent order theMagistrate extends the period to eighteen years I think that an appeallies against the extension. In any event this Court has power to dealwith such an order in revision and this, I think, is an appropriate casefor the exercise of revisionary power.
The applicant obtained on 10.9.1951 an order of maintenance forherself and her child Jinadasa. On 31.3.1952 the case was calledon a question of arrears. On that date the Proctor for the applicantmoved that the order in favour of the child should continue till he attainedthe age of eighteen. A birth-certificate was produced which showed thatJinadasa was born on 9.12.1935. The learned Magistrate made orderallowing the extension asked for.
The point to decide is whether the Court had jurisdiction to extend theorder on that date because it is obvious that on 31.3.1952, Jinadasa hadpassed the age of sixteen.
In the case of Dona Rosaline v. Gunasekera1 Garvin A.C.J. wasconfronted with a similar situation. It was an order made under theOrdinance after the age limit was raised from fourteen to sixteen. In theoriginal order no time limit was fixed so that by operation of Section 7 theorder expired, or in other words ceased to exist, when the child attainedthe age of fourteen. Some time later the applicant moved under theAmending Ordinance, which inter alia raised the limit from fourteen tosixteen and added the words “ and subsequently ” to the proviso toSection 7, that the order be extended till the child attained the age ofeighteen. The Ordinance before it was amended empowered a Magistrateto make the order until the child was eighteen, but as the Section wasthen worded, the limit had to be fixed “ in the order ”. In the result theorder in that ease ceased to have any force or validity after the childattained the age of fourteen. This event had taken place before theAmendment came into operation. The learned Acting Chief Justiceheld that a Magistrate can extend an existing and enforceable order butcannot impose a fresh liability on a person whose original liability to paymaintenance had expired. In the case of Thangayam v. Chelliah2Soertsz J. held that a first application for a child could be made afterit had attained the age of sixteen. “If”, observed His Lordship,“ a Magistrate is empowered, in the first instance, to order maintenanceuntil a child attains its eighteenth year there does not appear to be anygood reason why a first application for maintenance could not be madebetween the age of sixteen and eighteen ”. The case of Dona Rosaline v.Gunasekera (2upra) was cited to Soertsz J. and he distinguished the factsfrom those with which he was dealing ; but he did not in any mannerexpress disagreement with or doubt the correctness of the view taken byGarvin A.C.J. With that view I entirely agree. From the plain andunmistakable language of Section 7 no other view seems possible. Inmy opinion the order of the learned Magistrate on 31.3.19o2 directingthe appellant to pay maintenance for Jinadasa till he attained the age ofeighteen was clearly ultra vires and I set it aside.
The appeal is allowed but in the circumstances I make no order as to
costs.Appeal allowed.
1 {1926) 13 C.L.W. 17.2 {1941) 42 N.L.R. 379.