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Present: Dalton and Akbar JJ.
JANE NONA v. VAN TWEST.
903—P. C. Kalutara, 28,856.
Maintenance—Applicant residing in Kalutara—Respondent in Colombo—Jurisdiction.
Where, in an application for maintenance on behalf of anillegitimate child bom to the respondent in Colombo, 'it appearedthat the .applicant (the mother) was residing at Kalutara withthe consent of the respondent.
Held, that the Police Court of Kalutara had jurisdiction toentertain the application.
ASE referred by Akbar J. to a Bench of two Judges. Theappellant was sued by the respondent in the Police Court
of Kalutara for the maintenance of her two sons, of whomthe appellant was the father. It appeared that the appellantbad kept the respondent as his mistress for a period of fifteen yearsin Colombo. Eight months prior to the application the respondentleft for Kalutara, with the permission of the appellant, as she hadobtained the post of a midwife under the Urban District Council.
Objection was taken by the appellant to the jurisdiction of thePolice Court of Kalutara.
N. K. Choksy, for appellant, argued the appeal on the preliminaryobjection to the jurisdiction of the Police Court of Kalutara.
The sum awarded as maintenance is not a “ fine ” or “ penalty ”under section 15 of the Criminal Procedure Code. It does not goto the revenue but is to be paid to the applicant.
The Maintenance Ordinance refers to the parties as “ Applicant ”and “ Defendant ” (section 12).
It is only certain specified sections of the Criminal ProcedureCode that are to be applied. It has been so held in the casescited.
No “ charge ” is to be framed (section 16).
The amending Ordinance, No. 13 of 1925, awards costs accordingto the Civil Procedure Code.
Under section 17 (as amended by Ordinance No. 13 of 1925)the party dissatisfied may appeal " as if the order was a final orderpronounced by a Police Court in a criminal cage or matter.”This shows, by implication, that they are not in fact criminalproceedings.
The former Ordinance, No. 4 of 1841, by section 3 (2) made thefailure to maintain an “ offence.” That section has now beenrepealed.
29J.S A 9487 (11/46)
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1929 Counsel cited the following authorities in further support';
JaneNonav- Kanangara l; Eina v. Eraneris2; Isobel v. Pedru PiUai3-;
v. Van Tweat Saboor Umma v. Coos Kanny*; Anna Perera v. Emaliano Nonis 8 ;
Bebi v. Tediyas Appu•; Elisa v. Jokino7; Menika v. Banda8 ;Podihamy v. Wickremesinghe .9
The same difficulty arose in India, and special provision had to bemade by the amendment of section 488 of the Criminal ProcedureCode.
In India too they have been held to be of a civil nature.
Sohom's Criminal Procedure Code, pp. 1178-9; 13 P. R. 1885.
In Benlow v. Benlow10 jurisdiction was conferred on the Courtwhere the husband resided.
In re Malcolm Castro11 jurisdiction was held to be in the Courtwhere the wife resided. That turned upon its own facts.
Counsel contended that the Civil Procedure Code could not beinvoked as the preamble stated that it only applied to Civil Courts.But in 3 Bal. Notes of Cases 55 it was decided that the PoliceCourt did not cease to be a “ Criminal Court ” when trying amaintenance case.
Don Simon v. Amolis12 was decided under the old Ordinancewhich made it an “ offence ” but which had been repealed at thedate of the decision in Rankiri v. Kiri Hattana.13
Counsel cited Weerasinghe v. Perera.1*
May 1, 1929. Dalton J.—
This case has been set down for hearing before two Judgesin view of the fact that the question that has arisen for decisionhad not always received the same answer in earlier decisions ofthis Court. We have now had the advantage of hearing acomprehensive argument on the point, in the course of whichall the earlier decisions have been reviewed.
The appellant was sued in the Police Court of Kalutara by therespondent for the maintenance of her two sons, of whom appellantwas the father. The evidence shows that appellant kept therespondent as his mistress for a period of fifteen years. Headmits the paternity of the two boys, who are stated to be twelveand seven years of age. He states, however, that they livedtogether in Colombo, where he lives now, and that the Police Court
' 4 N. t. ft. 121.
4N.L. ft. 4.
6 N.L. ft. 85.
12 N. L. ft. 97.
3 12 N. L. It. 263.
18 N. L. ft. 81.
’ 20 N. L. ft. 157.
' 25 S. L. ft. 70.
» 27N.L. ft. 93.10 24 Cal. 638.
“ 13 AU. 348.
12 3 S. C. C. 143.12 1 C. L. ft. 86.
» 4 C. L. Rec. 67.
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of Kalutara has no jurisdiction. The evidence shows that, someeight months prior to the proceedings, respondent came to Kalutara,.with appellant’s permission, as she had obtained the post of midwifeto the Kalutara Urban District Council. That, of course, neces-sitated her living where her work was to be done. Four monthsafter she went there, she says appellant took another mistressand failed to maintain his two sons, the younger of whom wasliving with her at Kalutara, the elder having been kept from hismother by the second wife or mistress of appellant. Sheaccordingly sued him for maintenance in the Kalutara Court.
The question to be decided on this appeal is whether theKalutara Court had jurisdiction to hear and decide her claim formaintenance for her children, or for the child residing with herat Kalutara, or whether the appellant’s objection that the caseshould be heard by the Court (Colombo), within the jurisdictionof which he resided, should be upheld. The Magistrate has appliedthe decision in Herft v. Herft1, a case of a claim by a wife formaintenance, to the question arising in this case, a claim formaintenance of an illegitimate child, but it seems to me thatdifferent considerations apply here.
As I decided Herft v. Herft (supra), I think it opportune tostate here that, as now advised, a view of the law taken by mein that case, a somewhat guarded view it is true; is wrong. Ithere stated that “ I am inclined to agree with Wendt J. in hisconclusion as regards the default to maintain being an offencewithin section 3 of the Criminal Procedure Code.” That opinionof Wendt J. is given expression to in Fernando v. Cassim.1 2 Fromthe numerous cases that have now been cited to us, it is clear thatalthough there are decisions (vide Rankiri v. Kiri Hattana3; SaboorUmma v. Coos Kanny*; Weerasinghe v.‘ Per era3 *) that wouldsupport Wendt J.’s conclusion, by far the larger number of cases,as set out here—Chivakannipillai v. Chuppramaniam6; Subaliya v.Kannangara1; Eina v. EranerisP; Isabel v. Pedru PiUai9; AnnaPerera v. Emaliano Nonis10 ; Bebi v. Tidiyas Appu11; Sampihamy v.Carolis12; Eliza v. Jokino13; Menika v. Banda.1*; Podihamy v.Wicbremesinghe15 (and I think I may properly add more authorita-tive decisions)—lead one to conclude that maintenance proceedingsare of a civil nature. I had the advantage when hearing Herft v.
129 N. L. R. 324.
(1903) 11H. L.R. 329.
2(1891) 1 C. L. Rep. 86.
(1909) 12 N. L.R. 97.
6 (1922) 4 C. L. R. 67.
(1896) 2 N. L. R. 60.
2 (1899) 4 N. L. R. 121.
» (1900) 4 N. L: R. 4.
» (1902) 6 N. L. R. S5.
(1908) 12 N. L. R. 263.
(1914) 18 N. L. R. 81.
(1914) 3 Bed. Notes 55.12 (1917) 20 N. L. R. 157.»* (1923) 25 N. L. R. 70.
»s (1924) 27 N. L. R. 93.
Jane Nona>. Van Tweet
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1929 Her ft (supra) of no such argument as we have now had from
Dalton J ^r" Choksy, and Wendt J. seems to have been in the same position ' when he heard Fernando v. Cassim, (supra).
J plc N£na t In the result then, in my opinion, one is not able to apply the1'provisions of section 3 of the Criminal Procedure Code to a failure
to maintain an illegitimate child, maintenance proceedings underOrdinance No. 19 of 1889 being of a civil and not a criminal nature.
If one is not able to go to the Criminal Procedure Code forassistance on the .question of jurisdiction, whither is one to go ?The Maintenance Ordinance itself is silent on the point. Here itmay be noted that the equivalent law in India has been amendedto remove all doubt on the question. No assistance is given bysection 3 of our Ordinance. On the other hand, as has beenpointed out before, the Maintenance Ordinance does not providea new remedy previously unknown to the law but merely providesa simpler, speedier, and less costly remedy which a woman iscompelled to take if she wishes to obtain maintenance for herselfand her children. In Subaliya v. Kannangara (supra.) Bonser C.J.points out that in his opinion “ the foundation of the jurisdictionof a Police Court in these matters is the civil liability alreadyexisting; the Ordinance simply provides a speedier process.”Wood Renton J. follows this exposition of the law in Anna Pererav. Emaliano Nonis' (supra) at p. 267, pointing out that since theenactment of the Maintenance Ordinance in 1889 it is no longercompetent for a woman to bring a civil action in this Colony torecover maintenance for herself and her children as a debt due tothem by the father, the Ordinance having superseded the Commonlaw. But if the Ordinance is silent on the question of jurisdiction,it would appear to follow that the answer to that question would befound in the law on the point as it existed at the time of theenactment of the Ordinance. The Civil Procedure Code (No. 2 of1889) provides, inter alia, by section 9, that an action shall beinstituted in the Court within the local limits of whose jurisdictionthe cause of action arises. Evidence has been led by the applicant(respondent) to show that she was employed and was residingin the Kalutara District with her younger son. In addition, inthis case it is shown that she was doing so with the consent of theappellant. Her younger son was properly in her care, and the ••appellant, so the evidence shows, refused to maintain him. Thecause of action therefore arises at Kalutara, where the claim has beenbrought, and the Police Magistrate has jurisdiction to hear thematter. This is in respect of the claim for maintenance of theyounger son. What is the position in respect of the elder sonis not made clear. He is apparently not in his mother’s custody,but in Colombo with his father. It does not appear whether ornot his father is failing to maintain him in Colombo. Normally
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one would take the custody and residence of an illegitimate childto be with its mother, but on the facts as disclosed on the recordat present that is not the case here in reBpect of the elder boy.If he is being kept from his mother by the father, but neverthelessis being maintained by him, the claim by the mother for main-tenance for him is at any rate premature.
The Court having jurisdiction to hear and decide part of theclaim brought, the appeal must be dismissed.
In viey of what I have stated above respecting the opinionexpressed by me on my earlier opinion in Herft v. Herft (supra)on the application of the provisions of section 3 of the MaintenanceOrdinance, I think it well to add that it does not follow that thedecision in Herft v. Herft (supra) was wrong. A wife’s residenceis normally with the husband, but circumstances may arise whereit is otherwise : the cause of action may then presumably arisein a jurisdiction other than that of the husband’s residence. SeeIn re Malcolm De Castro*. There are other cases in Indian Courts,some of which agree and others disagree with this authority, butthe matter is apparently now settled there by an amendingOrdinance.
Axbab J.—I entirely agree.
1 (1891) 13 AU. 348.
Jane Konav. Van Tweet
JANE NONA v. VAN TWEST