Jeeris Appuhatny v. Kodituwakku.
1947Present: Soertsz S.P.J. and Canekeratne J.JEERIS APPUEAMY, Appellant, and KODITUWAKKU, Respondent.
S.G. 37—D. C. Kandy, 180.
Civil Procedure Code, sections 621, 622—Action for dissolution of -marriage—Decreeabsolute—Application to increase amount of maintenance after decree absolute—Power of Court.
Section 622 of the Civil Procedure Code extends the jurisdiction of theDivorce Court as regards the custody, maintenance and education of minorchildren to applications made after decree absolute. The Court can thereforevary the provisions of the decree absolute in respect of these matters from timeto time as occassion ari.-os.
Appeal from a judgment of the Additional District Judge, Kandy.
H. W. Tambiah, for the defendant, appellant.
M. M. Kumarakulasingham, for the plaintiff, respondent.
Car adv. vualt.
November 11,1947. Canekebatke J.—
This is an appeal by the defendant from an order of the AdditionalDistrict Judge, Kandy, directing him to pay a sum of Rs. 65 a monthfor the maintenance of his son. A decree nisi was entered on April 19,1945, dissolving the marriage between the plaintiff and her husband,the defendant, on the ground of malicious desertion. After entrustingthe custody and education of the child of the marriage, Chandrasiri,about 13 years old, to the plaintiff it was further ordered by the decreethat the defendant should pay a sum of Rs. 25 a month for the main-tenance of the child and that this allowance should continue until furtherorder and s-hould be subject to variation as future circumstances mayrequire. The formal parts of the decree are in accord with form.No. 97 in Schedule 2 to the Code of Civil Procedure (Cap. 86, C. L. E.),The decree was made absolute on May 3, 1946. On June 7, 1946the respondent made an application for having the maintenance increasedto Rs. 65 a month : after .inquiry the Judge made order to that effect.
It was contended by appellant’s Counsel that the Court-had no powerunder section 622 of the Civil Procedure Code to make and order varyingthe amount of maintenance fixed by the decree absolute, the argumentbeing that there was a Casus Omissus and that a Court in entering adecree dissolving the marriage should fix the period for which maintenanceat a specified rate was payable. He argued that if a child required agreater sum than that fixed.by the Court for maintenance applicationshould be made in a Magistrate’s Court under the Maintenance Ordinance(Cap. 76, C. L. E.) ; to the counter argument advanced by respondent’sCounsel, that the maintenance proceedings can be taken only of therewas a default on the part of the father and that there would be no defaultso long as the sum fixed by the Matrimonial Court was paid, there washardly any satisfactory reply given by Counsel for the appellant. Thelatter also felt difficulty in suggesting any sensible solution as regards
CANEKERATNE J.—Jeeris Appuhamy v. Kodituwakku.
the effect of an order for custody except the unpractical one of applyingfor a writ of habeas corpus ; for this writ may no be available as a generalrule after the age of sixteen years. He also lefened to the provisionsof the present English law, t'.e., those under the Act of 1925 : hard byany aid can be furnished by these provisions.
Chapter 42 of the Code contains the main statutory provisions asregards matrimonial proceedings, as dissolution of marriage, nullityof marriage, judicial separation and incidental relief. These provisionsembody sustantially those contained in the Matrimonial Causes Actof 1857 as amended by the later Acts. The question at issued in thiscase depends on the correct interpretation of sections 621 and 622 ofthe Code. The language used in section 35 of the Matrimonial CausesAct of 1857 (20 and 21 Viet. C. 85) is repeated, with some alterationsnot material to this case, in section 621 of the Code. Section 621 givespower to the court to make such provisions as the Court deems properwith respect to the custody, maintenance, and education of the nimorchildren of the marriage in two cases:— (1) before making the decreeof dissolution absolute, the power being exercisable from time to tune:
in the decree absolute. It seems clear that when a Court exercises .its power on making a decree absolute, the decree would determine therights of the parties finally and it could not be vaiied for a Judge whenhe has pronounced judgment is functus officio and thereafter ceases tobe a- Judge so far as that case in concerned, and any order made by himor by his successor reversing or varying the first judgment cannot as ageneral rule stand. The difficult situation that would be created byan order made in the decree absolute became apparent the year afterthe Matrimonial Causes Act was passed. In Curtis v. Curtis1 the Judgestated—“ As I cannot vary a decree once made …. and circum-stances may hereafter arise which may render expedient and iust to makesome fresh order, I think that the most discreet course that I can pursueis to embody in the decree an order that the children shall remain inthe custody of their mother for three months ”—he suggested that anapplication should be made to the Lord Chancellor in the meantime.Parliament removed the difficulty the next year by the amending Act,the Matrimonial Causes Act of 1859 (22 and 23 Viet. C. 61). Section4 of this Act gave power to the Court to make oiders with respect to thecustody, maintenance and education of the children of the marriage.The language used in section 4 is substantially repeated in section 622of the code. It runs thus :—The Court after a decree absolute fordissolution … may, upon application by summary procedure
for the purpose, make from time to time all-such orders and provisions,with respect to the minor children2, … as might have beenmade by such decree absolute or …. or by such interim ordersas aforesaid. The jurisdiction of the Divorce Court as ‘regards thecustody, maintenance and education of the minor children is extendedto application made after decree absolute by section 622. It is givenpower from time to time to do certain things : the substantial effectof these words “ from time to time ” is to rebut the presumption that
1 27 L. J. P. 55 at p. 85.
1 The English Act uses the word children, not minor children.
Wulbert o. Zll/sa.
the power is exhausted by a single exercise of its power (see InterpretationOrdinance, Cap. 2, section 4, C. L. E). The power may be exercisedfrom time to time a.-, occa- ion requires. The Court was vested withpower to make such an order or provision with respect to the maintenanceof a minor child—as might have been made by “ such decree absoluteor by such interim orders as aforesaid ” ; one is thrown back on theearlier section.
The effect of the later section was to vest jurisdiction in the Court,after it had entered a decree absolute, to make such an order with respectto maintenance as it was entitled to make if the dispute had not reachedthe stage of finality under the earlier section, for circumstances mayarise rendering it necessary to vary the order. It is thus competent tothe Court after it had entered a decree absolute to make and order asregards the maintenance of a minor child. The words of the sectionmust be construed to give a sensible meaning to them.
The facts in Thomasset v. Thomasset1, the case referred to by Counselfor the respondent, show that an order for maintenance was varied inthat case. An order was made on August 8, 1893. about 15 monthsafter the decree for divorce, for payment of a specified sum of moneyto each of four children for their maintenance and education. On June1, 1894, on application made by the father and order was made that theallowance given to the eldest child should cease, as the child had attainedthe age of sixteen : the latter order was set aside by the Court of Appeal.
The appeal must, be dismissed with costs.
Soertsz S.P.J.—J agree.