JEYASINGHAM v. JEYASINGHAM

013-SLLR-SLLR-1981-2-JEYASINGHAM-v.-JEYASINGHAM.pdf


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Sri Lanka Law Reports
(1981) 2 SLR.
JEYASINGHAM
v.
JEYASINGHAM
COURT OF APPEAL
COLIN-THOME. P. AND ATUKOFlALfc. J.
C. A. APPLICATION (REVISION) 86/81 FAMILY COURT, KAYTS 6345.
JULY 14, 1981.
Maintenance — Issue o1 warrant of arrest in maintenance proceedings in first instance —Whether Judge nt the Family Court empowered to do so without issuingsummons – Requirement that reasons be recorded in writing- Whether failure to complytherewith a defect that goes to jurisdiction—Maintenance Ordinance (Cap. 91) asamended by Act No. 19 of 1972. section 15—Code of Criminal Procedure Act, No. 15of 1979, section 63 (1 i – Interpretation Ordinance (Cap. 2), section 16 (1) —JudicatureAct, No. 2 of 1978, as amended by Act No. 37 of 1979, sections 24, 29.
Held
The Family Court is now vested with jurisdiction to hear and determine maintenancecases by virtue of section 24 of the Judicature Act. No. 7 of 1978; and section 29 (2) ofthe said Act (as amended by Act No. 37 of 1979) enacts that the provisions of theMaintenance Ordinance shall be deemed to apply to the institution and conduct of suchproceedings. Accordingly by virtue of section 15 of the Maintenance Ordinance (readwith section 16 (1) of the Interpretation Ordinance), the provisions of section 63 (1) ofthe Code of Criminal Procedure Act, No. 15 of 1979, applies to these proceedings and aJudge of the Family Court has the power (o issue a warrant of arrest in maintenanceproceedings without issuing summons in the first instance.
In such a case the failure on the part of the Judge to record his reasons in writingbefore the issue of the warrant does not make it invalid'but only amounts to anirregularity in the exercise of a power vested in the Court. It is not a jurisdictional defectwhich would vitiate the subsequent proceedings in Court.
Case referred to
(1) Perera v Commissioner of National Housing, (1974) 77 N.L.R. 361.
APPLICATION to revise Orders of the Family Court, Kayts.
K. Kanag-lswaran, with K. V. Mahcnthiran, for the petitioner.
V. S. A. Pullenayagam, with S. Navaratnam, for the respondent.
Cur. dilv. vu!t.
August 18, 1981.
ATUKORALE, J.
The petitioner in this application invokes the revisionary powersof this Court to examine the legality of and to cjuash the ordersmade on 7.1.1981 by the learned Judge of the Family Court ofKayts in Case No. 634b instituted by his wife, the respondent.
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praying for an order of maintenance in her favour. The petitioneris a citizen of Malaysia carrying a Malaysian passport. His father isa Sri Lankan citizen who now lives in retirement at Karainagar inSri Lanka. In August 1959 the petitioner proceeded to the UnitedKingdom for further studies and has since then been a permanentresident there. He married the respondent (a Sri Lankan housewife)on 11.2.1978 in Sri Lanka. After marriage they lived in Sri Lankafor about 15 months till May 1979 when the petitioner returnedto the United Kingdom to continue his studies. The respondentremained in Sri Lanka. The petitioner alleges that the respondent,instigated by her parents, refused to join him in U.K. on theground, inter alia, that he was unemployed and that since thenthey have been living apart. In December 1980, he states he cameto Sri Lanka to visit his aged, parents and on 29.12.1980 he wentto his parental home at Karainagar. On 6.1.1981 at about 2.30p.m. whilst he was at his parental home some police officersarrested him and took him to the Magistrate's Court, Kayts,stating that they had a warrant for his arrest. At the courtpremises they told him that the Magistrate had adjourned courtfor the day and took him to the police station and detained himthere. His request to contact a lawyer was refused by the policeofficers. He was kept in a cell that night and the following morning(7th) he was produced before the Judge to whom he complainedthat he had been wrongfully arrested on a warrant and humiliatedby being detained in the police cell overnight although he hadcommitted no offence. The Judge then informed him that he hadcommitted a 'criminal offence' and that therefore a 'benchwarrant' was issued for his arrest. He inquired from the Judgewhat the offence was to which the Judge replied 'regardingmaintenance'. He then protested to the Judge that it was a 'civilmatter' and that he had received no notice of any proceedings atall. Thereupon the attorney-at-law for the respondent madesubmissions and demanded that he be ordered to pay Rs. 1,000per month as maintenance. The Judge then ordered that,
the petitioner must pay Rs. 700 per month to therespondent,
he must deposit a deed in Court in respect of a propertyworth Rs. 25,000 or cash Rs. 10,000 as security againstdefault of the monthly payment, and
he must sign a bond for Rs. 50,000 with his father assurety in case he absconded.
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The Judge ordered him to carry out these directives the followingday (8th) and to report to Court with his passport. The bond forRs. 50,000 was signed by him and his father. On the 8th when hereported to Court the Judge examined his passport and told himthat he was a foreigner and ordered him to report to Court on the9th morning. On the 9th morning the respondent's attorneysubmitted to Court that his passport should be impounded. TheJudge then asked him to surrender his passport in the afternoon asthe deed had not been deposited by then. The Judge furtherordered that the first payment of Rs. 700 to the respondent bemade on the 13th. The same afternoon (i.e., 9th) the deed wasdeposited in Court. The 10th and the 11th were Saturday andSunday respectively. On the 13th, as previously ordered, thepetitioner reported to Court and he had to hand over a sum ofRs. 700 to the respondent before the Judge in his chambers.The judge then ordered him to appear in court on 6.2.1981. Heinformed the Judge that his visa which was granted for one monthexpired on 22.1.1981 and that he had to leave the country beforethat. The Judge then told him that his father should appear inCourt on 6.2.1981 to represent him. The petitioner avers in hispetition and affidavit that the aforesaid treatment meted out tohim, an alien, who was unfamiliar with the judicial system of SriLanka, came as a shock and has caused him severe psychologicaltrauma and great pain of mind and distress. In this state of affairshe states that he was advised to seek relief in this Court. With aview to vindicating his name and honour and to remedying thegrave injustice caused, he states that he has, with considerabledifficulty, obtained an extension of his visa to enable him torepresent matters to this Court and to obtain redress.
The petitioner had appended marked B (together with anEnglish translation thereof marked B1) a certified copy of theproceedings of the Family Court in question. He states in hisapplication that he has noted from a perusal of the English trans-lation (B1) that the order for maintenance made by the Judge on
is recorded as one which has been made with his consentand to which he has subscribed his signature at the end. He aversthat he has no recollection whatsoever of having either consentedto this order or having signed the record on that day. He furtherstates that "if, however, the petitioner's memory has failed him,such consent and the said signature were not the acts of thepetitioner's own tree will considering the state in which thepetitioner was that morning." In his application to this Court he
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has set out six grounds on which he seeks to set aside the ordersof the learned Judge made on 7.1.1981. Of them those which, onthe submissions made to us by learned cousel appearing for him,appear to be relevant for a determination of the matter in issuebefore us are as follows:
the orders are contrary to law;
{/>) the Court acted without jurisdiction and was withoutcompetence to assume jurisdiction over the petitioner andmake the several orders complained of;
the proceedings initiated by the issue of the 'benchwarrant' without the service of process provided for bylaw renders the said proceedings null and void and of noeffect in law;
orders made pursuant to such illegal arrest are themselvesillegal and of no force or effect in law.
In her statement of objections the respondent, whilst admittingthat the petitioner is now a final year accountancy student, statesthat his credentials as a student do not disclose that he has everbeen a serious student for on his own admission he had venturedupon a course in accountancy in 1959 and remains still a finalyear student in 1981, at the age of 43 and after a lapse of 22years. She states that at the time of marriage the petitionerinduced her and her parents to believe that he was a fully fledgedAccountant and that to this extent he made a false declaration tothe Registrar of Marriages at the time of the marriage registrationas is evidenced by the marriage certificate (R1) which stipulatesthe petitioner's profession as 'Accountant'. The respondent furtheravers that after their marriage the petitioner in April 1979 left for
U.K. promising to send her immediately a prepaid ticket to joinhim. She got her travel documents ready, wrote to the petitionerand kept on writing to him for the prepaid ticket but far fromsending the ticket to her, he failed even to reply to any of herletters causing her much dismay and disappointment. In December1979 the petitioner returned to Sri Lanka and on hearing that hewas at his parental home at Karainagar she went to his residenceand lived with him till 5.1.1980 when he left again for U.K.refusing to take her with him. He again neglected to reply to anyof her letters entreating him not to treat her with indifference andurging him to arrange for her to join him there. She states that hisulterior motive became clear when in Juiy 1980, on his
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instructions, his solicitors, Messrs. Davis Campbell & Co. ofLiverpool, wrote letter R3 to her statihg that it would be possiblein May 1981 to file a petition of divorce in England based on thefact that their marriage had broken down irretrievably as, accordingto her husband, they had not lived together since May 1979 andseeking her consent to a decree for divorce. She replied refusing toconsent to a divorce and stating that she would resist any suchmoves. In December 1980 when the petitioner visited her parentsin Sri Lanka the elders in the village met the petitioner on herbehalf with a view to persuading him to take her and to make ahappy home either here or in U.K. He however bluntly refused toagree and asked them to mind their own business and not tointerfere in his family affairs. Feeling desperate and helpless shethen sought legal advice as to the remedy she could legally obtainwhen, on hearing of this, the petitioner with a view tocircumventing any legal process made arrangements to leave thecountry immediately. She avers that on 6.1.1981 she institutedthe said Case No. 6345 in the Family Court of Kayts praying foran order of maintenance and also for a warrant of arrest againstthe petitioner to ensure that the action may not be renderednugatory by the petitioner's premature departure. The respondenthas appended to her statement of objections a certified copy ofthe application filed by her in Court on 6.1.1981 (the same dayas the application for maintenance) praying for the issue of awarrant of arrest against the petitioner. This certified copy ismarked R4. The certified copy of the proceedings tendered tothis Court by the petitioner—B and 81—do not contain thisapplication for the issue of a warrant.. Be that as it may, therespondent states further in her statement of objections that thelearned Judge after a consideration of her application and thesubmissions made by her counsel (Mr. Srikantha) ordered the issueof a warrant of arrest against the petitioner returnable the followingday (7th). She further states that the petitioner has in the presentapplication to this Court grossly misrepresented what in facttranspired in the lower Court. According to her, on the 7th whenthe case was called in Court the petitioner was present and wasrepresented by Mr. Kathiravelu, a senior attorney of the KaytsBar. The petitioner admitted marriage. The petitioner's attorneystated to Court that his client was willing to pay maintenance tothe respondent and requested Court to fix a reasonable amount.As against a sum of Rs. 1,000 per month urged by her counsel, thepetitioner, after a brief consultation with his counsel, agreed topay Rs. 700 per month as maintenance and an order was made
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accordingly. Then on an application of the respondent's counselin view of the fact that the petitioner had admittedly planned toleave the country immediately the learned Judge ordered thepetitioner to furnish certified bail in a sum of Rs. 25,000 or cashbail in a sum of Rs. 10,000. As he asked for a day's time to getready with the deed or cash the learned Judge ordered surety bailin a sum of Rs. 50,000 till next day and his father offered to standsurety which the Court accepted. On the next day (8th) he wasgiven further time to furnish bail till the 9th on which day hefinished certified bail. On that day the learned Judge examined hispassport to ascertain his nationality. As he indicated to the learnedJudge that he intended to leave the country immediately beforethe expiry of his visa, the learned Judge suggested thathe should make and he agreed to make the first payment of Rs. 700on 13.1.1981. On the latter date the petitioner came to Courtafter it had adjourned. The Registrar informed the learned Judgeaccordingly and arrangements were made for the payment to bemade by the petitioner to the respondent in chambers. Therespondent further states that the petitioner was represented by anattorney-at-law when he signified his consent to pay maintenanceby subscribing his signature before the learned Judge and that heis now contriving to retrace his steps and to reduce the entirelegal proceedings to a trifling exercise. She thus maintains that thelearned Judge has acted within the scope of his jurisdiction andthat the orders made by him are in accordance with law and thatthe petitioner has no valid cause to invoke the revisionary powersof this Court.
Learned counsel for the petitoner submitted to us that theentire proceedings before the learned Family Court Judge werevoid for the reason that the assumption and the exercise ofjurisdiction by him over the petitioner were initially bad andillegal. His contention was that a Judge (whether a Magistrate or aFamily Court Judge) possessed no power in maintenanceproceedings to issue, in the first instance, a warrant of arrest tocompel the attendance of a defendant before him. He referred usto the relevant provisions of the Maintenance Ordinance (Chap. 91,Vol. 4 L.E.C.) and the Judicature Act, No. 2 of 1978, and theiramendments, and submitted that maintenance proceedings arecivil in nature, the procedure prescribed is a civil method ofprocedure and the process that can issue by Court in such a caseis civil process. The law prescribed that a summons must issue ona defendant in a maintenance case and not a warrant for his arrest
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and production in Court. He urged that the learned Family CourtJudge by issuing a warrant of arrest to compel the petitioner'sattendance in Court had thus acted without jurisdiction and theCourt was therefore not competent to assume jurisdiction overthe petitioner, and that therefore all proceedings and orders madeby the learned Judge are void. He relied on the following passagein the judgement of Tennekoon, C. J. in Perera v. Commissionerof National Housing (1) at p. 366:
"Lack of competency in a Court is a circumstance thatresults in a judgment or order that is void. Lack of competencymay arise in one of two ways. A Court may lack jurisdictionover the cause or matter or over the parties; it may also lackcompetence because of failure to comply with such proceduralrequirements as are necessary for the exercise of power by the
Court. Both are jurisdictional defects; Both classes of
jurisdictional defect result in judgment or orders which arevoid."
Learned counsel for the respondent agreed that the FamilyCourt is now vested with jurisdiction to hear and determinemaintenance proceedings by virtue of section 24 of the JudicatureAct, No. 2 of 1978. He submitted that section 4 of the Judicature(Amendment) Act, No. 37 of 1979, which repealed section 29 ofthe principal Act and substituted in its place a new section 29,prescribed the procedure to be followed in the Family Court.Subsection 2 of section 4 set out that the procedure laid downin the Maintenance Ordinance should govern the proceedings thatmay be instituted in the Family Court for the recovery ofmaintenance. He then referred us to section 15 of the MaintenanceOrdinance which authorised a Magistrate to proceed in the mannerprovided in Chapters V and VI of the Criminal Procedure Code(Chap. 20, Vol. 1, L.E.C.) to compel the attendance of thedefendant before Court. Section 62 (1), contained in Chapter V ofthe Code, he contended, empowered a Magistrate to issue awarrant for the arrest of any person before the issue of summonsif the Court sees reason to believe that he has absconded or willnot obey the summons. He pointed out that in the instant casethere was an application (R4) made to the learned Judge on
(the very day that maintenance proceedings wereinstituted before him) for the issue of a warrant of arrest againstthe petitioner which the learned Judge after consideration allowed.Learned counsel for the respondent thus maintained that the
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learned Judge acted within jurisdiction and according to law inissuing the warrant.
Learned counsel for the petitioner did not dispute the fact thatthe application R 4 had been made to the learned Judge for theissue of a warrant against his client. He maintained that even ifthe learned Judge had the power to issue a warrant, he had failedto record his reasons in writing before issuing it as required bysection 62 (1) of the Criminal Procedure Code and that thewarrant was bad for that reason.
The questions that arise for our determination are purelyquestions of law. The main question is whether a Family CourtJudge has the power to issue, in maintenance proceedings, awarrant of arrest to compel the attendance of the defendantbefore him without issuing summons for his appearance in Court.Section 14 (1) of the Maintenance Ordinance as amended by theMaintenance (Amendment) Act, No. 19 of 1972, states that everyapplication for an order of maintenance or to enforce an order ofmaintenance shall be supported by an affidavit stating the factsin support of the application and the Magistrate shall, if satisfiedthat the facts set out in the affidavit are sufficient, issue asummons on the defendant to appear and to show cause why theapplication should not be granted. Section 15 of the MaintenanceOrdinance provides that a Magistrate may proceed in the mannerprovided in Chapters V and Vi of the Criminal Procedure Codeto compel the attendance of, inter alia, the defendant. Section62 (1) of the Code is one of the sections contained in Chapter Vaforesaid. It empowers a Court to issue a warrant of arrest againsta person, after recording its reasons in writing, if before the issueof summons the Court sees reason to believe that he will not obeythe summons. Section 15 of the Maintenance Ordinance thus in
express words makes section 62(1) of the Code applicable tomaintenance proceedings. There is no provision in the MaintenanceOrdinance for an order of maintenance to be made in the absenceof the defendant ex parte. It is therefore very essential that theCourt should be clothed with power to compel the defendant toappear in Court to enable it to make a valid and binding order.The provisions of the Maintenance Ordinance would be renderednugatory but for section 62 (1) of the Code for there will be noway of enforcing the attendance of the defendant in Court.
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As pointed out by learned counsel for the respondent, theJudicature Act, No. 2 of 1978 (which came into operation on2.7.1979—vide Gazette No. 40/16 of 15.6.1979) conferred bysection 24, on the Family Court, jurisdiction in respect ofmaintenance cases. Section 4 of the Judicature (Amendment) Act,No. 37 of 1979 (certified on 6.1.1979—prior to the coming intooperation of the principal Act) repealed section 29 of the principalAct and substituted a new section 29 therefor. Subsection 2 of thenew section 29 enacts that the provisions of the MaintenanceOrdinance governing the institution and conducting of proceedingsthereunder shall* be deemed to apply to such proceedings that maybe instituted in the Family Courts. It is thus clear (and noargument to the contrary was adduced before us) that section 15of the Maintenance Ordinance applies to maintenance proceedingsnow instituted in the Family Court.
The Criminal Procedure Code (including the aforesaid ChaptersV and VI) was itself repealed by the Administration of JusticeLaw, No. 44 of 1973, which came into force from 1.1.1974. Theprovisions of section 62 (1). however, were re-enacted in section132 of the above Law. Chapters II and IV of this Law (includingsection 132) were in turn repealed by section 457 of the Code ofCriminal Procedure Act, No. 15 of 1979, which came intooperation on 2.7.1979. Section 63 (1) of the latter Act No. 15 of1979, is however identical with section 62 (1) of the CriminalProcedure Code and section 132 of the Administration of JusticeLaw, No. 44 of 1973. Section 16. (1) of the InterpretationOrdinance (Chapter 2, Vol. 1, L. E. C.) provides that where inany written law or document reference is made to any written lawwhich is subsequently repealed, such reference shall be deemed tobe made to the written law by which the repeal is effected or tothe corresponding portion thereof. Thus section 63 (1) of thepresent Code of Criminal Procedure Act would apply tomaintenance proceedings by virtue of section 15 of the MaintenanceOrdinance. On a consideration of the above matters I am of theview that the learned Family Court Judge had the power undersection 15 of the Maintenance Ordinance read with section 63 (1)of the Code of Criminal Procedure Act to issue a warrant of arrestagainst the petitioner without issuing summons.
There remains for consideration the submission of learnedcounsel for the petitioner that the failure of the learned Judge torecord his reasons in writing before the issue of the warrant
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renders it invalid. He stated that the provisions of the section mustbe strictly complied with. He also submitted that the failure torecord the reasons has deprived this Court of the opportunity ofscrutinising the reasons for the issue of the warrant and ofascertaining whether the learned Judge did exercise his discretionproperly. No doubt it is necessary that the Court must specify itsreasons for the issue of a warrant of arrest against any person asrequired by law. But in my view this will only amount to anirregularity in the exercise of a power which is vested in Court. Itis not a jurisdictional defect which would vitiate the subsequentproceedings in Court.
For the above reasons the application is dismissed with costsfixed at Rs. 315.
COLIN THOME, P.-l agree.
Application dismissed.