088-NLR-NLR-V-74-K.-PERUMAL-Petitioner-and-K.-KARUMEGAM-Respondent.pdf
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Perumal v. KartimegatA
Present: Samerawickrame, J.K. PERUMAL, Petitioner, and K. 1CARUMEGAM, RespondentS. C. 211J68—Application in Revision in M. 0. Mutale, 24721Maintenance—Application by wife against husband in respect oj a child born about sixmonths after marriage—Application granted in Magistrate's Court—Subsequentannulment oj the marriage by decree of District Court on ground of unknownpregnancy before marriage—Whether the maintenance order can be cancelled—
Evidence Ordinance, a. 41 (2).
A child was born to X a littlo over six months after tho marringo betweencmd Y. X obtained in o Magistrate's Court an order of maintenance against
in favour of tho child. Y thereafter obtained in tlio District Court an ex partedecreo annulling his marringo on tho ground that at tho time of tho marriage Xwas pregnant and that Y was not nwnro of the pregnancy. Tn tho presentapplication to tho Supremo Court Y sought to have tho order for maintenancein respect of tho child cancelled and set aside.
Held, that the finding against X in the ntatrimoniiil action for nullity wasnot binding mi tho chilli ns tho chilli was not a party to the action. Jn such aease section 41 (2) of tfie Kvideiiet; Ordinmuo is not applicable ns against thochild.
Application’ to revise an order of the .Magistrate's Court, .Mutale.
P. Edusanriyi, for the defendant-pelit ioner.
Sarulh HI ullcllunrijintui. with 1. S. <lv. Stlra. fur the applicant -respondent.
Cur. adv. vult.*< X
SAMJSliAWIC'KRAME, J.—Pcrumal v. Karumegam
' 335
August IS, 1009. Sameuawickhame, J.—
The applicant-respondent had obtained an order that tlio defendant-petitioner should pa)' maintenance for her child. The child was bornon the 14th of June, 1904, a little over six months after the marriagebetween the applicant-respondent and tiro defendant-petitioner. Thedefendant-petitioner disputed paternity and after an inquiry, at whichevidence was heard on behalf of both parties, the learned Magistrate madeorder for maintenance in respect of the child. The order was affirmedupon an appeal to this Court. The defendant-petitioner thereafterobtained a decree from the District Court, after an cx-parte trial at whichhe alone gavo evidence, annulling his marriage with the applicant-respondent on the ground that at the lime of the marriage his wife waspregnant- and that he was not aware of the pregnancy. The defendant-petitioner has now made the present application to this Court to have theorder for maintenance in respect of the child cancelled and set aside.
Counsel for the defendant-petitioner cited Indian cases in which ordersfor maintenance had been cancelled in view of subsequent decrees incivil cases granting declarations of non-paternity and of non-liabilityin consequence to pay maintenance—vide U Arzeina v. Ma Kyin Shire A;another1 and Nga Po Thein v. Ma Me Sail «G another 2. Section 4S8 of theIndian Criminal Procedure Code empowers a magistrate to make anorder for maintenance and s. 4.89 (2) empowers a magistrate to cancel orvary the order. That provision is as follows :—
:: Where it appears to the Magistrate that, in consequence of anydecision of a competent civil Court, any order made under section4S8 should be cancelled or varied, he shall cancel tire order or, as thecase may be, vary the same accordingly.’''
Apart from the fact that there is express provision empowering amagistrate to cancel or vary an order in consequence of a decision of acompetent civil Court, under tho Indian Specific Relief Act there isprovision for declarations of non-paternity and consequent non-liabilityfor payment of maintenance. In suits to obtain such declarations thechild concerned would necessarily be a party. There is no provisionunder our law corresponding to s. 4S9 (2) of the Indian Criminal ProcedureCode authorising a magistrate to cancel an order for maintenance followinga decision of a competent civil Court. Some of tho earlier cases in Indiahowever had been decided before the year 1923, when by an amendmenttfic provision ln s, qg9 (2) was introduced into tho Criminal ProcedureCode of India. In the case of Bo Gyi v. Ma Nyeinz, it was held that thejurisdiction conferred by s. 48S is auxiliary to that possessed by a civilCourt and before enforcing an order for maintenance made under thatSection a magistrate is bound to take into consideration any subsequentorder of a civil Court which would disentitle a wife to maintenance. 1
1 A. J. R. (1040) Rangoon 208.3 A. I. R. (1022) Upper Burma 20.
A. I. R. (1919) Lower Burma 7 (2).
336SAMERAW lUlvRA.ME, J-—Vertttnal r. Knruniojam
111 that case, as well as in all the other cases which I have hacl theopportunity of examining, it appeared that the petitioner had obtained adeclaration in a civil ease that the child was not his and not merely anincidental finding in a matrimonial action for divorce or nullity to whichthe child was not a party. Nor is the jurisdiction under the MaintenanceOrdinance auxiliary to that possessed by the civil Court as in the caso ofthat under s. 4SS of the Indian Criminal Procedure Code for since theenactment of the Maintenance Ordinance a civil action for maintenanceis no longer available—vide Teime v. Ekanuytike l.
Learned Counsel for the defendant-petitioner submitted that in viewof s. 41 {2) of the Evidence Ordinance the order of the District Courtdeclaring the marriage between the defendant-petit ioner and the applicant-respondent null and void on the ground that the applicant had concealedher pregnancy from the petitioner at the time of marriage, was a judgmentin rein. Section 41. (2) however, makes final and conclusive only thatpart of the order which confers or takes away any legal character. Itwould, therefore, be conclusive on the question as to whether or not amarriage existed between the defendant-petit ioner and the applicant-respondent. It would not however be conclusive in respect of the groundupon which a finding on that question is made.. In respect of a decreefor divorce it was stated in the full Bench decision in the case of KcmhyaLai v. Badha Churn-. ft is conclusive upon all persons that the partieshave been divorced and that the parties are no longer husband and wifebut it is not conclusive nor even prima facie evidence against strangersthat the cause for which the decree was pronounced existed. “ Thefinding of pregnancy of the applicant-respondent at the time of marriageunknown to the defendant-pet it ioner is therefore, not binding on personswho were not parties to the action and accordingly not binding on thechild of the applicant-respon< 1 eii,t. Though the applicant-respondentwas the person who applied for maiiitenanee. the application was madefor the benefit of her child.
It appears to me that, the defendant-petitioner has failed to put beforethis Court sufficient grounds for the cancellation of the order formaintenance made in respect of the applicant-respondent s child. Theapplication is accordingly dismissed with costs.
. I/iplication di-i>nisscsl.
1 (/.Vfi?) 63 .V. L. ii. 644 at 6/6.
ir. n. j.?c.