092-NLR-NLR-V-59-KANAPATHIPILLAI-Appellant-and-SORNAMMAH-Respondent.pdf
404' L. W. JDE SILVA, A.J.—KanapathipiUai- v. Scrnammah
1957Present : L. W. de Silva, A.J.
KANAPATHIPILLAI, Appellant, and SORNAMMAH, Respondent•S. G. 106—M. G. Jaffna, 3,SS4
Maintenance Ordinance—Sectiojis 2 and 8—Arrears due—Issue of distress ivarranl—-
Elements necessary.
Before a distress warrant can bo issued for non-payment of maintenance,there must bo a disclosure inter alia that (1) an order for maintenance hadbeen duly made, and (2) such order specified a monthly sum.
In an application for maintenance made by a wife on behalf of herself andeight children who wore between the ages of 15 and 3 years, the hus-band undertook to pay a composito sum of Rs. 75 every month to the wifefor herself and fivo of the children. The settlebnenb was recorded, but thoCourt made no order of any kind.–
Held (in revision), (i) that tho settlement, by itself, was not a valid orderof maintenance within the meaning of section 2 of the Maintenance Ordinance.
(ii) that tho composite sum could not connote any specified sum in favourof tho wifo for herself.•
^VpPEAL from an order of the Magistrate’s Court, Jaffna.
Colvin P. de Silva, with V. Ratnasabapathy, for dofendant-appcUant.
G. Ranganatha-n, with M. Shannntgalingam, for applicant-respondent.
Cur. adv. vull.
July 26, 1957. L. W. de Silva, A.J.—.
Tho appoal questions tho legality of an ordor niado by the Magis-trate in issuing a warrant under section S of tho Mainte-nanco Ordinance(Cap. 76). Learned Counsol for tho applicant-respondent took a preli-minary objection to the hearing on the ground that no appeal lay fromsuch an order. He relied on section 17 of the same enactment which
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L. V. DE SILVA, A.J.—Kanapalhipillai v. Sornrtmn.ah
grants a right of appeal only in respect of orders made under sections2 or 14. In support of tJio objection, tho decisions reported in14 N.L.It. 244, 4 B.27.C. 73, 5 G.L.J. 231 and 7 C.L.W. 94 were cited.Learned Counsel for the appellant questioned their applicability aswell as their correctness but did not pursuo tho matter. Instead, homoved that I exorcise the rovisional powers vested in this Court. -Afterhearing Counsel on both sides, I decided to act in Revision not onlybecause the order appealed against is an illegality resulting froma want of jurisdiction, but also because that illegality, if permitted tostand, must by its very nature continue to operate to the detrimentof tho appellant until other circumstances warranting a cancellationor creating a cessation‘of the order arise.
In view of the erratic course this case has taken since 1956, it hasbecome necessary to set out in detail the facts and circumstances. InOctober 193S the respondent alleged that her husband tho appellanthad neglected to maintain her and their eight children who were betweenthe ages of 15 and 3 years. The amount of maintenance necessaryas a monthly or other allowance was not specified. The appellantwas then chief clerk of tho Police Court of Tanga 11a. On 12th November,193S, the date fixed for the inquiry, the parties were present in Courtwith their respective proctors who notified a settlement of which a recordwas made by the Magistrate. According to its terms, the appellant under-took liability for the pajunent of the house-rent, tho children’s fees,and a debt incurred by the respondent. The appellant also undertookto pay the respondent a sum of Rs. 60 for the rest of the month ofNovember. The more material part of the recorded settlement- is asfollows —-
“Prom the first of December, respondent (meaning the defendant)undertakes to send applicant for the maintenance of herself andthe children Rs. S5 in addition to paying house-rent-, medical billsand children’s schooling expenses himself direct. ”
The Court made no order of any kind. Tho journal entries there-after show that tho respondent had moved for requisitions for the pay-ment of sums of money deposited b3r the appellant to her credit andthat such requisitions were issued to her. There were also other inci-dental matters and applications made by both parties, but these wereinconsequential. In April 1939, the appellant, setting out variousgrounds, moved for a cancellation of the maintena?ice order (presumablyon the assumption that there was in fact such an order). On 10.5.39,in the presence of the parties and their respective proctors, the Magis-trate made another record of an arrangement regarding the schoolingof three of the children. That record continued thus —-
“In view' of tho new arrangement whereby the three boys willbe in the college boarding, it is agreed that the respondent (meaningtho defendant) should pay Its. 75 a month hercaft-:r commencitig 1stJune 1939 as maintenance for applica?it and the Jive children now inher custody and inclusive of house rent. It' is agreed that money isto be sent to applicant to Valvettiturai by monej' order. ”• .
40(5
T,. W. DE SIEVA, A.J.—KanapathipiUai t Sornammah
No order of any kind was made on this now arrangement either.Nothing of any consequence took place thereafter until 3rd November1956, i.e., 17-£ years later, when the respondent moved for a distresswarrant on the appellant for ]Rs. 1,850 and costs stating that tiro appel-lant had failed to pay maintenance for six years and two months fromAugust 1950 to October 1956. On that occasion the respondent gaveevidence before the Magistrate. This is all she said :
“I am the wife of the defendant A. KanapathipiUai of PulolyNorth, Sornakiri, Point Pedro. The defendant is in default of arreai-sof maintenance for 6 years. I ask for a distress warrant on the deft,for Rs. 1,850. ”,*
G. S. David
Mag.
She did not state how the amount was calculated, or in respect of whatmembers of the family the default had been committed. Nor did theMagistrate direct his mind to this matter though it was obligatory onhim to do so since some of the children at any rate had grown past theage of maintenance at the time the alleged default in pajunent wascommitted by the appellant. Under section 7 of Cap. 76, no orderfor an allowanco for the maintenance of an3' child shall, except for thepurpose of recovering money previously due under such order, be validafter the child has attained the age of sixteen years, or eighteen yearsin certain circumstances, or after the death of such child. The Magis-trate, however, issued a warrant for Rs. 1,S50 and costs Rs. 5 25. Thewar rant stated that an order had been dull/ made against the appellantrequiring him to pay as maintenance the monthly sum of Rs. 1,850in arrears.
These statements were both fictitious and paradoxical and had be-come necessary because the Form of the warrant No. 2 prescribed byCap. 76 and adopted by the respondent required a disclosure inter aliathat (1) an order for maintenance had been duly made, and (2) suchorder specified a month^ sum. When the Fiscal sought to executethe warrant, the appellant questioned its legality by a letter of protestwhich was sent to the Magistrate b3T the Fiscal with his report thatthe appellant was not possessed of any movable "property In his division.The Magistrate thereupon held an inquiry on Sth December 1956 whenthe respondent stated in evidence that the order made on 10.5.39 teas a com-posite order for herself and her five children in a sum of Rs. 75, and sheasked only Rs. 12‘50 a month, being one-sixth of the total amountordered by the Court. She asked for a distress warrant for Rs. 925,which sum she alleged was duo to her for the period from August 1950to October 1950. She admitted that her previous application for thedistress warrant was on the footing that she was entitled to Rs. 25 amonth, which was tho sum according to her the appellant had beenpa3'ing. The appellant also gave evidence setting out the previoushistory'. At the conclusion of the inquiry, his counsel pointed outto the Magistrate that- there were no valid orders for maintenance in
L. V. DJC SJJ.VA, A.J.—Kanapathipillai v. Sornammah.
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respect of the applicant or of her children. On 12th January 1957,the learned 3fagistrate delivered his order directing the issue of a dis-tress -warrant for Its. 925, i.e., 71 months arrears of maintenanceat Its. 12-50 a month. The appeal was taken from that order. Thegrounds for making it have been stated by the learned Magistrate asfollows :—
“ It is undoubtedly true that both orders are comp>osile orders—nospecified amount has been fixed for each of the persons to be bene-fited, but a lump sum has been ordered in each case. But it is commonground that the maintenance orders were made with the consentof the parties, and what is more, had been acted upon for a numberof years. The first order was made on 12.11.38 with the consentof the parties, and the second on 10.5.39 again with the consent ofthe parties. On the defendant’s own showing, these orders wereacted upon till December 19-14, that is a period of six years. It isonly now that the defendant questions the validity of the orders whichhe himself was instrumental in making and upon which ho had actedfor six years.
Counsel have not been able to cite to me any authorities on thepoint, but I do not think it unreasonable to assume that when a com-posite order is made, the Court intends that the parties to be benefitedshould each lake an equal share of the total amount so ordered. If theCourt had intended that the parties should bo benefited in different 'amounts each, it would have been so stated in the order ….The order of maintenance made on 10.5.39 upon which the applicantnow claims arrears fixed the total monthly amount as Rs. 75 for herand her five children, so that each one of them could claim to be bene-fited only to the extent of Bs. 12-50 individually. The applicantcannot therefore insist on claiming move than Its. 12'50 a monthfor herself. ”
It is quite plain that, although botli parties have acted for severalyears as though there had been an order for maintenance, there wasin fact no order of any kind. The Magistrate has assumed that therewere orders and even thought that the appellant was instrumentalin making them, though the Maintenance Ordinance does not conferjurisdiction on a party to the litigation to make orders for maintenance.
W-hen the parties moved the Court, in 193S and 1939 respectivelyto record the terms of their agreement and new arrangement, theseivere in fact incapable of being embodied in an enforceable order whichhad to conform to the provisions of the Maintenance Ordinance. Thereis no record whatever that either party at any time invited the Courtto make an order in conformity with even sonic part of their arrange-ments. When lie held the inquiry in December 1956, the Magistrateerred in seeking guidance from the evidence of the respondent whenshe said there was on 10th May 1939 a composite order for herself andher five children in a sum of Rs. 75. On so fundamental a matter,the Magistrate should have been guided not by evidence, which at thatstage was indeed irrelevant, but by the record. Even otherwise, I
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L. W. DE SILVA, A.J.—Kanapalhipilldi v. Sornainmah
am not aware of any rule—and none was cited to me—whereby a so-called composite order for maintenance in favour of a mother and child-ren may be split up into equal shares like a lot allotted by a partitiondecree iii common to several persons without a specification of theirindividual shares..
The record shows not a composite order as the Magistrate thinks buta composite sum which has not been made the subject of an order. Thecomposite sum mentioned in the arrangement of the parties could notbe decomposed by the Magistrate for the purposes stated by him.Thero being no order made for maintenance at any time in terms ofsection 2 of the Maintenance Ordinance (Cap. 76), the Magistrate actedwithout jurisdiction in issuing the warrant against the appellant undersection 8. Even in form, the document was not a warrant at all.Learned counsel for the respondent had to concede that the warrantso called was illegally issued. I allow the appeal and set aside withcosts the learned Magistrate’s order of 12th January 1957.
Appeal alloived.