172-NLR-NLR-V-47-KANDASWAMY-Appellant-and-PUVANESWARI-Respondent.pdf
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WIJEYEWA.RDENE J.—Kandaawamy v. Pu.vaneswa.ri.
1046Present:Wij eye war dene J.
KANDASWAMY, Appellant, and PUVANESWARI, Respondent.
676—M. C. Jaffna, 19,008.
Maintenance—Order in wife's favour—Decree of separation—Return of wife tohusband's house and. temporary stay—Does not cancel order for mainte-nance—Enforcement of order of maintenance—Imprisonment possibleonly in respect of aPmoance remaining unpaid after execution of warrant—Maintenance Ordinance {Cap. 76), ss. 5, 8, 9.
An order for maintenaroe can be cancelled only in the circumstancesset out in sections 5 and 10 of the Maintenance Ordinance. The merefact that the wife who had obtained an order for maintenance and adecree of separation a mensa et thoro returned subseouently to herhusband’s house and lived with him for some time will not have theeffect of cancelling the order though it may suspend the operation of theorder.
A sentence of imprisonment under section 8 of the MaintenanceOrdinance can be passed only in respect of the part of the allowanceremaining u-ipaid after the .execution of a warrant.
PPEAL. against an order of the Magistrate’s Court, Jaffna.
Thiagalingan.., for the appellant.
S. N. Rajaratnam (with him 8. P. M. Rajendram), for the respondent.
Cur. ddv. vult.
September 23, 1946. Wijbyewakdenb J.—
The respondent obtained in 1937 an order for maintenance against herhusband the appellant. She obtained later a decree of separationa mensa et thoro. As the appellant failed to pay maintenance, due fromMarch, 1945, she applied for a distress warrant. The appellant did notdispute the fact that he did not pay maintenance from March, 1945,but opposed the respondent’s application on the ground that therespondent came to his house and stayed there from September, 1944,till May, 1945 “ when he was dying ”. The respondent’s Proctor agreedto waive the claim for maintenance for the period during which theappellant stated that the respondent stayed in his house.
An order for maintenance could be cancelled only in the circumstancesset out in sections 5 and 10 of the Maintenance Ordinance. The evidenceled in the case does not disclose any grounds for a cancellation. Themere fact that the wife returned to her husband’s house and lived withhim for some time will not have the effect of cancelling the order thoughit may suspend the operation of the order (Kanagammal v. PandaryNadar l, and Kadiravail Wadivel v. Sandanen 2).
After finding that the respondent is entitled to maintenance except fromOctober 1, 1944, to April 30, 1945, the Magistrate provided in his orderthat if the appellant did not pay that amount on or before April 30, 1946,“ he would be committed to jail ”. That part of the order is wrongand should be deleted in view of section 8 of the Ordinance which states
1 AU, India Reporter {1927) Madras 376.
* {1929) 30 N. L. R. 351.
DIAS J.—De Silva v. Siriwardene.
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that a sentence of imprisonment could be passed ofily in respect of thepart of the allowance remaining unpaid after the execution of a warrant(vide Cornelia v. Sawodis 3). I affirm the order of the Magistrate subjectto that modification.
I may add that, though the matter came up before me by way of anappeal, I have dealt with it in revision.
Order modified.