123-NLR-NLR-V-19-KATHERINA-v.-DAVITH.pdf
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1917
Present: De Sampayo J.
KATHERINA t>. DAYITH.
279—P. C. Galle, 49,801.
Maintenance — Imprisonment for default of payment of allowancedecreed—Is liability to pay allowance extinguishedt
Where a person ordered to pay maintenance under Ordinance
No. 19 of1889hassuffered imprisonment fordefault of payment of
the allowance, the liability to pay the- allowance in respect of which
the imprisonment was imposed is extinguished.
rpHE facts appear from the judgment.
Bartholomeusz, for applicant, appellant.—The liability for main-tenance is of a civil nature. It is not extinguished by imprisonment.Any payment made subsequent to the imprisonment could beapplied for the payment of arrears which became due previous tothe imprisonment.
A sum ofRs.231was due at the timetherespondentwas
sentenced to imprisonment. No part of that had been paid orrecovered when he was brought up the second time on a warrant,but anotherRs.60had by then becomedue.Thereforethe
sum of Rs. 18 which was paid had to be applied for the partpayment of the Rs. 231; and till the whole of that sum of Rs. 231is paid no sum could be applied to the payment of what becamedue subsequently. '
In any case, as only Rs. 18 was paid, the respondent should nothave been discharged. According to the journal entries, nothinghas been paid at all from the date of the order.
M. W. H. de Silva, for defendant, respondent.—Section 9 of theMaintenanceOrdinance clearly shows thatanysums dueare
extinguished by undergoing imprisonment in default. The pro-vision that the imprisonment should be “ for the whole or anypart of each month’s allowance remaining unpaid after executionof the warrant ” implies that the imprisonment takes the place ofpayment; see >Sideshwar v. Cyanada Dasi.1
If it be held that imprisonment does not wipe off the arrears, aman who once falls into arrear will hardly ever get a chance ofgetting out of jail. Such is not the intention to be gathered fromthe language of the Ordinance.
The Maintenance Ordinance provides that the amount due shouldbe levied in the manner provided for levying fines. Therefore,
* (1894) I. L. R. 22 Cal. 291.
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when imprisonment has been undergone in default the liability to 1017.pay the amount is extinguished (Shookman v. Balctya1).Katherina
The parties accepted’in the lower court that only Rs. 18 was Damihdue for the period subsequent to the imprisonment. The Judgeproceeded on that footing. Even the petition of appeal makes nocomplaint as to the amount. There are journal entries showingthat certain property has been sold.
Cur. adv. vvlt.
April 20, 1917. He Sampayo J.—
This appeal raises an important point under the MaintenanceOrdinance, No. 19 of 1889. The appellant was the mistress of therespondent and had four minor children by him, and on her applica-tion an order was made by the Police Magistrate, on January 24,1911, for the payment to her of Rs. 5 a month for the maintenance ofthe children. The respondent having made default in the paymentof this allowance, a distress warrant appears to have issued onMarch 15, 1911, but was returned with the report that the respon-dent was not possessed of any movable property. On March 27,1911, a warrant was issued for the arrest of the respondent, but,though re-issued from time to time, it was not executed, as therespondent had absconded. He w&s accordingly proclaimed, andcertain immovable property belonging to him was sequestered andultimately sold. He was, however, arrested and brought to Court onFebruary 26, 1916, at which time Rs. 3l0 was due as arrears of main-tenance for five years and two months. He was therefore sentencedto imprisonment for a period of six months under section 9 of theOrdinance. He underwent the full period of imprisonment withoutmaking any payment. On February 23, 1917, a distress warrant,together with a warrant of arrest, was again issued. He was broughtup on March 6, 1917, when the Magistrate made order committinghim to jail again for a period of six months, but withheld the carryingout of the sentence till next day, with the view of considering thematter of a tender of Rs. 18 as the amount due since February,. 1916,when the respondent was first committed to jail. The record is ina very confused state, and it is impossible to say how the amountof Rs. 18 was arrived at. No money had been paid or levied.The Rs. 18 is probably the balance after crediting the respondentwith the proceeds sale of the immovable property sequestered andsold in connection with the proceedings in which the respondenthad been proclaimed. However, by the order appealed from, theMagistrate accepted the Rs. 18 tendered and discharged therespondent.
” The ground of the appeal is that the imprisonment in February,1916, did not extinguish the respondent’s liability in respect of thearrears of maintenance before that date; that the respondent was
37
i (1916) 19 N. L. Ji. 912.
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1917.
Bit Sampatoj.
Katherina «.Davith
not entitled to appropriate any money paid or recovered to the.arrears since that date; and that the order discharging him wastherefore wrong. I do not think that this contention is sound.The liability to pay maintenance is no doubt of a civil nature, butsection 9 of the Ordinance provides for the_ enforcement of theorder for maintenance as follows:—“If any person against whoman order is made under section 3 neglects to comply with the order,the Magistrate may for every breach of the order issue a warrantdirecting the amount due to be levied in the manner by law providedfor levying fines imposed by Magistrates in the Police Courts, andmay sentence such person for the whole or any part of each month'sallowance remaining unpaid after the execution of the warrant tosimple or rigorous imprisonment for a term which may extend toone month. “
Sections 312 and 313 of the Criminal Procedure Code provide forthe issue of distress for levying a fine by sale of any movable property,and for the commitment of the offender to imprisonment in defaultof payment or recovery. In view of the terms of sub-section (3) ofsection 312, it has been held by the Full Bench in Shockman v.Balaya1 that where the offender has suffered the prescribed im-prisonment the liability to pay. the fine is thereby extinguished.
I doubt whether a case under the Maintenance Ordinance is governedby that decision, though I think the same conclusion must bearrived at for a' different reason. Section 9 of the MaintenanceOrdinance above quoted regards the failure to pay each month'sallowance as a separate breach of the order, and contemplates thecommitment of the parties to imprisonment for each such breachfor one month, though perhaps it is not contrary to its spirit toaward at one time a longer period of imprisonment in proportion tothe amount of arrears then due and limited by the general jurisdictionof the Police Court. But the provision for sentencing the partyto imprisonment for one month “ for the whole or any part of eachmonth's allowance ’’ is a clear indication that the payment of theallowance and the imprisonment for default are alternatives, andthat when the party has suffered the imprisonment, the liability topay the allowance in respect of which the imprisonment was imposedis extinguished. Section 9 of the Maintenance Ordinance closelycorresponds to section 488 (3) of the Indian Criminal ProcedureCode, and it has been held in India (Sideshwar v. Gyanada, Dost2)that the imprisonment for breach of the Court’s order is but analternative satisfaction of it. I therefore think that the contentionof the appellant in this case cannot be sustained.
There remains, however, the question whether the order discharg-ing the respondent in respect. of the arrears due since the first periodof imprisonment is right. That depends on the state of the account.Properly speaking, the amount realized by the sale of the immovable» (1916) 19 N. L. ft. 813.* (1894) I. L. ft. 32 Cal. 291.
1917.
property, when the respondent absconded and was proclaimed,cannot be regarded as a levy in respect of the order for maintenance.But if, as a matter of fact, it has been paid to, and received bythe appellant, it is, I think, only fair to consider it as a payment tothat extent. I here assuming that the Hs. 18 accepted bythe Magistrate completes the full amount, and the matter requiresfurther inquiry. The order appealed from will for this purpose beset aside and the case sent back for fresh adjudication.
Da &AMFAYOJ.
Katherina v.Daoith
Sent back.