077-NLR-NLR-V-30-LETCHIMAN-PILLAI-v.-KANDIAH.pdf
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Present: Drieberg J.
LETCHIMAN PILLAI v. KANDIAH.
559—P. C. Jaffna, 155.
Maintenance—Application based upon customary marriage—Respondentcontracts registered marriage with another woman—Order stayingproceedings.
The appellant, alleging that she was married to the respondent,according to Tamil custom, made an application for maintenance.
At the trial, it was brought to the notice of the Court that, sincethe proceedings were instituted, the respondent had contracted aregistered marriage with another woman.
The Police Magistrate then ordered the stay of proceedingspending an investigation with a view to the prosecution of therespondent for bigamy.
Held, that the order staying the proceedings was wrong and thatthe Magistrate should have proceeded to a final determination ofthe application.
PPEAL from an order of the Police Magistrate of Jaffna.
Ramachandra, for applicant, appellant.
Onanaprakasam, for defendant, respondent.
October 19, 1928. Drzebebg J.—
The appellant, who says she was married to the respondentaccording to Tamil custom, though the marriage was not registered,claims maintenance from him. On an appeal from a previous orderthis Court on March 30 last ordered a trial de novo.
At the new trial the appellant was examined and it was thenbrought to the notice of the Court that after these proceedings wereinstituted the respondent on February 26, 1928, contracted aregistered marriage with another woman. The appeal to theSupreme Court was then pending.
The Police Magistrate was of opinion that he could not or shouldnot proceed with this inquiry as the question whether the firstunion was a legal marriage was one which should be decided by ajury in a trial of the respondent for bigamy. He, therefore, ordereda stay of these proceedings, and with a view to initiating criminalproceedings against the respondent he referred the matter to theManiagar for investigation. The appeal is from this order.
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This order is not right. Though the jurisdiction is in the Police 1928.Court, a maintenance application is really a proceeding for the dmbbbbo J.enforcement of a civil obligation. There are earlier cases where a——
different view has been expressed, but the correct statement of the Lp^^nlaw, in my opinion, is to be found in the judgments of Sir Winfield KandiahBonser C.J. in SvJbaliya v. Kannangara1 and Eina v. Eraneris,2where he deals with the father’s liability to maintain his illegitimatechildren ; a wife’s claim to maintenance is on the same footing, andit has been held that the Common law right of action does not nowexist and she can cjaim relief only under the Maintenance Ordinance(Menikkamy v. Loku Appu, 3 I.amahamy v. Karunaratna 4).
A conflict in the conclusions of a Civil and of a Criminal Court issometimes inevitable. It must be remembered that the standard ofproof in the two cases is not the same. A maintenance applicationbeing a civil matter can rightly be decided on the balance ofevidence (Eina v. Eraneris {supra) ), whereas in a criminal matterthe innocence of the accused must be assumed until the contrarybe conclusively proved. It is sufficient to base my judgment onthese reasons alone, but I might further point out that it may well bethat though evidence of marriage be led which would convince thePolice Magistrate and justify his making an order for maintenance,the Attroney-General might in his discretion decide on not com-mitting for trial a case in which the alleged first marriage dependedfor proof of its validity on oral evidence of witnesses regardingcompliance with the ceremonial rites of marriage, and on which ofthese rites are essential.
I, therefore, set aside the order of the Police Magistrate anddirect that he should proceed with the investigation of this claimand adjudicate upon it.
Set aside.
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{1899) 4 N. L. R. 121.{1900) 4 N. L. R. 4.
> (1898) 1 Bed. 161.
* (1921) 22 N. L. R. (Full Bench) 289.