090-NLR-NLR-V-19-MENIKA-v.-NAIDE.pdf
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Present : Wood Renton C.J. and De Sampayo J-.MENIKA v. NAIDE.
019—P.C. Iiurunegala, 22,070.
Maintenance—Kandyan MarriageOrdinance, No. 3 of 1870, s. 23—
Divorce—Compensationby husband towife—Claimfor main-
tenance on behalf of children.
The compensation for which section 23 of the Amended KandyanMarriage Ordinance, No. 3 of 1870, provides is in the nature ofcompensation to the spouse, to whom it is made for the loss of theconjugal society, and it does not interfere with the rights of a childentitled to maintenance, for whom the compensation – does not makeexpress provision.
HE facts appear from the judgment.
T. de Silva, for appellant.—If provision is made under theCivil Procedure Code for children in a matrimonial action, themother cannot proceed under the Maintenance Ordinance. The sameprinciple will apply even when compensation is given to the motherunder the Kandyan Marriage Ordinance of 1870.
i 4 H. L. C. 1.
1916.
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IMS..
Monika
v. Naide
November 7, 1916. Wood Renton C.J.—
I referred this ease to a Bench of two Judges because it raises aninteresting point of law, in regard to which counsel for the appellantwas unable to adduce any authority at the original argument. Theappellant, who is a Kandyan, was divorced from his wife under theprovisions of the Amended Kandyan Marriage Ordinance, 1870, 1last year. The certificate of dissolution states that the parties hadagreed that compensation should be made by the husband to thewife by the transfer of a certain land in favour of one of the threeminor children of the marriage. The wife subsequently obtainedin the Police Court of Kurunegala a maintenance order in favourof another child. The eldest child is with the father. The appellantcontended that the compensation he had made to his wife on thedissolution of the marriage was a bar to the subsequent proceedingsfor maintenance in the Police Court. The learned Police Magistratehas over-ruled this contention, and I think that he is right. Therelevant provisions of the Amended Kandyan Marriage Ordinance,. 1870, 1 are to be found in section 23, and are in these terms: —
“ If the parties to such dissolution snail have agreed upon anycompensation to be made to either or both, owing tosuch dissolution, it shall be the duty of the Provincialor Assistant Provincial Registrar to enter the same inthe register of dissolutions; and tfie entry so madeshall have all the effect of the order or decree of acompetent Court and may be enforced as such.”
As I have already mentioned, no authority was cited by counselas to the construction of this enactment, and I have not myselfbeen able to find any decision upon the point. It appears to me,however, that the compensation for which it provides is in thenature of compensation to the spouse, to whom it is made for theloss of the conjugal society, and that it ought not to be regardedas in any wav interfering with the rights of a child entitled tomaintenance, for whom the compensation does not make expressprovision.
On these grounds I would dismiss the appeal.
De Sampayo J.—
I am of the same opinion.
Appeal dismissed.
i No. 3 of 1870.