DE KRETSER J.—Menilci v. Siyathuwa.
1940Present : de Kretser J.
MENIKI v. SIYATHUWA714—M. C. Kurunegala, 59,959
Maintenance—Parties divorced after order for maintenance—Effect of divorce.An order for maintenance made in favour of a wife under the Mainte-nance Ordinance remains in force only so long as the relationship ofhusband and wife continues between the parties.
A PPEAL from an order of the Magistrate of Kurunegala.
A. S. Ponnambalam, for applicant.
N. K. Choksy (with him C. C. Rasa Ratnam), for respondent.
Cur. adv. vult.
October 28, 1940. de Kretser J.—
The appellant obtained an order for maintenance against her husband,the respondent. Thereafter the parties were divorced under the KandyanMarriage Ordinance, No. 3 of 1870. At a later date when she applied forarrears of maintenance she was met with the plea that she had ceased tobe the wife of the respondent and therefore could not maintain her claim.The plea was upheld.
In re de Mel.
It is contended on appeal that the only mode of getting rid of the orderfor maintenance was' to have it cancelled under section 5 of the Mainte-nance Ordinance and, as none of the conditions prescribed in that sectionwould apply, therefore, the order remains in force and must be enforced.
The answer to this is that the Ordinance only applies while the conjugalrelationship exists, and that the very terms of that section and of othersections in the Ordinance indicate that the Ordinance applies only whilethe relationship of husband and wife continues. It is clear that theOrdinance was intended to apply only while marital relations continued.
The Ordinance is on the same lines as the corresponding provisions inthe Indian Criminal Procedure Code. Sohini, in his commentary on thatCode, at page 1035, deals with this very position and says “ where thecessation of conjugal relations has been proved the responsibility attachedthereto must cease, and a Magistrate is competent to stay an order formaintenance already made and to refuse to issue his warrant and to tryall questions raised before him which affect the rights of a woman toreceive maintenance He quotes two cases, viz., Abdur Raliaman v.Sakhina1 and In re Din Muhammad", both of which clearly supportthe view he takes.
Under the Kandyan Marriage Ordinance it was open to the Registrarto order maintenance*for the wife but he did not do so. There is nothingto indicate whether his attention was invited to the question of mainte-nance or to show that he did not order maintenance because of the orderalready in existence. Whatever may have been the reasons whichoperated, no such order was made. It is unnecessary to discuss what theremedy of the wife is where the Registrar fails to make an order eitherfrom inattention to the matter or because of a mistake made by him andthe parties. It is sufficient to say that the order for maintenance is nowineffective, that the Magistrate is functus officio, and that it was thereforehis duty to refuse to continue the proceedings.
There is some doubt as to whether maintenance for the month ofMarch had been paid or not, and Counsel for the respondent was willingthat maintenance should be recovered for that month if it had not alreadybeen paid. It will be open to the wife to invite the Magistrate to dealwith the matter of maintenance due for the month, if any.
The appeal is dismissed.
MENIKI v. SIYATHUWA