Millen v. Millen.
1946Present: Soertsz A.C.J.
MILLEN, Petitioner, and MILLEN, Respondent.
Divorce Suit No. 30.
Divorce—Application for temporary suspension of order for alimony—Residencein Ceylon of respondent necessary at time of such application—TheCeylon (Non-Domiciled Parties) Divorce Rules, 1936, rule 21.
Where a husband who had been divorced under the Indian andColonial Divorce Jurisdiction Act, 1936, made application to have anorder for alimony made in favour of the wife suspended temporarily asto a part of the sum—
Held, that the application could not, under rule 21 of the Ceylon(Non-Domiciled Parties) Divorce Rules, 1936, be entertained unless,at the time it was made, the wife was resident in Ceylon.
PPLICATION to have an order for alimony partly suspended.
S.J. Kadirgamer, for the petitioner.
N. K. Choksy, for the respondent.
Cur. adv. vuU.
’ (1862) 31 Beavcn 407, at p. .418.» (1924) A.O. 196.
2 (1923) 2 Ch. Idu. 136, at p. 151..* (1926) 28 N. L. R. 228.
1*J. N. A 63532 (8/46)
SOERTSZ .A.C.J.—MiUen v. Mitten.
September 2, 1946. Soebt&z A.C.J.—
This is an application by a husband to have an order for alimonymade in favour of the wife “ suspended temporarily as to a part of thesum …. till such time as he resumes his substantive appoint-ment”. The order was made on July 9, 1945, both parties havingagreed thereto, and it directed the payment of £600 a year to the wifefrom May 1, 1945, a date nine days anterior to the entering of a decreenisi dissolving the marriage on a petition for divorce presented by thewife. The ground upon which this application by the husband isbased is stated in the 6th paragraph of the husband’s petition to be thathe is about to leave the Island on furlough and that during the periodof his leave he will receive on account of salary and allowances £1,125 asagainst the £2,665 he draws when he is actively in office.
The husband’s petition is dated December 21, 1945, and at that date,the wife was absent from the Island, having left it on July 20,1945.
When the application came before me for inquiry, Counsel appearingon behalf of the wife took the preliminary objection that the husband’sapplication cannot be entertained by me because, he contended, it is incontravention of regulation 21. The material part of that regulationlays down that—
“ the Supreme Court of Ceylon shall not entertain an applicationfor the modification or discharge of an order for alimony ….unless the person on whose petition the decree for dissolution of themarriage was pronounced is at the time the application is maderesident in Ceylon ”.
It is not disputed that the wife has been abroad since July 20, 1945,and for that reason this application by the husband must fail if it is, inreality, an application for modification of the order for alimony madein this case. But, Counsel for the husband submits that his client’sapplication is not for a modification but for a temporary suspension of theorder as to a part of the alimony and not one for a modification of thatorder. He invites attention to section 615 of the Civil Procedure Codewhich provides in its concluding sentence that—
“ if the husband afterwards from any cause becomes unable to makesuch payments, it shall be lawful for the Court to discharge or modifythe order or temporarily to suspend the same as to the whole or any partof the money so ordered to be paid, and again to revive the said orderwholly or in part, as to the Court seems fit ”, and he submits thatthe omission of the words italicised by me and the subsequent words ofsection 615 of the Civil Procedure Code from rule 21 of the Ceylon (Non-Domiciled Parties) Divorce Rules, 1936, implies that it was not intendedto debar a husband from making an application for suspension of theorder in the absence from the Island of the wife who had been the partyat whose instance the marriage was dissolved. The bar, he argued, wasrestricted to applications for discharge or modification.
It is difficult to imagine a temporary suspension such as is contem-plated in section 615 of the Civil Procedure Code which would not amountto a modification. It seems to me that such a suspension is a species of
Hinni Appu v. Ounaratne.
the class connoted by the generic term “ modification.” But be thatas it may, the temporary suspension asked for in this case is clearly amodification of the order made for alimony for the husband asks thatthe order allowing £600 a year to the wife be converted into an orderallowing her £300 for a certain period.
The reason for the provision in rule 21 appears to be to give effect to theimportant principle contained in the maxim audi alteram, partem.It would be manifestly unfair to deprive wholly or in part a party sovitally concerned in an order of this kind when owing to her absencefrom the Island she would not have the fullest opportunity of puttingher ease before the Tribunal. It would be unsound in every way, inlogic, in legal procedure, and in fair play to provide in a case of thiskind for the wife’s presence in the Island being necessary when a questionof the modification however small of an order arises and to dispense withthat requirement when the question is, for instance, of a suspension of thewhole order possibly for a period of considerable duration.
In this view, no occasion arises for dealing with the application on itsmerits on the facts deposed to in the affidavits of the parties.
I refuse the application with costs.