Subramaniam v. Pakkiyaledckumy
1952Present : Rose C.J.N. SUBRAMANIAM, Petitioner, and PAKKIYALEDCHUMY,.RespondentS. C. 92—Application in revision in M. C. Jaffna (Addl.) 21,446
Divorce—Decree nisi entered in favour of wife—Re-marriage before decree is madeabsolute—Right to claim maintenance as wife—Marriage by habit and repute—Maintenance Ordinance (Cap. 76s. 2.
The applicant, who had obtained a decree nisi in divorce proceedings againsther husband K., alleged that she contracted a second marriage with S. andclaimed maintenance for herself from S. before the decree nisi in the divorceproceedings had been made absolute.
Held, that the applicant was not entitled to claim maintenance as wife ofS. under section 2 of the Maintenance Ordinance. In such a cabe, the presump-tion of marriage by habit and repute is not applicable.
1 (1948) 50 N. L. R. 214.
ROSE C.J.—Subramaniam v. Pakkiyaledchumy
^Application to revise an order of the Magistrate’s Court, Jaffna.T. B. Dissanayake, for the defendant petitioner.
•C. Chellappah, for the applicant respondent.
Cur. adv. vult. •
.June 19, 1952. Rose C.J.—
This is an application in revision by the defendant-petitioner, therespondent in a maintenance action, to have the order for maintenancemade in favour of the applicant-respondent (the applicant) set asideon the ground of its illegality in that the applicant-respondent was, atthe time of the order, still the lawful wife of one Appapillai Kumara-singham.
In her application for maintenance the applicant-respondent called.herself the “ wife ” of the defendant-petitioner who, on appearing incourt on the summons returnable date, admitted marriage and paternity,as shown in the relevant journal entry. On this admission the magistrateinquired into the quantum of maintenance and made order in her favour■in a total sum of Rs. 50 viz. Rs. 30 for the applicant-respondent andRs. 20 for the child. The defendant-petitioner’s appeal from this orderwas dismissed by this court on August 31st, 1951. Thereafter on 2ndSeptember, 1951, the defendant-petitioner on discovering that the appli-cant-respondent was still in law the wife of Appapilai Kumarasinghamfiled an affidavit with a copy of the marriage certificate and invited thelearned magistrate to set aside the order for maintenance in favour ofthe applicant-respondent, who rightly declined to interfere because hehad no jurisdiction to entertain such an application.
From this order the defendant-petitioner appealed but at the hearing■of the appeal it was conceded on his behalf that his remedy, if any, wouldbe to seek relief from this court by way of revision. Hence this appli-cation.
Section 2 of the Maintenance Ordinance No. 19 of 1889 permits a“ wife ” to make an application against her husband in the event, of hisfailing or neglecting to maintain her. The duty is cast on the husbandto provide only for his “ wife ”, and if the alleged marriage of an appli-cant for maintenance is invalid by reason of some legal impediment,which makes her stand in some lesser relationship to the alleged husbandthan his “ wife ”, it would seem to be plain from the wording of thesection that she is not entitled to claim maintenance for herself underthe Ordinance.
The applicant-respondent was married to Appapillai Kumarasinghamand in divorce proceedings against him she obtained a decree nisi onNovember 4thf 1941. This decree was not made absolute until April 8th,1952, which is considerably later than the decision of the application'which has given rise to the present proceedings.
GRATIAEX J.—Hensmcvn v. Stephen.
That being so, there cannot, in my opinion, arise even a presumption-of a marriage by habit and. repute between the defendant-petitionerand the applicant-respondent at the relevant times—SathiyanathanSathiyanathan 1 ; Weerapperuma v. Weerapperuma 2.
The defendent-petitioner is, therefore, entitled in my view to succeedin the present application. The previous proceedings in so far as theymake the defendant-petitioner liable to pay maintenanc- to the applicant-respondent are set aside. The applicant-respondent will pay the costsof the present application.