Namaaivayam v. Sara&wathy
1949Present : Basnayake 3.NAMASIVAYAM, Appellant, and SARASWATHY, RespondentS. C. 1,192—M. C. Mallakam, 6,080Maintenance-—Issue of summons—No examination of applicant on oath oraffirmation—Jurisdiction of Magistrate—Maintenance Ordinance—Section 14,
It is a condition precedent to the issue of summons in proceedingsunder the Maintenance Ordinance that the applicant should he examinedon oath or affirmation and that the Magistrate should be satisfied thatthere is sufficient ground for proceeding.
BASNA.YAK.E J.—N amasivayam v. So. raswathy
A PPEAL from-a judgment of the Magistrate, Mallakam.
H. W. Tam.biah, with Sharvananda, for the defendant appellant.
No appearance for the respondent.
Cur. ado. vult.
February 11, 1949. Baskayakb J.—
On June 19, 1948, the applicant, one Saraswathy, (hereinafter referredto as the applicant), wife of Sinnathurai Namasivayam, the defendant-appellant, (hereinafter referred to as the defendant), made an applicationfor maintenance, in writing, as required by section 13 of the MaintenanceOrdinance (hereinafter referred to as the Ordinance), in which she com-plained that her husband having sufficient means failed and neglectedfor the last eight months to maintain her and hie child Thavamany Deviaged six years and asked that the defendant be ordered to make a monthlyallowance for their maintenance under section 2. On the same daywithout following the procedure indicated in section 14 the learnedMagistrate made order that summons should issue on the defendant.
Learned counsel for the defendant submits that the failure of thelearned Magistrate to follow the procedure prescribed by section 14 of theOrdinance vitiates all subsequent proceedings had on the application. Ithink learned counsel’s submission is entitled to succeed. Section 14 isimperative in its language and it requires the Magistrate to examine theapplicant on oath or affirmation and record such examination and issuesummons if there is after such examination sufficient ground forproceeding. It appears therefore that the judgment of the Magistratethat there is sufficient ground for proceeding is a condition precedentto the issue of summons and to all subsequent proceedings. Althoughthe enactment is affirmative and does not expressly prohibit the issue ofsummons without the examination contemplated therein, it is a. rufeefconstruction that “ every statute limiting anything to be in one form,although it be spoken in the affirmative, yet it includes in itself anegative”1. Another rule of construction that should be noticed in thisconnexion is that “ if an affirmative'statute, which is introductory of anew law, direct a thing to be done in a certain manner, that thing shallnot, even although there be no negative words, be done in any othermanner ” 2…'
A Magistrate’s jurisdiction under the Maintenance Ordinance is aspecial jurisdiction created by the statute and it is a rule of constructionthat when a statute confers jurisdiction upon a tribunal of limitedauthority and of statutory origin, the condition and qualificationsannexed to the grant must be strictly complied with. The fact that .thedefendant raised no obj ection to the proceedings in the trial court does notin my view make legal what has not been done according to law.' Thelegislature has in its^ wisdom enacted this provision as a safeguard againsta person being sumnioned on an 'unsworn allegation to anSWer^Charges
1 Viner’s Abridgement, Tit. Neg. A. pl. 2.1 Dwarris on Statutes,
BASNAYAKE .r.—Hatnasivayam V. Saraswathy
of neglect or refusal to maintain his wife or child legitimate or illegitimate.(Before a summons can issue it requires the judgment of a Magistrate asto whether the allegation is one that needs inquiry, which judgmentmust be upon evidence on oath or affirmation. The evidence takenprior to the issue of summons is in the nature of a preliminary investiga-tion, for section 16 provides that all evidence taken by the Magistrateunder the Ordinance shall be taken in the presence of the defendant. Sothat when the defendant appears the applicant's evidence must berecorded de novo. This is not a case in which in my view the maximQuilibet potest renuntiare juri pro se introducto can be applied becausethis is not a statute designed to benefit a particular person or class ofpersons. It is and has been held to contain our entire law governingmaintenance of wives and children1. The object of the statute beingone of general policy, the conditions prescribed by the statute are indis-pensable and when a statute directs a particular mode of proceeding orgives a particular form, that form must be observed 2.
The fact that the statute imposes a duty on the Magistrate and noton a party does not affect its imperative character 3. In Podina v. Soda 4Bonser C. J., while holding that the failure to comply with section 14 wasirregular, seems to have taken the view that the irregularity did notvitiate the proceedings. With the greatest respect I find myself unableto share that view.
The other question that has been raised is that the applicant is notentitled to maintain the present claim in view of the fact that a previousapplication by her on December 15, 1947, in M.C., Mallakam CaseNo. 4,847 was dismissed. The written application made on that occasionreads :
“ I, Saraswathy, wife of Sinnathurai Namasivayam of Ghulipuramdo hereby complain to this court that the respondent having sufficientmeans did fail and neglect to maintain me—his lawful wife—and hischild Thavamany Devi aged 5 years for the past one month. Therespondent earns Rs. 125 per mensem.
“ Wherefore I pray that the respondent be ordered to pay me andto his child maintenance in terms of section 2 of 18 of 1889.”
The learned Magistrate, as in the instant case, without complying withsection 14 of the Ordinance issued summons on the defendant, whoappeared on January 10, 1948. On that date the Magistrate's recordreads :
“ 10.1.48. Applicant : Saraswathy—present.
Respondent : S. Namasivayam—present.Summons served on respondent.
Respondent present. He denies marriage and paternity.Inquiry on 31.1.48 .”
'Anna, Perera v. EmaMano Nonis (1908) 12 N. L. R. 263.
J&enikhatny v. Lolcu Appu (1898) 1 Sal. 161.
*Dwarris on Statutes, p. 611.
*Maxwell on Interpretation of Statutes, p. 378, 9th Edn.
*(1900) 4 H. S. R. 109.
BASNAYAKJE J.—Namasivoyam i>. Saraswathy
On January 31,1048, the inquiry was postponed owing to the applicant’sabsence, and on February 14, 1948, owing to the defendant’s absence,and on March 13, 1948, owing to the absence of the proctor for thedefendant. On April 3, 1948, the applicant was again absent owing toillness. Thereafter on April 17, 1948, the case was again postponed.The reason is thus recorded : “ Parties moving. Call case on 1.5.48 ”.After another postponement, on May 15, 1948, the inquiry was fixed forJune 5, 1948. On that day the applicant was absent and the applicationwas dismissed.
There has been no adjudication on the merits and the dismissal of theapplicant’s application does not operate as a bar to a fresh application.The cases of Anna Perera v. Emaliano Nonis1 and Beebee v. Mahmood2 areauthority for the proposition that an applicant whose application hasbeen dismissed on the ground of Jier failure to appear on the day fixedfor the hearing without any kind of inquiry into the merits is notprecluded from making a fresh application.
In view of the opinion I have formed on the first question arising onthis appeal I set aside these proceedings and send the case back so thatthe Magistrate may proceed de novo from the stage indicated in section 14of the Ordinance.
I make no order as to costs in view of the defendant’s failure at theappropriate stage of the proceedings to raise the objection that has nowbeen taken.
(1908) 12 N. L. It. 263.
(1921) 23 N. L. B. 123.
NAMASIVAYM, Appellant, and SARASWATHY, Respondent