005-NLR-NLR-V-45-PEIRIS-APPELLANT-and-PEIRIS-RESPONDENT.pdf
SOERTSZ J.—Peiris and Peiris.
Iff
1SJ40Present: Soertsz J.PEIRIS, Appellant, and PEIRIS, Respondent.
249—M. C. Colombo, 16,453.
Maintenance—Applicationformaintenanceunder the. Ordinance—Order for
alimony in the District Court—Application not barred.
An applicationfor maintenance under theMaintenanceOrdinance is-
not barred by an order for alimony made in favour of the applicantand her child in the District Court in which the applicant had sued thedefendant for judicial separation and obtained it.
A PPEAE from an order of the Magistrate of Colombo.
N. Nadarajah (with him JA A. T. Per era) for applicant, appellant.
E. B. Wikremanayake for defendant, respondent.
Cur. adv. vul
December 20, 1940. Soertsz J.—
This was an application by the wife of the defendant for a maintenance?allowance for herself and for her child by the defendant.
This application was opposed on the ground that it was barred by airorder for alimony made in favour of the applicant and of the child incase No. 86 D. C., Colombo, in which the applicant had sued the defendantfor a decree of judicial separation and obtained it. She was given thecustody of the child. That decree was affirmed in appeal.
After the decree for judicial separation had been entered, the defendantwent into the Insolvency Court, and was adjudicated an insolvent onMarch 3, 1938. On December 20, 1938, the District Judge refused &
SOEKTSZ J.—Peiris and Peiris.
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certificate of conformity and said that he had “ every reason to believethat the insolvent filed this action in order to avoid having to pay hiswife the alimony /she claims and the amount for which she obtained adecree against the insolvent The adjudication is still in force. Inthis state of things, the law must surely stand compromised if it werehelpless against the unscrupulous ingenuity of the defendant. The- learned Magistrate thought that he was bound by the judgment in thecase of Aranayagam v. Thangamma1, and that he had no alternativehut to dismiss the application.
In the case referred to, my brother de Kretser following what was saidin a note in Sohoni’s commentary at page 1034 on the authority of acase cited as reported in 2 Weir 615—the report itself not being available—held that a woman was not entitled to an order from a Magistrate when* decree for maintenance obtained by her in a civil Court is in force.
The question, then, is whether the decree for alimony obtained in thesuit for judicial separation can be said to be in force in the circumstancesof this case. The facts upon which de Kretser J. based his judgment arenot to be found in the judgment. They, probably, were entirelydifferent from the facts in this case. In this case, there is the fact thatthe defendant himself, soon after the decree for alimony was made, gothimself adjudicated an insolvent. In the Bombay case to which deKretser J. makes anonymous reference, Patkar J. with whom Wild J.concurred said:“In the present case, though there was a decree for
maintenance ya favour of the wife, the decree in fact could not be executedan account of the insolvency proceedings initiated by the husbandthough there is a decree of the civil Court in existence,it is merely a paper decree …. a mere decree of a civil Courtawarding maintenance is not equivalent to maintaining the wife. Underthese circumstances we think that the Magistrate has jurisdiction….. to pass an order for maintenance ’’—In re Moha/med AliMithabhaP- Reference is made in the course of the judgment to the casein 2 Weir noticed by de Kretser J.
There is another Indian case which deals with the same point, namely,Kent v. Kent3. In the course of his order Devadoos J. said: “ The third(Contention is that there is an order of the Probate Division and AdmiraltyDivision of the High Court in England whereby the petitioner is directedto pay his wife so much alimony per month, and it is seriously urgedbefore me that this order is a bar to an application under section 489 ofthe Criminal Procedure Code. It is admitted that the wife finds itimpossible to execute the order for alimony against the petitioner who isa planter in the Mysore State. Whether the order' is executable or notis immaterial for the present purpose. The section gives jurisdiction tothe Magistrate to award maintenance if he is satisfied that a person hadneglected or refused to maintain his wife or child …. A mereorder for maintenance is not equivalent to maintaining the wife: And theorder whatever may be its force or nature, cannot take away the Magis-trate’s jurisdiction so long as the husband neglects or refuses to maintainthe wife
* AJ.R. {1930) Bom. p. 144.
3 A.T.R. {1926) Mad. 59.
1 41 N. L. B. 169.
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SOERTSZ J.—Wijcyratne and Silva.
Section 488 of the Criminal Procedure Code of India which is thesection considered and interpreted in these judgments, is substantiallythe same as section 2 of our Maintenance Ordinance, so that thesedecisions are apposite. It seems to me that the Maintenance Ordinanceprovides special machinery for securing maintenance for parties entitled,to it, and when resort is made for relief under this Ordinance, in a caselike the present one the only question that arises in regard to the juris-diction of the Magistrate to grant it, is the question of fact ‘ does thehusband refuse or neglect to maintain wife or child ’? The questionwhether maintenance has been allowed in other proceedings of a differentnature will be relevant to show that the maintenance so decreed is beinggiven. If the mere fact that there is a ' paper decree ’ for alimony issufficient to repel a claim for maintenance, then it must be a sufficientperformance of what is asked for, to offer a stone to one who comes forbread.
I set aside the order of the Magistrate and send the case back for theamount of maintenance to be determined. I see that in section 6 of heraffidavit the applicant says -that the order in the separation case isconclusive in regard to the amount of maintenance she is entitled to forherself and the child. I do not propose to say anything in regard tothat. The Magistrate will, no doubt, consider that submission if it ismade to him. The appellant will have the costs of this appeal.
Set aside.