035-SLLR-SLLR-1994-V2-PERERA-ALIAS-CHARLES-V.-RODRIGO.pdf
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PERERA ALIAS CHARLES
v.
RODRIGO
SUPREME COURT.
BANDARANAYAKE, J.,
AMERASINGHE, J. ANDGOONEWARDENE, J.
S.C. APPEAL NO. 39/93.
Maintenance – Right of divorced wife to claim maintenance until the date ofdivorce in maintenance proceedings instituted before the divorce – Jurisdiction -Maintenance Ordinance, sections 2. 10.
On 06 May. 1986 the respondent – appellant instituted a divorce suit in the DistrictCourt against the applicant – respondent.
On 02 September, 1986 the applicant – respondent instituted maintenanceproceedings against the respondent – appellant claiming monthly maintenancefor herself.
On 19 January, 1989 maintenance proceedings commenced and was put off.
On 06 February, 1989 evidence in the divorce proceedings-was begun anddecree n/s/ was entered. The respondent-appellant agreed to pay Rs. 50,0001-before 31 May. 1989 and return 3 items referred in a list annexed to the plaintbefore 19 February. 1989 whereupon the applicant – respondent agreed towithdraw the maintenance case. On 06 June, 1989 the respondent-appellant paidthe sum of Rs. 50,000/- but there was no evidence of the return of the three items.In the absence of proof of return of the three items the question of the applicant -respondent's obligation to withdraw the maintenance case did not arise.
On 31 May, 1990 the maintenance case was called and the Magistrate overruledthe objection in regard to maintainability and ordered Rs. 27,000/- to be paid asmaintenance for the period ending with the decree absolute which was enteredon 20 October, 1989.
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In appeal the High Court upheld the Magistrate’s order in regard to maintainabilitybut set aside the order in regard to maintenance and sent back the case for theMagistrate to determine the quantum of maintenance for the period in question.
In appeal against the order of the High Court,
Held:
.a
There is a legal duty cast upon a husband to maintain his wife during thesubsistence of the marriage independent of an order from a Magistrate to do so.In a case where a Magistrate orders a husband to pay maintenance to a wife onher application under the Maintenance Ordinance, he does no more than compelthe husband to fulfil that duty. A subsequent decree for divorce, ooerates torelieve the husband of that duty and therefore the Maaistrates' refusal to enforcepayment for any period thereafter would be based not so much on a loss ofjurisdiction but rather on his unwillingness to lend his authority to recoversomething which is not due.
There is no bar to a divorced woman being eligible to receive maintenance fora period anterior to her divorce, and thus being entitled to resort to the provisionsof the Maintenance Ordinance especially where, as here, an application hadbeen made to a Magistrate prior to a decree for divorce being granted.
The liability of the appellant to support the respondent was coterminous withthe duration of their marriage ending with the divorce; at the time the applicant -respondent made her application to the Magistrate's Court for maintenance shewas the wife of the respondent-appellant and had an enforceable right to receivemaintenance and the subsequent decree for divorce did not take away thejurisdiction (which in any event must be considered to relate back to a point oftime when it was properly invoked) to thereafter make an order for maintenancefor a period prior to the divorce.
Cases referred to:
• Menike v. Siyathuwa 42 NLR 53
' Ariyanayagam v. Thangamma 41 NLR 169.
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Pains v Peiris 45 NLR 18.
Fernando v. Amerasena 45 NLR 25.27.
Kent v. Kent AIR 1926 Mad 59.
Sarana v. Heenukku 45 NLR 196.
Francs Fernando v. Vincentine Fernando 59 NLR 522.
Premawansa v. Somalatha 63 NLR 561.
Mihirigamage v. Bulathsinhala 65 NLR 134,
Menike v. Siyathuwa 42 NLR 53 not followed.
APPEAL from judgment of High Court of Negombo.
R.K.S. Sureschandra for Respondent – Appellant-Petitioner
M.D.K, Kutatunga with Leon Fernando for Applicant-Respondent-Respondent.
Cur. adv. vult.
October 04.1993.
S.B. GOONEWARDENE, J.
A brief narrative of the circumstances germane to this appeal is asset out below.
On 2nd September, 1986 the respondent made an application tothe Magistrate’s Court of Negombo for an order directing theappellant who at the time was her husband, to pay her a monthlyallowance as maintenance.
On 6th May, 1986 the respondent also instituted in the DistrictCourt of Negombo a divorce action seeking a decree for divorce avinculo matrimonii against the appellant.
On 19th January, 1989 inquiry into the maintenance applicationcommenced with the respondent giving her evidence, but at the end
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of her examination-in-chief the inquiry was postponed on the motionof Counsel for the appellant for a date to cross-examine her.
On 6 February, 1989 the evidence of the respondent was led in thedivorce action in the presence of both parties and on thatuncontradicted evidence a decree nisi was entered granting her adivorce on the ground of malicious desertion. The evidence of therespondent led before the District Judge on that date, namely the 6thFebruary 1989, contains a statement that the appellant had agreed toreturn to her a sum of Rs. 50,000/- of her money with him, as well asthree> other items referred to in a list annexed to the plaint, particularsrelating to which however are not available in the material presentedto this Court. According to such evidence the agreement had beenthat the appellant would return the money on or before 31 May, 1989and the other three items during the evening of 19 February, 1989. Itis found further stated in her evidence that after such items and cashhad been returned in full, she was agreeable to withdrawing themaintenance application. According to the proceedings of 6 June,1989. in the divorce action,the appellant had paid to the respondenton that date in open Court the sum of Rs. 50,000/-, but there is norecord of his having returned the other items he undertook to return,nor was Counsel for the appellant able, at the hearing before us. topoint' to any material to establish that that was in fact done. In theabsence of proof as to that, the question whether the respondent wasunder any legal obligation to withdraw her application formaintenance does not arise for consideration.
The decree nisi entered in the divorce case was made absolute onthe 20 October, 1989.
On 31 May, 1990 the maintenance application was called in theMagistrate's Court and in the face of a challenge relating to
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jurisdiction mounted by the appellant, oral submissions were maderegarding its maintainability. The Magistrate by his order dated 22October, 1990 upheld the respondent’s contention that theapplication was maintainable and then went on to order the appellantto pay a sum of Rs. 27,000/- as maintenance for a period ending withthe date on which the decree nisi for divorce was made absolute inthe District Court.
The appellant then appealed against such order to the ProvincialHigh Court of Negombo and the learned High Court Judge in theexercise of his appellate powers upheld the submission regardingthe maintainability of the application for maintenance, but correctlyset aside so much of the Magistrate's order as purported todetermine the quantum of maintenance payable, as the only questionwhich was then before the Magistrare was as to the maintainability ofsuch application, The High Court Judge also directed that a freshinquiry be held by the Magistrate to determine the quantum ofmaintenance payable for the period in question.
This appeal is taken against the judgment of the High Court andthe only argument placed before us was based on the fact that noorder for maintenance had been made by the Magistrate in themaintenance application up to the time of the entering of the decreeabsolute on 20 October, 1989 in the divorce action.
Threre is in my view no doubt either in point of principle or onauthority, that if a wife is not faced with a legal disqualification in thatregard, her husband is under a duty to maintain her during thesubsistence of their marriage, such duty terminating only with thetermination of the marriage, nor did Counsel for the appellant seek toargue differently.
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Indeed I would say that an essential concomitant of the maritalrelationship is the husband's duty to support his wife which lasts aslong as the marriage lasts. The point however sought to be made forthe appellant was that, although the Magistrate's Court hadjurisdiction as at the time it entertained the application, since noorder for maintenance had been made up to the time the decree nisiwas made absolute in the divorce proceedings on 20th October1989, the jurisdiction of the Magistrate’s Court came to an end andno order could have been made after that date to pay maintenanceeven for the period prior to the entering of the decree absolute,although the appellant undisputedly had not maintained therespondent during that period.
.Total reliance for this contention was placed upon the judgment inthe case of Menike v. Siyathuwa (,) which had been decided by deKretser, J. sitting alone. In that case the wife (the appellant) hadobtained an order for maintenance against her husband (therespondent) from the Magistrate's Court. Thereafter the parties weredivorced under the provisions of the Kandyan Marriages OrdinanceNo. 3 of 1870 in which proceedings no order for maintenance wasobtained by the wife although the Registrar was empowered to soorder. Subsequently the divorced wife applied to the Magistrate’sCourt to recover arrears of maintenance and this was successfullyresisted by the husband on the basis that she had ceased to be hiswife and could not maintain her claim. On appeal it was contendedfor her that the only mode of getting rid of the order for maintenancewas to have it cancelled under section 5 of the MaintenanceOrdinance and as none of the conditions prescribed in the sectionhad application, the order had to remain in force and had to beenforced. De Kretser J. in response to that contention said (at page54) as follows:-
“The answer to that is that the Ordinance only applied while theconjugal relationship exists, and that the very terms of thatsection and of other sections in the Ordinance indicate that theOrdinance applies only while the relationship of husband andwife continues. It is clear that the Ordinance was intended toapply only while marital relations continued.
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The Ordinance is on the same lines as the correspondingprovisions in the Indian Criminal Procedure Code. Sohini. in hiscommentary on that Code, at page 1035, deals with this veryposition and says “where the cessation of conjugal relations hasbeen proved the responsibility attached thereto must cease,and a Magistrate is competent to stay an order for maintenancealready made and to refuse to issue his warrant and to try allquestions raised before him which affect the rights of a womanto receive maintenance.”
In dismissing the appeal the learned Judge said (also at page 54)thus:
‘It is sufficient to say that the order for maintenance is nowineffective, that the Magistrate is functus officio and that it wastherefore his duty to refuse to continue the proceedings."
If I understand his language the way I think he intended it to beunderstood, which indeed is the way Counsel for the appellanthimself contended it should be understood, it is convenient to state atonce, with much respect to the learned Judge, that I cannot possiblyagree that the Magistrate became functus officio and could notcontinue proceedings. Whilst so saying. I would add that to my mindit is doubtful upon a close examination of it whether the quotationfrom Sohini has this sweeping effect that de Kretser, J. contended forit.
As respects the jurisdiction of a Magistrate’s Court to ordermaintenance in proceedings under the Maintenance Ordinance in asomewhat analogous situation, in the case of Ariyanayagam v,Thangamma<*> de Kretser, J. once again had occasion to hold that anorder made by the District Court in proceedings in the exercise of itsmatrimonial jurisdiction making provision for the maintenance of thechildren of the marriage, operate as a bar to proceedings for theirmaintenance under the Maintenance Ordinance. He relied here tooon a passage from Sohini {ibid) which is stated by him to have theeffect that a woman is not entitled to an order for maintenance from aMagistrate, when a decree for maintenance obtained by her in a civilCourt is in force.
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The importance of that case here lies partly in that de Kretser, J.’sgeneral line of thinking was not followed by Soertsz, J. in Peiris v.Peiris <3> or by Keuneman. J. (with Jayatillake, J. agreeing) inFernando v. Amarasena and partly in comments, reproduced froman Indian, case, found in the latter.
In the former case Soertsz, J. (at page 20) said:
"It seems to me that the Maintenance Ordinance providesspecial machinery for securing maintenance for parties entitledto it, and when resort is made for relief under this Ordinance, ina case like the present one the only question that arises inregard to the jurisdiction of the Magistrate to grant it, is thequestion of fact does the husband refuse or neglect to maintainwife or child’”.
Were I to attempt to express the legal effect of what Soertsz, J.there said, with reference to the circumstances of the instant case,while being mindful at the same time of the fact that the applicationfor maintenance here was made before the decree absolute in thedivorce action was entered, I do not think I would be wrong in statingit thus: “The only question that arises in regard to the jurisdiction ofthe Magistrate to grant it (maintenance) is the question of fact – "didthe husband refuse or neglect to maintain his wife’, for the period forwhich in the event the Magistrate ordered payment?"
In the latter case I referred to i.e. Fernando v. Amarasena H1 there isreproduced (at page 27) the following passage from the judgment ofDevadoss, J. in the Indian case of Kent v. Kent151 thus:
"… what had to be proved to the satisfaction of the Magistratewas that the husband had neglected to maintain his wife' and. where that was proved the Magistrate had jurisdiction”.
And again (at page 27):
•' “A mere order for maintenance (made in a civil suit) is non-
. equivalent to maintaining the wife, and the order whatever maybe its force or nature cannot take away the Magistrate's
■ jurisdiction so long as the husband neglects or refuses tomaintain the wife."
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The case of Sarana v. Heenukku(8) was one where the marriage inquestion was dissolved by the Provincial Registrar under theprovisions of Section 20 of the Kandyan Marriage Ordinance andunder section 20(2) (b), the appellant was ordered by the Registrar topay monthly a sum of Rs. 21- to the respondent for her maintenance.Subsequently the respondent applied successfully to the Magistrate'sCourt for enforcement of the maintenance ordered upon aninvocation of the provisions of section 20(5) and (6) of the KandyanMarriages Ordinance. These provisions state that an order made,inter alia under section 20(2) has the effect of an order of theMagistrate's Court made in the exercise of a jurisdiction underSection 2 of the Maintenance Ordinance and could be enforced bythat Court as it was an order made by it, It was argued for theappellant husband that after the dissolution of the marriage, aMagistrate's Court had no power under section 2 of the MaintenanceOrdinance to direct the payment of any sum of money, Howard, C.J.,rejected this argument and in dismissing the appeal held that inconsidering the limitations on the powers exercisable by a Magistrateunder section 2 of the Maintenance Ordinance, the properinterpretation to be given to section 20 of the Kandyan MarriageOrdinance is that the Magistrate can exercise his power with regardto maintenance in the case of a marriage dissolved under theOrdinance as if the parties were husband and wife.
In the case of Francis Fernando v. Vincentine Fernando<7) the wifehad obtained a maintenance order in her favour from the Magistrate'sCourt subsequent to which there was a decree for divorce granted bythe District Court in which an order for the payment of alimony infavour of the wife was also made. Thereafter, there was anapplication made by the wife under section 10 of the MaintenanceOrdinance for enhancement of the quantum of maintenance earlierordered, which the Magistrate granted. An appeal taken was pressed(as indicated by the report of the judgment) only on the ground thatas by the decree of the Divorce Court the applicant-respondentceased to be the wife of the appellant, she was not entitled to invokethe provisions of the Maintenance Ordinance. Sinnathamby, J. saidthat he did not consider it necessary ‘to decide whether a wife whohad obtained a decree for divorce can thereafter apply for
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maintenance' under section 2 of the Maintenance Ordinance {aposition different from the instant case where at the time theapplication was made the decree for divorce had not been granted)but went on to hold that since section 10 of the Ordinance does notuse the word 'wife' (being the word used elsewhere in the Ordinance)but instead uses the word “person", it is open to a divorced "wife" toapply for enhancement under section 10 of the Ordinance. Althoughthis case affords no direct resolution to the question I am concernedwith on this appeal, at the least it suggests a disagreement bySinnathamby, J. with the statements of de Kretser, J. in Menike v.Siyathuwa that I have already referred to that the MaintenanceOrdinance was intended to apply only while marital relationscontinued and that the Magistrate became functus officio consequentupon the decree for divorce.
In the case of Premawansa v. Somatatha m the Respondentobtained an order from the Magistrate directing the appellant to payher maintenance. Thereafter the parties were divorced under theprovisions of the Kandyan Marriages and Divorce Act. On asubsequent application being made to the Magistrate by theRespondent claiming arrears of maintenance and a distress warrantto recover the same, it was proved to the Magistrate that the marriagehad already been dissolved and it was contended that the earlierorder to pay maintenance could not therefore be enforced, acontention which the Magistrate rejected. On appeal, Thambiah, J.held that a distress warrant could be issued to recover arrears ofmaintenance payable up to the time of the dissolution of themarriage.
In.1 Mihirigamage v. Bulathsinhala ,9) the appellant wife made anapplication under section 2 of the Maintenance Ordinance describingherself in such application as the wife, when in fact the marriage hadended by a decree for divorce entered earlier. The Magistrate afterinquiry refused the application on the ground that the appellant hadat the date of the application ceased to be wife of the Respondentand was therefore not entitled to an order under section 2 of theOrdinance, a position upheld in appeal by Weerasuriya, S.P.J.Whatever view one may take as to the correctness of this decision, by
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contrast, in the instant case as I have already pointed out, theRespondent was the wife of the appellant at the time of herapplication to the Magistrate and was entitled to describe herself assuch and the claim upheld by the Magistrate did not require thepayment of maintenance for any period after the marriage wasdissolved. What must be emphasised is that this decision certainlydoes not purport to say that a jurisdiction which the Magistratepossessed when it was properly invoked during the subsistence ofthe marriage could be subsequently lost with the termination ofmarital relations by divorce as respects payment of maintenance forany period prior to such termination.
The point, I think, that must not be lost sight of is that there isgenerally a legal duty cast upon a husband to maintain his wifeduring the subsistence of the marriage independent of an order froma Magistrate to do so as the words in section 2 of the MaintenanceOrdinance themselves suggest. In a case where a Magistrate ordersa husband to pay maintenance to a wife on her application under theMaintenance Ordinance, he does no more than compel the husbandto fulfil that duty. A subsequent decree for divorce operates to relievethe husband of that duty and therefore the Magistrate’s refusal toenforce payment for any period thereafter to my mind would bebased, not so much on a loss of jurisdiction, but rather on bisunwillingness to lend his authority to recover something which is notdue. In that view of the matter, I see no bar to a divorced womanbeing eligible to receive maintenance for a period anterior to herdivorce, and thus being entitled to resort to the provisions of theMaintenance Ordinance especially where, as here, an applicationhad been made to a Magistrate prior to a decree for divorce beinggranted. Therefore I must with great respect disagree with thethinking of de Kretser, J. as expressed in his judgment in the case ofMenike v. Siyathuwa I started with.
The effect of what is contended for the appellant is to say that byreason of the decree absolute being entered in the divorce action,the respondent for all practical purposes lost a right which inhered inher to be maintained by the appellant during a period when theywere husband and wife. I have not been able to find anything in the
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Maintenance Ordinance to justify a reading of its provisions sonarrowly and restrictiveiy as to secure such a result. It is, to my mind,in the highest degree doubtful that the framers of the MaintenanceOrdinance who introduced it into the Statute book with the obviousintention of expeditiously enforcing the matrimonial duty cast upon aman, also intended that its very terms should be permitted to bemade use of as an instrument wherewith the man could rid himself ofthat duty. Indeed for myself I would be slow to read the statute in thatway. It does not require much imagination to see that if the appellant’sargument is upheld, it could well act as an encouragement to anyscheming husband to attempt to delay maintenance proceedingspending in a Magistrate's Court with the object of evadingcompliance with his duty to maintain his wife, in the expectation thatthe decree in a parallel divorce proceeding would wipe out the rightto enforcement of that duty.
For the purpose of the present appeal it is sufficient to say that theliability of the appellant to support the respondent was coterminouswith the duration of their marriage ending with the divorce, that at thetime the respondent made the application to the Magistrate's Courtfor rfiaintenance she was the wife of the appellant and had anenforceable right to receive maintenance and that the subsequentdecree for divorce did not take away the jurisdiction of the Magistrate(which must I think in any event be considered to relate back to apoint of time when it was properly invoked) to thereafter make anorder for maintenance for a period prior to the divorce.
The judgment in appeal of the High Court is accordingly affirmedand this present appeal is dismissed with costs.
BAND ARAN AYAKE, J. -1 agree.
AMERASINGHE, J. -1 agree.
Appeal dismissed.