( 477 )
Present: De Sampayo J.
PINCHI AMMA v. MUDIYANSE.
37—P. C. Panwila, 4,349.
Kandyan marriage—Dissolutionby mutual consent—Noorder for
maintenance of children by Provincial Registrar—Order by PoliceCourt.
Where a Provincial or Assistant Provincial Registrar ■ does notmake an order for the maintenance of children on the dissolution of a Kandyanmarriage, the Police Court may make an order for maintenance under theMaintenance Ordinance of 1889.
•pHE facts are set out in the judgment.
H. Z. Fernando, for the appellant.—Section 4 of OrdinanceNo. 1 of 1919 gives the Provincial Registrar the power to make anorder for the maintenance of children if he thinks it proper to doso. The fact that the Provincial Registrar did not do so is tanta-mount to a refusal to do so. The only remedy open to a partyaggrieved by the order of the Provincial Registrar is to petitionthe Governor. The respondent cannot proceed under the Main-tenance Ordinance.
Spencer Rajaratnam, for the respondent, not called upon.
( 478 )
January 20, 1920. Db Sampayo J.—
This is an application for maintenance by the mother of a childagainst the father. The parties are Kandyans. It appears themarriage was dissolved of mutual consent by the AssistantProvincial Registrar on September 26, 1919. This application wasmade on October 10, 1919. Counsel for the defendant appellantsubmits that the order allowing maintenance in this case is withoutjurisdiction. The Amending Kandyan Marriage Ordinance, No. 1of 1919, provided by section 4 that in making an order for thedissolution of a marriage, the Provincial or Assistant ProvincialBegistrar “ may, if he think fit, order by an entry to that effectin the register of dissolutions that the husband shall pay a certainsome of money periodically, or make other provisions for themaintenance of his wife and of his children.” It is quite clearthat it is not obligatory on the Provincial or Assistant ProvincialBegistrar to make such an order, but if he has made an order,it may be that by operation of sub-section (4) and sub-section (5)the order made may prevent the Police Court from making anorder again under the general Maintenance Ordinance of 1889,but the Assistant Provincial Begistrar in this matter did not makeany such order. Consequently, I think, the general provisions ofthe Maintenance Ordinance, so far as the children are concerned,still apply to the present parties. It is then argued that an agree-ment which is recorded in the register amounts to a waiver ofcompensation .in respect of the child. The same section of theAmanding Ordinance provides that if the parties to the dissolutionshall have agreed upon any compensation to be paid to either orboth owing to such dissolution, the Begistrar shall enter the termsof such agreement in the Begister of Dissolutions. Now the agree-ment the parties came to before the Assistant Provincial Begistrarwas that of the two children, the male child of the age of four yearsShould be taken by the father, the defendant, and the female childof the age of one year should be taken by the mother, the applicant.The present application is not made in pursuance of the agreement,but the agreement was by no means an agreement as to anycompensation. It was merely an agreement as to the custodyof the children. The applicant may have the custody of the femalechild now, but I do not see anything in the Ordinance or anygeneral principle of law by which the defendant can be held to havebeen relieved of the primary obligation of a father to maintain hischildren. In my opinion the Magistrate to whom these points oflaw were submitted took a very accurate view, and I think hisorder is quite just.
The appeal is dismissed.
PINCHI AMMA v. MUDIYANSE