SANCHI v. ALLISA

031-NLR-NLR-V-28-SANCHI-v.-ALLISA.pdf


( 199 )
Present: Jayewardene A.J.
SANCHI v. ALLISA.93—V. C. Kcgalla, 5,273.
Kandyan Marriages Ordinance, No. 3 of 1870, s. 23—Dissolution ofmarriage—Legitimacy of child—Subsequent application, for mainte-nance—Ordinance No. 19 of 1889.
Where in proceedings before an Assistant Provincial Registrarfor the dissolution of a Kandyan marriage no order for the mainte-nance of a child of the marriage was made.
Held, that the proceedings before the Registrar was no bar toan application under the Maintenance Ordinance.
Navaratnam, for defendant, appellant.
February 22, 1926. Jayewardene A.J.—
This appeal raises a question with regard to the constructionof sub-sections (2), (3), (4), and (5) of section 23 of the KandyanMarriage Ordinance, 1870, and the powers of Provincial or Assist-ant Provincial Registrars under them. These sub-sections wereenacted by section 4 of Ordinance No. 1 of' 1919 as amendmentsto the main Ordinance. The appellant, the husband, was suedby the respondent, his wife, under the Maintenance Ordinancefor failure to maintain his child. The parties were married in
1926.
( 200 )
1926.
.Tavkwak-m:.vjs A.J.
tfanchi v.AUisa
December. 1921, and their marriage was dissolved by the Pro-vincial Registrar on August 3, 1925, on the ground of theiri€ inability to live happily together **; of which, under the Ordinanceof 1870. section 23 (1) (4), actual separation from bed and boardfor a year is the test. The husband had made a previous appli-cation for divorce, which had been withdrawn. The secondapplication, which resulted in a divorce, was also at his instance.The child, on whose behalf maintenance is claimed, was born twomonths before the dissolution of the marriage. The appellant hastaken a preliminary objection to the appl'cation on the groundthat as the Assistant Provincial Registrar had refused to makean order for maintenance iu respect of this child at the dissolutionof the marriage the present application cannot be maintained.The learned Police Magistrate has in a very lucid judgment repelledthis objection and made an order for the payment of maintenance.He said: “All that sub-sections (4) and (5) enact is to give thesame force to an order for maintenance made by the AssistantProvincial Registrar as an order made by a Magistrate undersection 3 of the Maintenance Ordinance. Where the AssistantProvincial Registrar fails or declines to make any order formaintenance, it is open to any party to invoke the provisions ofthe Maintenance Ordinance. The case reported in 21 N. L. R. 477,though not on all fours with this, appears to support the viewI have taken/*
The objection is pressed before me.
Now, under sub-section (2) of section 23 .a Provincial or AssistantProvincial Registrar when making an order for the dissolution ofa marriage—
“ (6) May, if he thinks fit, order, by an entry to that effectin the Register of Dissolutions, that the husband shallpay a certain sum of money periodically, or make otherprovision for the maintenance—
Of his wife, provided there is no entry uuder paragraph
(a) hereof for compensation to be made to her;
Of his children/*
Sub-section 3 (a) gives a right of appeal to the Governor inExecutive Council, and 3 (6) directs the order made on appeal tobe entered in the Register of Dissolutions.
Sub-section (4) runs as follows: —
“ (4) An entry or order made under sub-section (2) or (3) hereofshall have all the effect of an order or decree of-a com-petent court in so far as it may be enforced, cancelled,or varied by such court, to all intents and purposes as Jfthe entry or order were an order or decree of such courtbut subject to the limitations hereinafter mentioned/*
( 201 )
And sub-section (5) declares that—
“ For the purposes of the immediately preceding sub-section4 competent court ’ shnll mean—
A Police Court- in the exercise of its jurisdiction under‘ The Maintenance Ordinance, 1889 in respectof an order made under section 8 thereof, wheresugh entry or order directs the payment periodicallyof a sum of money in s6 far as such entry or ordedirects such .payment; ….
The learned Magistrate’s reasoning appears to be correct.Sub-section (2) (b) when it speaks “ of his children ” refers, in myopinion, to children whom the father admits to be his. I do notthink the sub-section gives the Provincial or Assistant ProvincialRegistrar power to inquire into disputed questions of legitimacy.Thi6 view is home out by the terms of the entry required to bemade in the Register of Dissolutions. The entry has to besubstantially in the form F of the schedule to the Ordinance, andthe Registrar after ordering the dissolution of the marriage, has tocertify 44 that, according to the representation of the parties, theyhave had during their marriage …. children as follows: (nameand age) then he has to state the order made by him under sub-section (2) (b). I would construe the words 44 according to therepresentation of the parties " as meaning a statement admittedby both parties. They exclude the idea of a statement made byone party and disputed by the other, but which has been establishedby evidence to the satisfaction of the Registrar. Sub-section (4)read with sub-section (5) makes this quite clear. By sub-section(4) an entry or order made under sub-section (2) and (3) is giventhe same effect as an order or decree of a competent Court, andsuch Court can enforce, cancel, or vary any entry or order in theRegister of Dissolutions as if it were an order or decree passedby itself, but this provision is subject to certain limitations. Thelimitations are to be found in sub-section (5), which defines theterm 44 competent court ” as used in sub-section (4). It includesa Police Court exercising jurisdiction under the MaintenanceOrdinance, 1889, when it acts under section 3 of the Ordinance,but only when the entry or order under sub-sections (2) or (3)directs the payment of a sum of money periodically as maintenance.Under section 3 of theNMaintenance Ordinance a Police Magistratecan either make an order for maintenance or dismiss the application,that is, refuse to make an order. Sub-section (4) read with thelimitation withholds from on order of the Provincial or AssistantProvincial Registrar refusing to make an entry for the payment ofmaintenance, the effect of an order of a competent Court given by
1926.
Jayewak-KBiOS A. J.
Sanchi v.AUisa
( 202 )
19261
Jayewab-XTCNE A.Ji
Sanchi •/*.
the sub-section to an entry or order directing periodical payments.Therefore, there can be no entry having the effect of an order ordecree of a competent Court which could be pleaded as a barto the applicant’s present claim. Further, there is in the presentcase no entry or order in the Register of Dissolutions showingthat the Assistant Provincial Registrar refused to make an orderin favour of the child in question. It is to such an entry or orderalone that sub-section (4) gives the effect of an order of a competentCourt. I do not think it is possible to refer to the AssistantProvincial Registrar’s notes of inquiry to ascertain what con-clusions he had arrived at. I do not think they are admissible,as all the* effective entries or orders have to be entered in theRegister of Dissolutions. If the husband, the appellant, deniedpaternity, the Assistant Provincial Registrar was justified inrefusing to make an order for maintenance, as the child was nota child of the marriage " according to the representation of theparties.’* He could do no more. He had no authority under theOrdinance to proceed to inquire into the question of the child’slegitimacy.
On the facts, the learned Police Magistrate has come to a rightconclusion. The appellant has failed to rebut the strong pre-sumption created by section 112 of the Evidence Ordinance thaG achild born during the continuance of a valid marriage must be con-sidered to be legitimate, unless it can be shown that the husbandhad no access to the wife at any time when such person could havebeen begotten, or that lit* was impotent. The appeal is dismissed.
Appeal dismissed.