052-NLR-NLR-V-45-SARANA-Appellant-and-HEEN-UKKU-Respondent.pdf
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HOWARD C.J.—Sarana and Heen Vkku.
19MPresent: Howard C.J.SARANA, Appellant, and HEEN UKKU, Respondent.
113—M. O. Kandy, 10,285.
Kandyan Marriage Ordinance {Cap.96),section 20, sub-section2(b)and(6)—
Marriagedissolved—Husbandordered to pay maintenance towife—-
PowerofMagistrate’s Courtto enhance maintenance.
WhereaKandyan marriagewasdissolved by theProvincialRegistrar,
acting under the provisions of section20 of the Kandyan Marriage
Ordinance, and the husband was ordered to pay the wife a sum of tworupees as maintenance,—
Held, that on an application for an enforcement of the order undersection 20, sub-section (6), it was competent for the Magistrate’s Court toenhancethesum awarded bywayof maintenance.
PPEAR from an order of the Magistrate of Kandy.
A. G. de Silva, for appellant.
No appearance for respondent.
Gut. adv. vult.
March 22, 1944. Howard C.J.—
■a
This is an appeal from an order of the Magistrate’s Court, Kandyrdirecting the appellant to pay a sum of Rs. 4 per month for the mainten-ance of the respondent. The marriage of the appellant and the respondentwas dissolved on October 6, 1942, by the Provincial Registrar acting underthe provisions of section 20 of the Kandyan Marriage Ordinance (Cap. 96).Under section 20 (2) (b), the appellant was ordered by the Provincial
i 30 N. L. R. 247.
HOWARD C.J.—Sarana and Heen Ukku.
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Registrar to pay monthly a sum of Rs. 2 to the respondent for her main-tenance. On May 28, 1943, the respondent applied to the Magistrate'sCourt, Kandy, for the enforcement of the order of the Provincial Registrarunder section 20 (6). On November 19, 1943, a motion was filed askingfor the enhancement of the rate of maintenance. On December 10, 1943,the Magistrate, Kandy, after hearing evidence, directed the appellant topay maintenance to the respondent at the rate of Rs. 4 per month,commencing from December 31, 1943. It is contended that the Magistratehad no power to vary the order of the Provincial Registrar. Sub-sections
and (6) (a) of section 20 of (Cap. 96) are worded as follows: —
“ (5) An entry or order made under sub-section (2), (3) or (4) hereofshall have all the effect of an order or decree of a competent Court in sofar as it may be enforced, cancelled, or varied by such Court, to allintents and purposes as if the entry or order were an order or decree ofsuch Court, but subject to the limitations hereinafter mentioned.
For the purposes of the immediately preceding sub-section‘competent court’ shall mean—
(a) a Magistrate’s Court in the exercise of its jurisdiction under theMaintenance Ordinance, in respect of an order made undersection 2 thereof, where such entry or order directs the paymentperiodically of a sum of money in so far as such entryor order directs such payment:
Provided that an entry or order in favour of the womandivorced shall be cancelled only upon proof that she has beenhabitually cohabiting with any man since the date of suchorder.”
It would appear, therefore, as if a Magistrate’s Court had pri-ma faciejurisdiction to enforce and vary an order of the Provincial Registrar. Itis urged, however, that, after the dissolution of a marriage, a Magistrate’s;Court has no power under section 2" of the Maintenance Ordinance (Cap. 76)to direct the payment of any sum of money. In support of this contentionI was referred to the judgment of de Kretser T., in MeniJti v. Siyathwwa1.In this case the appellant obtained an order for maintenance against herhusband, the respondent. Thereafter the parties were divorced under theKandyan Marriage Ordinance. But the order of dissolution of themarriage was not accompanied by any order for the payment of periodicalsums of money. It was held that a subsequent application by therespondent for arrears of maintenance could not be maintained as therelationship between the parties was no longer that of husband and wife.In coming to this decision de Kretser J. followed various Indian casesinterpreting provisions of the Indian Criminal Procedure Code corre-sponding to the provisions of the Maintenance Ordinance (Cap. 76). Inmy opinion M eniki v. Siyathuwa has no application inasmuch as in thepresent case the Provincial Registrar has made, as he was empowered todo, an order for monthly payment under section 20 (2) (b) of Cap. 96 andspecific provision for the. enforcement and variation of such an order ismade by sub-section (5). In considering the limitations on the powers
i 42 N. L. Jt. 53.
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Funchibanda and Ratnam.
exereiseable by the Magistrate under section 2 of the MaintenanceOrdinance I think the proper interpretation to be given to section 20 ofCap. 96 is that the Magistrate can exercise his powers with regard tomaintenance in the case of a marriage dissolved under Cap. .96, as if theparties were husband and wife. In my opinion the Magistrate came to aright conclusion and the appeal is dismissed. There will be no order asto costs.
Appeal dismissed.