124-NLR-NLR-V-50-SEBASTIAN-PILLAI-Applicant-and-MAGDALENE-Respondent.pdf
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Sebastian Pillai v. Magdalene
1949Present: Gratiaen J.
SEBASTIAN PILLAI, Appellant, and MAGDALENE, Respondent8. C. 568—M. O. Kayts 10,641
1Maintenance Ordinance—Issue of summons—Examination of applicant onoath or affirmation—Not condition precedent to issue of summons—Chapter 76—Section 14.
In regard to section 14 of the Maintenance Ordinance, the failureto examine the applicant on oath or affirmation before the issue ofsummons is at best an irregularity which does not necessarily vitiateall subsequent proceedings.
Namasivayam v. Saraswathy {1949) 50 N. L. R. 333 dissented from.Rodina v. Soda (1900) 4 N. L. R. 109 followed.
A.PPEAL from a judgment of the Magistrate, Kayts.
jS. Nadesan, with A. M. Ameen, for the defendant appellant.
C. Thiagalingam, with V. Arulambalam, for the applicant respondent.
Cur. adv. vult.
1 Fernando v. Bandi Silva (1917) 4 O. W.R. 9.
GRATIAEN J.—Sebastian Pillai v. Magdalene
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September 7, 1949. Gratia ex J.—
In these proceedings the applicant, who is the wife, sued her husbandfor maintenance. After trial the learned Magistrate ordered the husbandto pay to the applicant a sum of Rs. 25 per mensem.
The parties had been married for over ten years and since 1946 therehad been unpleasantness from time to time between them, but in myopinion the facts disclosed in the evidence leave reasonable grounds forthe belief that the union has not broken down irreparably. As so oftenhappens in such cases, the husband and wife have so far had littleopportunity of enjoying each other’s company except in the presence oftheir respective relatives. Without attempting to generalise in mattersof this sort, I am content to say that in the present case the arrangementhas not worked well, and that the interference of the proverbial “ in-laws ,rproved to be a source of constant irritation. It is common ground thatthe first year of the marriage was spent in the house of the bride’s parents.It was then decided that they should live alone, but they unwiselyselected a house situated in the same compound as that of his sister.These two women quarrelled incessantly, and the husband’s attemptsto associate himself with these petty squabbles aggravated the situation.In November, 1946, the wife left him after a quarrel and returned to herparents. In 1947, through the good offices of a mutual friend, a reconci-liation was effected, and for some months the parties lived togetheragain. In March, 1948, there was another incident, and the wife left herhusband a second time.
The basis on which the wife initiated proceedings under the Mainten-ance Ordinance was that her husband “ had deserted her on March 30,1948, and failed to maintain her ” since that date. The trial was fixedfor December 10, but on that date a very sensible adjustment was arrivedat whereby the wife agreed to return to her husband on condition thathe provided a separate house in which they could live together relievedof the irksome and irritating presence of his sister. The evidence showsthat the husband thereafter honoured the terms of this arrangement.On February 11, 1949, however, the wife’s brother, acting no doubtwith good intentions but nevertheless unwisely, offered to vacate hisown house so as to provide a different residence in which the husbandand wife should make a new start in their married life. This offer wasin the first instance accepted by the husband but within a week heretracted, and he insisted that the house which he had himself selectedin terms of the original agreement should be their home. Some discussionseems to have arisen in Court on February 18, 1949, as to the suitabilityof this house, and the wife, though she alleged for the first time that herhusband had'been cruel to her, agreed to resume married life with him" provided that the house that is taken is agreeable to her ”. By thetime the case was called a week later she had changed her mind andstated unequivocally that she was no longer prepared to live in' any housewith her husband.
As the negotiations had broken down the case went to trial. Thegenuineness of the husband’s invitation to take his wife back was not indispute, but the issue which arose for adjudication was whether the wife
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QRATXAEjST J.—Sebastian PiUai v. Magdalene
was nevertheless entitled to refuse his offer of a resumption of consortiumon the ground that he had “ habitually treated her with cruelty ” withinthe meaning of section 3 of the Maintenance Ordinance (Chapter 76).The finding of the learned Magistrate was that the husband had “ sub-jected his wife to continuous neglect and sometimes cruel treatment ”.No express finding of habitual cruelty has been recorded, but he heldthat the wife had good and sufficient grounds for refusing to return toher husband, and made an order for maintenance at the rate of Rs. 25per mensem in her favour. The present appeal is from this order.
The case has eaused me much anxiety. I am very conscious of theinestimable advantage which the learned Magistrate has enjoyed overme in having seen and heard the witnesses who testified before him inregard to this unhappy dispute. I am also conscious that, particularlyin a matrimonial dispute, an appellate tribunal, with only “ the coldwritten word ” to guide it, should be slow to disturb the findings of factof the original Court unless there is compelling reason to the contrary.Watt (or Thomas') v. Thomas1. Upon an analysis of the relevant evidencejudged in the light of the surrounding circumstances, I have arrived atthe conclusion that in the present case the learned Magistrate’s findingsmust be disturbed. To begin with, the wife had made no complaint ofcruelty to the mutual friend who had brought about the earlier reconci-liatipn, but the circumstance which has particularly influenced me isone which the learned Magistrate does not seem to have consideredat all. Can the wife’s evidence be accepted as true when she complainsthat she has been the victim of such habitual cruelty at her husband’shands that she genuinely and reasonably fears, as she says she does,that a resumption of consortium would lead to a repetition of such treat-ment ? The alternative solution is that she has greatly exaggerated herversion of past incidents, and that all that had really taken place mightfairly be attributed to “the wear and tear of married life ” for whichsome allowances should be made in this imperfect world—vide Squire v.Squire 2. It seems to me that the wife has, perhaps unconsciously,exaggerated in her mind the events of her past unhappiness in so far as itis attributed by her to cruelty at her husband’s hands. The truth is thathe had displayed too much partisanship in the many quarrels betweenhis wife and his sister, and that he now realises the folly of such inter-ference. The safest guide to the problem, in my opinion, is the circum-stance that on three occasions after these proceedings commenced the wifehad consented to return to her husband upon the condition that theirhouse should really be their own. This convinces me that she enter-tained no fears as to their future happiness as man and wife providedthat they were protected from the interference of bis relatives. Thehusband has been very foolish in the past, but I think that so long asthere is still room for a happy ending it would be wrong to make a judicialorder the effect of which would be to separate the spouses for ever. Iaccordingly make order setting aside the order of the learned Magistrate,but upon certain conditions which I regard as necessary in order to imple-ment the terms of the original settlement which the parties had effected inCourt on December 10, 1948. If within three weeks of the date on which1 (1947) A. O. 484.2 (1948) 2 A. E. R. at p. 56.
GRATIAEN J.—Sebastian Pillai v. Magdalene
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the record is returned to the Magistrate’s Court the husband provides aseparate matrimonial home which is suitable to their station in life,the application of the wife will be dismissed. If any disagreement shouldarise as to the suitability of the house selected by the husband, thatdispute should be referred by the learned Magistrate to the ProbationOfficer of the district whose decision in the matter shall be final. Shouldthe husband fail to provide a suitable house within the time prescribedin this judgment, the order for maintenance made by the learnedMagistratein favour of the wife will stand. In all the circumstances of the caseI think that it is in the interests of justice that the husband should pay hiswife’s costs of this appeal and in the Court below, and I make orderaccordingly.
It is evident that the future happiness of these parties will depend onthe spirit in which they will attempt to honour their solemn obligationsto each other. The hope that there will be a genuine reconciliation bet-ween them underlies my judgment in this case. As LordMacmillanpointedout in Watt (or Thomas) v. Thomas (supra) “ a Court of law provides atthe best hut an imperfect instrument for the determination of the rightsand wrongs of the most personal and intimate of all human relationships,that of husband and wife. ISTo outsider, however impartial, can enterfully into its subtle intricacies of feeling and conduct ”. It is nowleft to the parties to make or mar their future happiness.
There is one other question which was raised in the argument beforeme. Section 14 of the Maintenance Ordinance (Chapter 76) requires aMagistrate before issuing summons in a Maintenance action to examinethe applicant on oath or affirmation, and it is only after such exami-nation that he is justified in issuing process. The purpose of this sectionis to protect a party from the vexation of having to defend himself inproceedings of this nature until there is sworn evidence on the recordmaking out a prima facie case against him. In the present action thelearned Magistrate failed to comply with section 14, and there can heno doubt that the issue of summons against the husband was premature.The husband would accordingly have been entitled, if he so chose, tohave the order for summons vacated. This however he did not do.On the contrary he submitted to the jurisdiction of the Court and anorder was made against him after witnesses were called by both sides.The question is whether the irregularity in failing to comply -with section14 necessarily vitiates all the subsequent proceedings. In Podina v. Sada1Bonser C. J. held that failure to comply with section 14 did not vitiatethe proceedings hut was at best an irregularity against which the husbandcould object if he could satisfy the Court that he had been prejudicedby the irregularity. In Namasivayam v. Saraswathy2 however, mybrother Basnayake took a contrary view. He held that the issueof a summons in strict accordance with the requirements ofthe section was a condition precedent to the assumption by a Magistrateof jurisdiction under the Maintenance Ordinance, and that althoughthere was an inter partes trial without objection to the irregularity allthe proceedings must he quashed. With great respect I feel that Imust follow the judgment of Bonser C.J. with which I am in agreement.
1 (1900) 4 N. L. R. 109.2 (1949) 50 N. L. R. 333; 39 C. L. W. 71.
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BASNAYAKE J.—-ICirihisinghe v. The Archbishop of Colombo
It seems to me that whether or not the proceedings were regularly com-menced under section 14, it is section 2 of the Ordinance and not section14 which vests a Magistrate with jurisdiction after trial to make orrefuse an order for maintenance in favour of an applicant. The conditionprecedent to an order for maintenance is in my opinion the yuoq/furnishedat the trial that the respondent had neglected or refused without justcause to maintain his wife or his children as the case may be. I accord-ingly overrule Mr. Nadesan’s objection on this point. To order a freshtrial at this stage would benefit neither party.
Order set aside on conditions.