089-NLR-NLR-V-11-SELESTINA-FERNANDO-v.-MOHAMADO-CASSIM.pdf
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Present: Mr. Justice Wendt.
SELESTINA FEBNANDO v. MOHAMADO CASSIM.
1908.
October 28,
P. C., Colombo (AMI.), 8,586.
Maintenance—Jurisdiction of Court—Illegitimate child—Residence of child—Residence of defendant—Ordinance No. 19 of 1889.
The Court within the local limits of which an illegitimate childresides has jurisdiction to entertain an application for the mainte-nance of such child against its putative father, although he maybe resident outside the local limits of such Court.
T
HIS was an application by the mother for an order undersection 3 of Ordinance No. 19 of 1889 condemning the defend-
ant to pay a reasonable monthly allowance for the maintenance ofhis illegitimate child. It was admitted by the complainant’s proctorthat the defendant resided outside the jurisdiction of the PoliceCourt of Colombo. The Magistrate (M. S. Pinto, Esq.) dismissedthe application, holding that he had no jurisdiction to entertain it.
The complainant appealed.
L. Pereira, for .the appellant.
There was no appearance for the respondent.
Cur. adv. vult.
October 22, 1906. Wendt J.—
The question upon this appeal is as to the proper Police Court toentertain the complainant’s application for a maintenance order inrespect of her illegitimate child aged four years. The defendant,the alleged – father, is resident at Beruwala, in the District ofKalutara. When he began to reside there does not appear. Thecomplainant deposed that defendant had kept her in a house atPanchikawatta in Colombo, where she was keeping an eating-house;that defendant was residing in her house and maintaining her and. child till six months ago; that, from Panchikawatta they removedto Gintupitiya street, where they lived together, and defendant,continued to maintain her. Upon objection taken by the defendant,the Magistrate held that' he had no jurisdiction. He referred to thecase of In re Sheik Fakrudin,1 as having decided that in Indiamaintenance proceedings can be instituted only in the Court of thedistrict in which the husband or father resides. He also held thatthe offence of non-maintenance was a continuing offence, and sincedefendant was now residing oiitside the jurisdiction, that offencewas now committed outside the jurisdiction. He therefore dis-missed the application.
. Our Maintenance Ordinance is taken from the Indian CriminalProcedure Code of 1882, sections 488 to 490 (under which the case
1 (1884) I. L. R. 9 Bom. 40.
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1908. referred to by the Magistrate was decided), and there is sufficientOctober 22. analogy between the constitution of the Indian Magistrates’ CourtsWekdt J. an<l our Police Courts to make that decision relevant to the questionnow before the Court. That was an application of a wife againsther husband whom she had left. As the husband was entitled tohave his wife living with him, the Court rightly regarded bis offence(if any) as having been committed at the place of his residence, andthat therefore the Court of the district to which the wife had removedcould not take cognizance of it. But can that ratio decidendi beapplied to the case of a man who neglects to maintain his illegiti-mate child, whose residence is properly with its mother and not itsputative father? In my opinion, in such a case the default of thedefendant js committed at the place where his obligation had to befulfilled, viz., at the place of residence of the child, and I am dis-posed to agree with the reasoning by which the Court in the casecited supported the conclusion that that-default was an offence withinthe meaning of the definition contained in section 4 of the IndianCriminal Procedure Code, which has been adopted in section 3 of ourCode. Section 9 of the Ceylon Criminal Procedure Code gives thePolice Court summary jurisdiction over offences committed whollyor in part within its local jurisdiction, and section 135 enacts thatevery offence shall ordinarily be inquired into and tried by a Courtwithin the local limits of whose jurisdiction it was committed.Section 136 gives jurisdiction to the Court within whose limits theaccused is found only in the case of an offence committed in theterritorial waters of the Colony, and therefore outside the locallimits of any Court in the Colony. There is no general provisionthat the complaint against any person shall or may be inquired intoby the Court within whose local limits that person resides. Anexception is expressly made in the case of security to keep the peace(section 81), but in such cases no unlawful act has as yet been done.Even then the normal rule of jurisdiction is respected by givingjurisdiction, not only to the Court of the place where the person isfound, but also to that of the place where the breach of the peace isapprehended.
By an amendment introduced into the Indian Criminal ProcedureCode of 1898 proceedings may now be instituted against the accusedeither in the district where he resides or is where he last residedwith his wife or (as the case may be) the mother of the illegitimatechild.
Por the reasons I have given I hold that the Police Court ofColombo is the proper Court to take cognizance of the present com-plaint. The order of the Magistrate is therefore set aside, and thecase sent back to be proceeded with in due course. The respondentwill.pay the appellant Rs. 10.50 byway of appeal costs. .
Appeal allowed; case remitted.