041-NLR-NLR-V-39-SITHAYAMMA-v.-SINNIAH.pdf
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Sithayamma v. Sinniah.
1937Present: Moseley J.
SITHAYAMMA v. SINNIAH.
802;—P. C. Teldeniya, 2,584.
Insolvency—Arrears of maintenance—Debt provable in insolvency1—Insolventprotected from arrest—Ordinance No. 7 of 1853, s. 36.
An insolvent is protected from arrest for failure to pay arrears of• maintenance that have accrued at the time of adjudication.
In re Insolvency of J. C. de Silva 12 N. L. R. 140) and Home v. de Kroos(5 S. C. C. 11) referred to.
^^PPEAL from an, order of the Police Magistrate of Teldeniya.
This was an application to commit an insolvent to prison for failure tocomply with an order for maintenance. The learned Police Magistrate, held that the protection in insolvency proceedings was of no availagainst an order-for maintenance.
MOSELEY J.—Sithayamma v. Sinniah.
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H. V. Perera (with him G. E. Chitty), for defendant, appellant.—Theliability to pay maintenance is a civil liability although it is enforcedin quasi-criminal proceedings in order to facilitate recovery (Subaliya v.Kannangaral). It is in effect nothing more than a judgment-debtand a judgment-debt is provable in insolvency proceedings. Theapplicant could have proved her claim in the insolvency proceedingsand the respondent would then clearly have been entitled to the sameprotection available to him in respect of his other debts. We havenot here one of the cases contemplated in the exceptions set out insection 36 of the Insolvency Ordinance (No. 7 of 1853), which woulddebar the insolvent from protection. Although in England alimonyhas been held not to be a debt provable in insolvency, the analogybetween alimony and maintenance is incomplete, for the reason thatwhile arears of maintenance are an ascertained amount which theCourt has no jurisdiction to vary, alimony, including arrears of alimonymay for good cause be modified or even deleted by the Court. (Kerr v.Kerr ’ and Linton v. Linton *.) Alimony is thus, unlike arrears ofmaintenance, a debt incapable of being fairly estimated or accuratelyascertained and therefore not provable. Maintenance falling due afterthe date of- adjudication of insolvency may come into the same classas alimony.
No appearance for respondent.
Cur. adv. vult.
March 23, 1937. Moseley J.—
This appeal raises an interesting point as to whether or not, and if soto what extent, an insolvent is protected against an order committing"him to prison for failure to comply with an order for maintenance, madeunder section 3 of the Maintenance Ordinance, No. 19 of 1889.
I quote the following extract from the order of the learned Magistrate : —“ It has been held that a decree for alimony is not a debt provable inbankruptcy proceedings (In the matter of the Insolvency of J. G. de SilvaMuch less could it be' held that an order for maintenance is a debt provablein insolvency. In my opinion, therefore, the arrears of maintenancedo not fall within the scope of the debts provable in insolvency proceedings.Consequently the protection in the insolvency case is of no avail againstan order for maintenance ”.
In the case cited by the learned Magistrate the following passageoccurs in the judgment of Withers J.:—“It was irregular to arrest the-husband under a writ in execution of that part of the decree Whichrequired him to secure alimony. He cohid not be adjudicated an insolventon that as a debt, for it is not a debt provable in insolvency ”.
Now, I think it is settled law that the liability of a defendant underan order for maintenance is purely a civil liability (Subaliya v. Kannan-gara '), and that the relation subsisting between the parties is that' ofcreditor and debtor. Section 36 of the Insolvency Ordinance providesthat except in certain cases an insolvent shall be free from arrest or
It.,121.* IS Q. B. D. 239 C. A. {52 L, T. 782).
* 2 Q. B. D. 439 {77 L. T. 29).*2 N.L. R. 140.
5 4 A". L. R. .121.
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MOSELEY J.—Sithayamma v. Sinniah.
imprisonment' by any creditor in coming to surrender or during theprotection which is granted to him until his certificate be allowed. Inthe case of In re S. L. M. Ibrahim Saibo1 it was ordered that a prisonershould be discharged under the provision of section 36, it not appearingthat the case came within any of the exceptions in that section. Now,a maintenance order is not expressly included in the exceptions referredto, nor do I think that it can be held to be so by implication.
In Home v. de Kroos ° the words “ any creditor ” were held to belimited, in this application, to any creditor who could have provedunder the Insolvency. It seems to me that that construction is some-what narrow, but assuming it to be the correct one, I would be preparedto Ay that a sum due in respect of arrears under a maintenance orderwhich have accrued prior to adjudication is a debt provable in theinsolvency for reasons which I shall set out.
On this point in the course of his argument Counsel for the appellantreferred me to Dixon’s Divorce Law and Practice (1908 ed.), where atp. 289 it is laid down that “ the amount due under an order for alimonyis a debt provable in bankruptcy; like any other debt, and the dischargereleases the bankrupt from all further claim in respect of all debts anteriorto his bankruptcy ”. The learned author goes on to say that arrearsof alimony accruing after adjudication are not provable in bankruptcyand quotes as his authority Linton v. Linton’'. The ratio decidendiappears to have been that inasmuch as an order for alimony is liable to.be rescinded of varied, it is not capable of valuation. Bowen L.J. in thecourse of his judgment observed that “ It seems to me to be a wild ideato suppose that the liability to pay alimony is a liability capable ofbeing proved in bankruptcy. If it were so, it must be capable of- beingestimated in some way or other, which this liability is not.”
In the latter case of Kerr v. Kerr ‘ the following appears in the judgmentof Williams and Hawkins JJ. : —“ It follows that Linton v. Linton is anauthority for the proposition that, so far as regards permanent alimony,there can be no proof for arrears arising before the receiving order unlessthere is something in the nature of arrears …. which makeit possible in such a case to form that estimate which the Court held.in Linton' v. Linton could not be formed in respect of the subsequentarrears ….”
They went on to hold that the value of the liability both as to the pastand the future was incapable of being fairly estimated. Wright J. ina .dissenting judgment thought that they ought to hold that arrearsdue .and payable before the receiving order are provable in bankruptcytiipl.ess the Court has declared them incapable of valuation.
– The reason for the decision in this case is, to use the words of Williamsand.Hawkins JJ., that “the uncertainty as to the continuance of theobligation to make the payment exists, not only as to future paymentsbut …also as to arrears, for the . Divorce Court will wholly or partially
relieve a husband from payment of arrears, if it is just to do so
Jn .fact, the practice of the Divorce Court so much treats the sumsperiodically payable under its order as a fund for maintenance an4 not
* 1 ].or,.f-z 124.3 52 T. 7S2. '
2 5 S. C. C. .11.1 77 L. T. 29.
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MOSELEY J.—Sithayamma v. Sinnaih.
as property and so much keeps its hand on the obligation to make theseperiodical payments for maintenance, that it is a standing rule that theCourt will not, in the absence of means, make an order enforcing morethan one year’s arrears
In the case of In re’Hawkins1 it was held that arrears of alimonywhich become due after a receiving order cannot be proved by the wifein the bankruptcy of the debtor. Vaughan Williams J. held thatas to future instalments there could be no doubt that the decision inLinton v. Linton (supra) is conclusive. He referred also to “ the broaderground that there can be no proof at all for arrears of alimony ”.
Now, it seems to me that a clear distinction can be drawn betweenarrears of alimony and arrears of maintenance in the light of a debtwhich can be proved in insolvency. The difficulty in the case of theformer is that it is not possible to value them exactly. No such difficultyoccurs in the case of arrears under a maintenance order inasmuchas the Court does not appear to have any power to discharge or modifysuch an order with retrospective effect but only to cancel or alter it, asprovided by section 10 of the Ordinance, with effect from the date ofsuch cancellation or alteration.
Since the argument Counsel for the appellant has drawn my attentionto an Indian case reported in 5 Calcutta 538, which is an authority forthe proposition that in India under similar legislatipn an insolvent whohas obtained a protection order is not liable to arrest or imprisonmentin respect of arrears' of maintenance when such arrears are included inthe schedule filed by him. The judgment further supports the viewthat “ maintenance is a purely civil liability ….”.
I am satisfied therefore that such arrears as had accrued, at the dateof the adjudication are, since they are capable of estimation, a debtprovable in bankruptcy. I am unable to ascertain, on the materialbefore me, the date of the adjudication order. It appears from thepetition of appeal that at the time of the adjudication the appellant owedthe sum of Rs. 230, which was shown as a liability in the insolvencycase. The order of commitment is in respect of Rs. 138. It seemstherefore that the order must be in respect of arrears, the amount of whichwas ascertainable at the date of the adjudication.
I would allow the appeal and set aside the order for imprisonmentwithout prejudice to any steps the applicant may care to take to enforcepayment of monies due under the order for maintenance which haveaccrued subsequently to the adjudication order.
Appeal allowed.
1 (1894) 1 Q. B. D. 25.