037-NLR-NLR-V-70-T.-E.-MACK-Appellant-and-L.-M.-MACK-Respondent.pdf
SRI SKANDA RAJAH, J.—Mack v. Mack
157
1965Present: Sri Skanda Rajah, J.T. E. MACK, Appellant, and L. M. MACK, RespondentS. C. 1008/1964—M. C. Colombo, 31736/AMO
Maintenance—Provisional maintenance order made in the United Kingdom—Enforce-ment of it in Ceylon—Scope—Maintenance Orders {Facilities for Enforcement)Ordinance {Cap. 92), s. 6.
Where a court in England has made against a father residing in Ceylon aprovisional order concerning the maintenance and custody of his children,that part of the ordor concerning maintenance may be enforced in Ceylon inaccordance with the provisions of section 6 of the Maintenance Orders(Facilities for Enforcement) Ordinance.
Appeal from an order of the Magistrate’s Court, Colombo.
A. G. de Silva, with B. T. Eliyatamby, for Defendant-Appellant.
J.W. Subasinghe, for Applicant-Respondent.
Cur. adv. tmil.
January 13, 1965. Sri Skanda Rajah, J.—
This appeal is from an order made by the learned Chief Magistrate ofColombo in respect of a provisional order for maintenance of thedefendant-appellant’s two children made in the United Kingdom andsought to be enforced by the Magistrate’s Court of Colombo within whosejurisdiction the defendant father is said to be resident.
156
SRI SKANDA RAJAH, J.—Mack v. Mack
The appellant contends that—
the Magistrate’s Court of Colombo has no jurisdiction to
enforce this order;
the English Court had no jurisdiction to transmit this case to
the Ceylon Courts;
where there is a valid marriage in existence the father is the
guardian of the child, unless it is detrimental to the welfareof the child;
the Magistrate’s Court of Colombo should not have confirmed
the order because it is against natural justice and thepublic policy in Ceylon.
What the Magistrate’s Court of Colombo is called upon to enforce isthat part of the order concerning maintenance and not that part regardingcustody of the children. It is conceded that the English Court had juris-diction to make an order for maintenance when it made order for thecustody of the children, to make which it had undoubted jurisdiction.The order that was made by the English Court is divisible : The orderfor maintenance was the main order and the order for custody wasincidental thereto.
The Maintenance Orders (Facilities for Enforcement) Ordinance (Cap.92) deals with the enforcement of maintenance orders. Section 6 confersjurisdiction on Magistrates’ Courts in Ceylon to enforce such provisionalorders for maintenance. The evidence given by the applicant wife andthat of the defendant would show that the defendant lives in SunethraLane, Thimbirigasyaya, Colombo 5, within the jurisdiction of the Magis-trate’s Court of Colombo. I would hold that the Magistrate’s Court ofColombo has jurisdiction to enforce this order and that the EnglishCourt had jurisdiction to transmit the order for enforcement by theCeylon Courts.
The defendant as father may be the natural guardian of the children.That would entitle him to get their custody by proper means subjectto their welfare which is the paramount consideration. But as long asthey are in the applicant’s custody by a lawful order made by the EnglishCourt and the defendant has neglected to maintain them he is liable topay maintenance. Section 6 (2) restricts the defences that can be raisedby the defendant to what could have been raised in the original proceed-ings in England had he been a party thereto. No other defence cannow be raised. This provision also indicates that the order in questioncould have been lawfully made by the English Court without his beingeven made a party to the proceedings. That is why the order is onlyprovisional and needs the confirmation by the Magistrate’s Court of
Iasadeen v. Atheek
159
Colombo, after the defendant is afforded the opportunity of being heardso that he may not complain that the audi alteram partem rule has beenviolated. For these reasons the second and third objections too fail.
The amount of maintenance ordered by the English Court is £2 perweek. That is not too large an amount. Therefore, I would set asidethe Magistrate’s order regarding the variation of the amount and confirmthe orginal provisional order for maintenance.
Provisional order for maintenance confirmed.