101-NLR-NLR-V-63-TENNE-Appellant-and-EKANAYAKE-Respondent.pdf
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Tenne v. Ekanaydke
Present: Basnayake, C.J., H. N. G. Fernando, J.,and Sinnetamby, J.TEJSOSTE, Appellant, and EKANAYAKE, RespondentS. C. 442 of I960—.M. G. Matale, 6823
Maintenance—Jurisdiction—Forum in which application should be made—Mainten-ance Ordinance, ss. 2, 9, 15, 17—Civil Procedure Code, s. 9.
•The Court which, has jurisdiction to entertain an application under theMaintenance Ordinance is the Magistrate’s Court within whose limits the wifeor child having the right to claim maintenance resides. The place of residenceof the defendant is not material.
Application was made against the defendant for maintenance in respect ofhis wife and child. The complainant was the father of the defendant’s wife,who was, at the time of the application, an inmate of the Mental Hospital,Angoda. The child, however, was residing at Matale with the complainant.
The defendant was residing at Dumbara, which was outside the territorialjurisdiction of the Magistrate’s Court of Matale.
Held, (i) that the Magistrate’s Court of Matale had jurisdiction in regardto the claim of the child.
(ii) (Sinnetamby, J., dissenting), that the claim in regard to the mother ofthe child should be made in the Magistrate’s Court of Colombo.
A PPEAL from a judgment of the Magistrate’s Court, Matale.
K.C. Kamalanathan, with M. Shannvugalingam, for Applicant-Appellant.
T.L. M. Mansoor, for Defendant-Respondent.
Cur. adv. vuU.
BASNAYAKR, C. J.—Tenne v. Ekanayake
64&
March 30, 1962. Basnayakje, C.J.—
This appeal first came up for hearing before my brother Sinnetambybut, as a question which appeared to him to be a question of doubt ordifficulty arose for adjudication, acting under section 48 of the CourtsOrdinance he reserved the question for the decision of more than oneJudge of this Court, and under section 48A of that Ordinance I made orderconstituting a Bench of three Judges for deciding it. The questionreserved is whether a Magistrate’s Court within whose limits the defendantto an application for maintenance does not reside has no jurisdiction toentertain an application for maintenance.
Briefly the material facts are as follows :—On 10th November 1959the applicant R. B. Tenne complained to the Court that the defendantV. B. Ekanayake of the Cocoa Research Station, Horticultural Office,Kundasale, who was the husband of his daughter Veera Ekanayake,refused to maintain her or his male child Keerthi Ekanayake aged three.In his evidence he stated that his daughter was since June 1959 an inmateof the Mental Hospital, Angoda, and that the child Keerthi was with him.
It would appear from the following minute made in the record that onhis appearance on summons the defendant admitted that he was thehusband of the applicant’s daughter and the father of the child Keerthi :—
“ The defendant admits marriage and paternity but has cause to show. ”
At the trial the defendant did not call any evidence but submittedthat the Court had no jurisdiction to entertain the application as hewas resident in Dumbara a place outside the territorial jurisdictionof the Magistrate’s Court of Matale. It appears to be common groundthat the defendant is resident at a place outside the local limits of theMagistrate’s Court of Matale. The learned Magistrate upheld the objec-tion on the ground that he was bound by the decisions of this Court,viz., Jane Nona v. Van Twestx and Saraswathy v. Kandiah2 cited by thedefendant’s pleader.
Jane Nona's case holds that the Court which has jurisdiction to enter-tain an application under the Maintenance Ordinance is the Magistrate’sCourt within whose territorial jurisdiction the cause of action arises. Itproceeds on the basis that as the Maintenance Ordinance itself is silenton the question of territorial jurisdiction it is permissible to resort tothe Civil Procedure Code for guidance. In Saraswathy v. Kandiah(supra), while following Jane Nona v. Van Twest (supra), which I feltwas binding on me, I expressed the view that a Magistrate has juris-diction to entertain an application under section 2 of the MaintenanceOrdinance regardless of the residence of the parties or the place wherethe cause of action arises. In Uingirimenika v. Kiriappu 3, Nagalingam
J.in dealing with the question of jurisdiction to enforce an order of main-tenance under section 11 of the Maintenance Ordinance held that thejurisdiction to enforce its order is not taken away from the Court by
1 (1929) 30 N. L. R. 449.2 (1948) 50 N. L. R. 22.
* (1950) 52 N. L. R. 378.
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BASNAYAKE, C.J.—Tenne v. Ekanaydke
section 11 merely because the defendant has ceased to reside withinits local limits. He states obiter —
“ In fact, any Magistrate’s Court would have jurisdiction to enter-tain a plaint irrespective of the question where the applicant or therespondent resides. ”
Now the first question that has to be considered is whether JaneNona’s case has been rightly decided. Is it permissible to apply section9 of the Civil Procedure Code % I think not, for the reason that theCivil Procedure Code is made applicable only to actions falling withinthe ambit of that code. The Maintenance Ordinance provides a specialremedy and a special procedure in regard to tvhat was before its enact-ment a civil right enforceable under the ordinary procedure. It hasbeen held that since the enactment of the Maintenance Ordinance it isno longer competent for a woman to bring a civil action to recover main-tenance for herself and her children as a debt due to her and them by thefather (Menikhamy v. LoTcu Appu 1). By the enactment of the Ordinancethe common law right became a statutory right enforceable by the proce-dure prescribed in the statute. Certain provisions of the Criminal Proce-dure Code (Chapters V and VI, Sections 338 to 352) and the provisions ofthe Civil Procedure Code relating to costs so far as they may be appli-cable, have been expressly made applicable to proceedings under theOrdinance (ss. 9, 15 and 17). It has been held (Anna Per era v. EmalianoNonis 2) that it is not permissible to introduce provisions of the CriminalProcedure Code other than those expressly mentioned. By a parity ofreasoning it would follow that it is not permissible to introduce provi-sions of the Civil Procedure Code other than those made applicable bythe Ordinance.
The right conferred by the Maintenance Ordinance is, subject to thelimitations laid down therein, a continuing right and resides in the per-son entitled to it. As the right attends her wherever she may be theaid of the court within whose local limits she is resident for the time beingcan be invoked by her. It is not necessary to link this right with theconcept of a “ cause of action ” as known to civil proceedings. Thisview finds support in section 2 of the Maintenance Ordinance whichreawls—
“ If any person having sufficient means neglects or refuses to main-tain his wife, or his legitimate or illegitimate child unable to main-tain itself, the Magistrate may, upon proof of such neglect or refusal,order such person to make a monthly allowance for the maintenanceof his wife or such child at such monthly rate, not exceeding onehundred rupees, as the Magistrate thinks fit, and to pay the same tosuch person as the Magistrate may -from time to time direct. Suchallowance shall be payable from the date of the order.”
It seems to contemplate the case of an application being made to theCourt where the applicant having the right to claim maintenance residesand not to the Court where the defendant resides.
1 (1898) 1 Bed. 161.
2 12 N. L. R. 236.
SINNETAMBY, J.—Tertne v. Efcanayakt?
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The above view is consistent with the Full Bench decision in P. C.Negombo 29055, Grenier Reports (1873) P. C. 112, a decision givenunder the earlier law. In that case this Court held that in cases ofmaintenance the Court having jurisdiction over the place where a wifeor child is left destitute has authority to try a defendant (residing out ofsuch jurisdiction) who is bound to support them. The principle wasfollowed in the later case of Selestina Fernando v. Mohammed Gassirn1wherein Wendt J. stated that the Court within the local limits ofwhich an illegitimate child resides has jurisdiction to entertain anapplication for the maintenance of such child against its putative fatheralthough he may be resident outside the local limits of such Court.Jane Nona's case introduces, wrongly in my view, the Civil ProcedureCode concept of a cause of action. I adhere therefore to the view Iexpressed in Saraswathy's case as elaborated above.
In the instant case the applicant is not a person entitled to mainten-ance ; but one of the persons so entitled, namely, the child, is withhim at his house within the jurisdiction of the Magistrate’s Court ofMatale. The action in that Court can therefore proceed in regard tothe claim of the child. The claim in regard to the mother should bemade in the Magistrate’s Court of Colombo, for there is n< ground onwhich jurisdiction can be said to be in the Court within whose limits theapplicant resides where the applicant is not the person seekingmaintenance.
H. N. G. Fernando, J.—I agree.
SlNNETAMBY, J.
The question that arises for decision in this case relates to the forumin which an application for maintenance may be made by a wife onbehalf of a daughter whom the respondent, her husband, has failed andneglected to maintain. The learned Magistrate to whom the applicationwas made held that he had no jurisdiction because the defendant-respon-dent resided outside the local limits of the jurisdiction of his court. Heapplied the test of the defendant’s residence in deciding the question ofjurisdiction and in doing so followed two earlier decisions of thisCourt, viz : Jane Nona v. Van Twest2 and Sarasvxithy v. Kandiah 3. Thecase of DingirimeniJca v. Kiriappu4 was apparently not cited to thelearned Magistrate.
When this appeal first came up before me sitting alone, as the matterwas one of considerable importance and questions of difficulty arose, Ireferred it to My Lord the Chief Justice so that steps may be taken tolist the case for consideration by a bench of more than one Judge ofthis Court. My own inclination was to follow the opinion expressed,though obiter, by Nagalingam, J. in Dingirimenika v. Kiriappu {supra).
1 (1908) 11 N. L. R. 329.(1929) 30 N. L. R. 449.
(1948) 50 N. L. R. 22 .
(1950) 52 N. L. R. 378.
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Vethainanickarn v. Davoodbhoy
TTih view finds support in the observations of Basnayake, J. as he then,was, in Sarasroathy v. Kandiah {supra). In the latter case, Basnayake, J.was not disposed to agree with the earlier decisions but, nevertheless,felt obliged to follow Jane Nona v. Van T-west {supra) which was adecision of two Judges. In the course of his judgment, he made, thefollowing observations :—
“ My own view is that a Magistrate has jurisdiction to entertainan application under Section 2 regardless of the residence of theparties or the place where the cause of action arises.”
I take this passage to mean that any Magistrate’s Court, irrespectiveof the residence of parties, has jurisdiction to entertain an applicationfor maintenance. The mere fact that it is not the person entitled tomaintenance who makes the application should not affect the question.
In my opinion, therefore, an application for maintenance can be madeby an applicant whether on his or her own behalf or on behalf of anotherin any Magistrate’s Court, and is in no way affected by the place ofresidence of the defendant or of the applicant or of the person on whosebehalf the application is being made.
therefore, hold that the Magistrate’s Court of Matale had jurisdictionto entertain the application made in this case by the applicant on behalfof her daughter. I would accordingly set aside the order of thelearned Magistrate and remit the case to him for further proceedingsto be taken according to law. The applicant will be entitled to thecosts of this appeal.
Appeal partly allowed.