NAGALINQAit A.C.J.—Silva ti. Karunawathie
1954Present: Nagalingam A.C.J.
W.J. SILVA, Appellant, and L. KARUNAWATHIE, Respondent
S. C. 856—M. C. Galle, 6,580
Maintenance—Child—Order made in divorce proceedings—Jurisdiction of Magistrate's“ Court to award maintenance subsequently.
Where an order for the maintenance of a child entered in divorce proceedingslias boon carried out by the deposit of a certain sum of money in the DistrictCourt, the jurisdiction of a Magistrate to make a subsequent order for themaintenance of that child becomes ousted to that extent.
jTVPPEAL from a judgment of the Magistrate’s Court, Galle.
Christie Seneviratne, with Felix Dias, for the respondent-appellant.
L. Jayasuriya, with J. C. Thurairatnam, for , the applicant-respondent.;
Cur. adv. vult.
March 30, 1954. Nagalingam A.C.J.—
This is an appeal by the father of a child named Upali from an order ofthe learned Magistrate of Galle ordering him to pay a sum of Rs. 30 amonth as maintenance.
The child is the legitimate child of the appellant. The appellant wassued in the District Court of Galle for divorce in proceeding No. X. 615by the mother of the child, the respondent in these proceedings, and the
NTAGALINGAM A.C.J.—Silv& v.‘Karunawathie
learned District Judge on being satisfied upon the evidence decreed adivorce dissolving the marriage of the parents of the child. In thecourse of those proceedings the mother stated that she was able to main*tain the child but that the defendant, the father, should pay a sum ofIts. 1,200 by way of alimony for the child and it was agreed that the sumof Rs. 1,200 so deposited should remain in Court and should be paid alongwith the accrued interest thereon to the child on his attaining majority.
It was contended on behalf of the appellant that the order in the divorceproceedings precluded the learned Magistrate from making an order inthese proceedings. The point raised by the appellant before the learnedMagistrate has been decided by a Divisional Bench in the case ofFernando v. Amarasena 1 where it was expressly laid down that the exis-tence of a decree of a civil court for alimony does not oust jurisdiction ofthe Magistrate to make an order under the Maintenance Ordinance wherethe father fails to maintain the child.
The point however stressed on appeal is that though the law may havebeen laid down in that sense it must be qualified to the extent that if itis shown that the order made in civil proceedings is not merely a paperorder but one which has been carried out, then the jurisdiction of theMagistrate becomes ousted. I think there is force in this contention.Admittedly the father deposited a sum of Rs. 1,200 in the divorce pro-ceedings on the faith of the undertaking given by the mother that shewould claim no maintenance for the child as she was in a position tomaintain the child. It now transpires however that the source of mainte-nance which Bhe relied upon has dried up and that she is no more in aposition to maintain the child. The father is however willing that theamount deposited in the civil case should be appropriated for the mainte-nance of the child in monthly instalments,-thus varying to that extentthe agreement entered into by him in the divorce proceedings. Themother, I find, in fact applied to the learned District Judge for an orderof payment of the entire sum but later did not press the applicationalthough the father was willing to have the amount transferred to theseproceedings to enable the order of maintenance made against him to beexecuted on that fund.
In these circumstances it seems to me that the proper order to makeis that the Magistrate’s order should remain intact but that the sum ofRs. 1,200 should be withdrawn by the applicant-respondent, the mother,at the rate of Rs. 30 a month from 6th July; 1953, the date from whichthe order of the Magistrate operates, and that whether by actual with-drawal or by a notional appropriation at that rate, the fund in Courttogether with the interest gets exhausted, the father should thereaftermake payments in terms of the order. On a rough calculation I findthat the fund will get exhausted by January or February 1958 so thatthe order in this case can be executed against the defendant fromFebruary or March 1958. Till then no application for execution of theorder can be allowed.. The present order will not debar the applicantfrom making an application for enhanced maintenance if she can satisfy
1 (1943) 45 F. L: R. 'ZSl.
6ANSON1 J.—OheUan v. Ponnan
the Magistrate that circumstances have so altered that such an ordershould in the interests of justice be made. X also note that in the divorceproceedings the Decree Nisi has not yet been made absolute. The ordertherein as to alimony in favour of the child may be modified on the applica-tion of the parties so as to give effect to the order in these proceedings.
The appeal is dismissed and as each party has partially succeeded Imake no order as to costs.
W. J. SILVA , Appellant, and L. KARUNAWATHIE, Respondent
NAGALINQAit A.C.J.—Silva ti. Karunawathie