080-NLR-NLR-V-73-G.-RAYAPPAN-Appellant-and-R.-MONICAMMA-Respondent.pdf
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DB KRETSER, J.—Hayappan r. Monicammn
1969Present : de Kretser, J.
RA YAPP AN, Appellant, and R. MONICAMAIA, Respondent
S. C. 66169-Chief M. C. Colombo, 33614/A.M.C.
Maintenance Ordinance—Application for maintenance thereunder—Whether it is-affected by action for divorce instituted by one party against the other.
An application for maintenance may bo mado by a wife under the-Maintenance Ordinance during the pendency of an action for divorco-instituted against her by the husband.
A.PPEAL from a judgment of the Chief Magistrate’s Court, Colombo..S. A. Rajadurai, for the respondent-appellant.
If. TV. Jayewardene, ‘Q.C., with M. Amarasingham and G. M. ff.Samarau-eera, for the applicant-respondent.
Cur. adv. null.
October 20, 1969. de Kjretser, J.—
The facts' are as follows:—Gregory Rayappan filed Divorce Case-No. 7952 D.C. Colombo on 28.6.1968 seeking a divorce from his wife-Monicamma on the footing that she had maliciously deserted him.
DE KKETSER, J.—Rayappan v. Afonicamma
429
On 2S.S.19CS Monicamma filed ihc present Maintenance Case againsthim claiming maintenance for herself and her child.
In regard to the child by consent a Maintenance Order of Rs. 50 wasmade. In regard (o Monicamma, who refused her husband’s offer tocome back and live with him because she alleged that he habitually ill-treated her, application was fixed for Inquiry. On the Inquiry dale,Counsel for Gregory Rayappan moved the Court to lay by the Case untilthe Divorce Case which had been fixed for Trial was over. The Magis-trate refused the Application to lay by and then Counsel informed himthat Gregory Rayappan would not be taking part in the proceedings.The Magistrate having recorded the available evidence made his orderthat Gregory should pay Monicamma Rs. 75 a ruont h as Maintenanceand Gregory Rayappan has appealed.
Counsel has urged that the Magistrate has erred in not laying by theCase ns in the Divorce Case that was pending the same issue, viz. whetherthe Applicant- had deserted the Respondent had to be- determined.Although the Maintenance Ordinance provides special machinery forsecuring maintenance for the parties cut it fed to it and when partiesresort to its provisions they are entitled to obtain the relief ns speedilyas possible by the determination of the question of fact “docs thehusband refuse or neglect to maintain wife or child ” Counsel relies onthe ease reported in 7 Law Recorder, page 5S—De SiL'a v. Scneviralne1—in which when a wife sued for Maintenance a husband who had alreadyinstituted .a Divor.ce Case which was pending at the lime of the Appli-cation for maintenance, Jayewardcnc J. held that as the issue was thesame in both cases the maintenance proceedings should be stayed pendingthe decision of the Divorce Case conditionally on the husband prosecutingthe Divorce Case with diligence.
In the Case reported in 39 C. L. W. 75—Wimalairalhie Kumarihamy vImbnUleniyi-—it was held that an application ,1'or maintenance is-notafTcctcd by the institution of an action for divorce by one party againstthe other. In regard to the decision reported in 7 Law Recorder 5S,Basnayake J. said “ with great respect 1 find myself unable to agree withthe view taken by Jayewardcnc J. in De SiLi ?. Senecirntne (1925) 7 LawRecorderIn t he absence of a provision in the .Maintenance Ordinance
enabling a Magistrate to adopt the course suggested therein he ha3 nopower in law to deny to an applicant the relief provided by theStatute.
I am in respectful agreement with this observation of Basnayake J.In my opinion the Magistrate correctly decided to go o:i with this Case.The Appeal is dismissed with Costs.
Appeal dismissed.
i (10251 7 C. L. Hec. 53.
{1010) 30 <7. L. IF. 75.