029-NLR-NLR-V-65-J.-MIHIRIGAMAGE-Appellant-and-S.-BULATHSINHALA.-Respondent.pdf
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WBERASQQBJYA, BJE>J.~Miter%Q*m*ge o. Bxdaduinhaia
1962Present: Wewasooriya, J.
j. MmmmmAm,m& s. botathsikhala,Respondent
8. 0.162—M. G. Gampaha, 64,757
Maintenance Ordinance (Cap. 91)—Section 2—Incapacity of an ex-wife to applythereunder for maintenance.
A married woman who hae obtained a decree for divorce ia not entitled there-after to apply for maintenance for herself cinder section 2 of the MaintenanceOrdinance. In construing the expression “ wife ” in that section it is notpermissible to give it an extended meaning so as to include an ex-wife who, as aresult of a decree of a competent court, hae ceased to be the wife of therespondent.
Appeal from an order of the Magistrate’s Court, Gampaha.
Frederick W. Obeyesekere, for the applicant-appellant.
J.G. TTwrairatnam, with M. T. M. Sivardeen, for the defendant-respondent.
September 3, 1962. Weerasooriya, S.P.J.—
This is an appeal from an order of the Magistrate refusing an applicationby the applicant-appellant against the respondent for maintenance ofherself and her child. In the application, which was made on the 13thMay, 1961, under the provisions of section 2 of the Maintenance Ordi-nance (Cap. 91), the applicant described herself as the lawful wife of therespondent. The application in so far as it concerned the maintenanceof the child was not proceeded with as the child died on the 23rd September,1961, during the pendency of the proceedings.
It appears from the document A1 that on the 30th August, 1960, adecree nisi had been entered in the District Court of Gampaha for thedissolution of the marriage between the applicant and the respondenton the grounds that the respondent was guilty of malicious desertion.By the same decree the respondent was ordered to pay to the applicantRs. 50 per month as alimony and Be. 20 per month as maintenance forthe child. This decree was made absolute on the 20th December, 1960,so that at the time when the applicant made the application for main-tenance in the present proceedings she was no longer the wife of therespondent. The description of the applicant as the lawful wife of therespondent in the application made by her is therefore not correct. TheMagistrate after inquiry refused the application on the ground that asthe applicant hod at the date of the application ceased to be the wife ofthe respondeat, she was not entitled to an order of maintenance undersection 2 of the Ordinance.
WEERASOORIYA, S.P.J.—Mihirigamage v. Bulatlisinhala
135
Section 2 confers power on a Magistrate to make an order for main-tenance against any person who “ having sufficient means neglects orrefuses to maintain his wife or his legitimate or illegitimate child unableto maintain itself The expression “ wife ” is not defined in the Ordi-nance and in the absence of a definition it would have to be construed asmeaning a lawfully married wife unless there are any grounds for givingto the expression an extended meaning. Mr. Obeyesekere who appearedfor the appellant relied on certain decisions of this Court on the strengthof which he submitted that the expression “ wife ” in section 2 should beconstrued so as to include an ex-wife who prior to the making of theapplication for maintenance had ceased to be a wife as a result of a decreeof a competent Court dissolving her marriage with the person againstwhom the order for maintenance is sought to be obtained. The first ofthese cases is Peiris v. Peiris 1. The facts of this case are as follows :The applicant had sued the respondent for a decree of judicial separationand was successful in obtaining it along with the custody of the child ofthe marriage. It would appear that an order for alimony in her favourhad also been made, but in order to avoid payment of the alimony therespondent had subsequently got himself adjudicated an insolvent. Thewife thereafter made an application against the defendant under theMaintenance Ordinance for maintenance for herself and her child. TheMagistrate following a decision of de Kretser, J., in Aryanayagam v.Thangammah 2 by which he considered himself bound, dismissed theapplication of the wife on the ground that there was already a decree of acivil court in favour of the wife for the payment to her of alimony. Inappeal Soertsz, J., held that the decree for alimony, as long as it was notcomplied with, was not a bar to an application under section 2 of theMaintenance Ordinance and that in such an application it was open tothe Magistrate to make an order for maintenance if there is proof thatthe husband having sufficient means had neglected or refused to maintainhis wife or child. It is to be noted that the applicant in that case wasstill the wife of the respondent.
The conflicting views expressed by Soertsz, J., and de KLretser, J.,led to the subsequent case of Fernando v. Amarasena 3 being referred toa Bench of two Judges of this Court, It would appear that in thatcase the applicant for maintenance had previously obtained a divorcefrom her husband, the respondent, who had in the same action beenordered to pay Rs. 50 as alimony and maintenance for the applicantand the child of the marriage. No payment had however been madeby the respondent in terms of that order, and the applicant thereafterapplied to the Magistrate’s Court for an order of maintenance in favourof the child only. She refrained from making an application for main-tenance in her favour presumably because she had ceased to be the wifeof the respondent. It was held that where all that is shown is theexistence of a decree of a civil court for payment of alimony, such decreeis no bar to the exercise of jurisdiction by the Magistrate under the
3{1939) 41 N. L. R. 169.
1 (1940) 45 N. L. R. 18.
0 (1943) 45 N. L. R. 25.
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_ WBERASOORIYA,—-MiMriffatnage v. Bt&x&ainhala
provisions of the Maintenance Ordinance. Ho occasion arose in thatcase for the Court, to consider the question whether it was competent,for the “ wife ” once she had ceased to be the wife of the respondent,to make an application under the Maintenance Ordinance formaintenance of herself.
The third case relied on by Mr. Obeyesekere is the case of FrancisFernando v. Vincentina Fernandol. In that case the applicant hadobtained an order for maintenance of herself under the provisions of theMaintenance Ordinance. Subsequently she obtained a decree in theDistrict Court dissolving her marriage with the respondent and also anorder for payment of alimony in a sum of Re. 80. Apparently theorder for payment of alimony was not complied with and the applicantthen applied under section 10 of the Maintenance Ordinance for enhance-ment of the maintenance that had been ordered in her favour prior tothe divorce proceedings. Sinnetamby, J., held on a consideration ofthe language of section 10 that it was open to the applicant, even aftershe had ceased to be the wife of the respondent, to apply under section 10for enhancement of the maintenance ordered prior to her change ofstatus. Sinnetamby, J., while expressing that view, contrasted thelanguage of section 10 with that of section 2, and he observed that for thepurposes of section 2 an applicanthas to be a vnfe in order to succeed ”,but be did not think it necessary for the purposes of that case to decidewhether a “ wife ” who had obtained a decree for divorce can thereafterapply for maintenance under section 2.
The view taken by Sinnetamby, J.; that it is open to an ex-wife toapply under section 10 for enhancement of maintenance order undersection 2 at a time prior to her change of status, seems to run counterto the decision in the earlier case of Meniki v. Sivathuwa a, which wasnot considered by hiru, and in which it was held that where a wife hadobtained an order for maintenance against her husband under theprovisions of the Maintenance Ordinance, it would not be open to herto recover maintenance in terms of the order as from a date subsequentto that on which her marriage with the respondent was dissolved underthe provisions of the Kandyan Marriage Ordinance, Ho. 3 of 1870.
It seems to me that the question decided in Francis Fernando v.Vincentina Fernando (supra) and in the other two cases relied on byMr. Obeyesekere was different from that arising in the present appeal.A case which is more in point, and to which. Mr. Sivardeen appearingfor the respondent drew my attention, is Subramaniam v. Pakkiyalad-chumy3 where Rose, C. J., in considering the language of section 2observed that the section permits a " wife ” to make an applicationagainst her husband in the event of his failure to maintain her. Hestated further “ The duty is cast on the husband, to provide only for hiswife and if the alleged marriage of an applicant for maintenance isinvalid by reason of some legal impediment which makes her stand
1 (1968) 59 N. L. R. 522,
* (1962) 56 N. L. R. 87.
* (1940) 42 N, L, B. 6t.
Kiri MeniJca v- Podiralahamy
137
in a somewhat lesser relationship to the alleged husband than as wife»it would seem to be plain from the wording of the section that she isnot entitled to claim maintenance for herself under the Ordinance.”
Section 2 of our Maintenance Ordinance is substantially the sameas section 488 (1) of the Indian Code of Criminal Procedure (Act Ho. 5 of1898). It would appear to be the view of the Indian Courts “ that itisonly on proof of the existence of conjugal relations between a man anda woman that the man can under section 488 be ordered to provide forthe woman’s support”—per Ailrman, J., in Shah Abu Ilyas v. IJlfatBibi 1. See also In re Mohamed Rahimvllah and OMother 2; and JanniBibi v. Mohamed Abdul Rahaman 3.
In the present case too I do not think that in construing the expression“ wife ” in section 2 of the Maintenance Ordinance it is permissibleto give it an extended meaning so as to include an ex-wife who, as aresult of a decree of a competent court, had ceased to be the wife of therespondent.
In my opinion, the order of the Magistrate refusing the applicationof the appellant is a correct order and I therefore dismiss the appeal.
Appeal dismissed.