065-NLR-NLR-V-59-L.-SIRIWARDANA-Appellant-and-D.-EMALIN-Respondent.pdf
Siriwardnna v. Bmalin
263
1957Present: T. S. Fernando, J..
L. SIRIWARDANA, Appellant, ami D. EMAUN, llosjjondent
S. G. 561—JSI. O. Gamp aha, 36,34-1
.Maintenance—.Arrears due—^Maximum term oj imprisonment that may be imposedo>i de-fendant—Criminal Procedure Code, s. 312—Maintenance Ordinance, s'. 3.
Where a person who is ordered to pay maintenance is in arrears for more thansix months, tho Magistrate has jurisdiction to sentence him to imprisonmentl'or a term which may exceed six months. In such a case, tho maximum termof imprisonment is determined by section S of the Maintenance Ordinanceand not by section 312 of tho Criminal Procedure Code. '-— '
A
/APPEAL from an order of tho Magistrate’s Court, Garupaha.'
In this ease the defendant, who had been ordered to pay maintenance,was in arrears for 6 j*ears. The learned Magistrate concluded his orderas follows :—“In this case the defendant is liable to six years imprison-ment, but I would order tho sentences as follows : For the first 6 monthsin default lie will undergo G months r. i. and likewise for each subsequentperiod of G months in default ho will bo sentenced to 6 months r. i.I have adopted this course and sentenced him on this basis to 6 yearsrather than imposing on him 6 months r. i. for each such period andgetting him up at tho expiry of each of such 6 months periods to passsentence on him again for the following 6 months. ”.
E. R. S. R. Coomaraswamij, with T. G. GunaseTccra, for the defendant-appellant.'•.
No appearance for the applicant-respondent.
Cur. adv. milt.
264
T. S. FERNANDO, J.—Stritcrtrilnna v. E-nialin
November 19,. 15)57. T. S. Ferxaxdo, J.—- .■.
When this appeal was argued before me, Counsel for the appellantindicated that tho appellant was willing to deposit immediately a substan-tial part of the arrears of maintenance duo from him. X thereforodirected that the case bo remitted to the Magistrate’s Court to enablethe appellant to pay in some of the money due from him. The recordof the case has now been received back from the Magistrate’s Corut, andit is quite clear that the appellant has made no attempt to pay into Courtany sum at all.
The only point that now remains to be decided relates to the sentenceof imprisonment which the appellant has been ordered to undergo.The argument that the maximum term of imprisonment that could havebeen awarded in this case was six months depends on the questionwhether section 312 of the Criminal Procedure Code applies. Thatsection can apply only if express provision had not been made in respect ofenforcement in the Maintenance Ordinance itself. Such express provi-sion has been made in section S of the Maintenance Ordinance, and I amunable to conclude that the sentence is illegal. I have been urged tointerfere with the sentence on the ground that it is harsh. "While the totalsentence of imprisonment the appellant may have to undergo can extendto a long term, it is within the appellant’s power to reduce this sentence.If he wishes to avoid a long term in jail he must make a reasonable effortto meet the obligations he owes to his wife..
Tho apjjcal is dismissed.
A-ppcal dismis-sed.