115-NLR-NLR-V-61-RUPASINGHE-Appellant-and-SOMAWATHIE-Respondent.pdf
457
BAS2TAYAK2, C.J.—Rv.pas'vghe v. Sn/rvzincjhiv
1958Present: Basnajake, C.J. and TL. 12. is 3i>a, Z.
BUPAS22JGHS, Appellejit, and SCMAWATMIhi. Respondent.S. C. 3oo—Jbf. C. Ar ifl,pr}io.. 427 Zi F
Maintenance—Issue of sutmaons on defendant—Procedure prior to It —Requirementof oral examination of applicant—Mahitenn.nce Ordinance. #s. 13, 14—CriminalProcedure Code, as. 29S, 299.
When, in an application for maintenance under the Maintenance Ordinance>tiie applicant is examined under section 14 foe the purpose of ism ring summons,the failure of the Magistrate to record the applicant's deposition in conformitywith the requirements of sections 59S and 299 of the Criminal Procedure Codeis a fatal irregularity.
Sebastian Pillai v. Magdalene (1949) 50 2T. L. K. 4=94, overruled.
A
/APPEAL from a judgment of the Magistrate’s Court, Gampaha.
Colvin R. de Silva, with M. L. de Silva and H. Mohddeen, forReap ondeut – Appellant.
W. Obegesekere, for Applicant-Respondent.
December 11, 1959. Basnayakej, C.J.—
This appeal comes before a Bench, of two Judges on an order made byme under section 48A of the Courts Ordinance on the question of lawarising for decision herein being reserved under section 48 of the CourtsOrdinance by my brother Sinnetamby. The question for decision iswhether Namasivayam v. Sarasucaiky1 or Sebastian Pillai v. Magdalene2is correct. In the former ease it was held that the requirement of section14 of the Maintenance Ordinance is a condition precedent to the issue ofsummons and that any proceedings taken without that requirementbeing observed are rendered invalid. We are of the opinion that thedecision in Namasivayam v. Sarasivaihg is right and that the decision inSebastian Pillai v. Magdalene is wrong. In our view it is an imperativerequirement that proceedings under the Maintenance Ordinance should,commence with an application in writing as prescribed by section 13 ofthat Ordinance. Upon such an application being made the Magistrate isbound by section 14 to commence the incruiry by examining the applicanton oath or afisrmation and such examination must be duly recorded,if after Such exsminaticn there is in the judgment of the Magistrate net
11194$) SO 2v. L. 3. 333.3 1SZ9) SO 2sr. I. 3. 494.
20—t.ut
2—J. N. B. 22593-1,595 (3/60)
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BASIS!"AYAKE, C-J.—-Rupasinghe v. Somawathie
sufficient ground for proceeding lie is empowered by that section tomake order refusing to issue a summons. An order to issue summonsmay be made only if upon the deposition of the applicant the Magistrateforms the opinion that there is^sufficient ground, and is designed to protectinnocent persons from the ignominy and vexation of having to come intoCourt to answer groundless accusations.
In the instant case there is an application in writing which reads :
" On this 26th day of April 1958.
The applicant ahovenamed complains to this Court that the defend-ant ahovenamed did at Paramulla, within the jurisdiction of thisCourt, for the past two months having sufficient means failed andneglected to maintain his illegitimate child aged two months namedSirimawathie by the applicant and hath thus become liable for mainte-nance for the said child under Section 3 of Ordinance No. 19 of 1889.
Sgd S. A. Somawathie (in Sinhalese.)Applicant.
Drawn by me
Sgd A. A. L. GunaratneProctor for Applicant.
List of Witnesses :—
1. The Village Headman of Paramulla, Veyangoda. ”
In the same document the following statement occurs below the writtenapplication :—
“ I, Subasinghe Aratehilage Somawathie, Paramulla, 24 years,affirm I am the Applicant ahovenamed. That about a year ago theDefendant started visiting me. He promised to marry me, and on thatpromise we lived together as husband and wife. On the 22ndFebruary 1958 I gave birth to the child named Sirimawathie at theWathupitiwala Hospital. The Defendant is the father of the said child.Since the birth of the child the Defendant failed and neglected to main-tain the child. The Defendant is a Government servant drawingabout Rs. 225 per month. I claim Us. 50 per month as maintenancefor the child.
Applicant: Sgd S. A. Somawathie(Initials)
(in Sinhalese)Add! Magistrate.”
The foEowiug order occurs next:—
‘■'Plaint accepted. Issue summons on the Defendant for 24.5.58.
(Initials)
. ■ .Add! Magistrate. ”
The appEcation, the statement, and the order of the Magistrate areaE on the face of one sheet of paper and appear to have been typed at the
Jdadonza v. K.le.1
4 59
same time in the Proctor’s office and submitted to the Magistrate for hissignature. The statement does not satisfy the requirements of section 14.There should have been an oral examination of the applicant by theMagistrate in order to determine whether in Ms judgment summonsshould issue.
The deposition of an applicant who is examined under section 14 mustbe recorded as prescribed in seotion 298 of the Criminal Procedure Codeand read over to the witness as required by section 299 (1) of that Codeand the other requirements of that section must be complied with. Therequirements of section 14 and the provisions of the Code have not beencomplied with. That non-compliance is fatal to the order made hv theMagistrate and renders it null and void.
The appeal is allowed and the proceedings after the date of the applica-tion are declared null and void.
The applicant may now if she desires to continue the proceedingssubmit herself to be examined by the Magistrate.
There will be no costs of this appeal.
db Silva, J.—I agree.
Appeal allowed.