103-NLR-NLR-V-63-U.-S.-PREMAWANSA-Appellant-and-K.-SOMALATHA-Respondent.pdf
TAMBIAH, J.—jPremawansa v. Somolotha
551
1961Present : Tambiah, J.U.S. PREMAWANSA, Appellant, and K. SOMALATHA,
Respondent
S. C. 223—M. G. Matale, 5531
Maintenance—Order made in favour of wife—■Effect on it of subsequent divorce—Kandyan Marriages and Divorce Act No. 44 of 1952 (as amended by Act No. 34of 1954), s. 35.
Aii order for maintenance in favour of a wife ceases to have effect after thedate of her subsequent divorce.
The appellant was married to the respondent under the Kandyan Marriagesand Divorce Act on the 18th February 1957. On the 21st July 1959, in amaintenance action filed by the respondent, the appellant was ordered to paymaintenance. Subsequently, divorce proceedings were filed under the above*mentioned Act and an order granting dissolution was made on the 16th December1959 by the District Registrar. In the divorce proceedings the DistrictRegi-trar -'rdered the appellant to pay the respondent the same sum as orderedby the Magistrate in the maintenance proceedings.
Held, that no distress warrant could be issued to recover any arrears ofmaintenance due after the date of the divorce.
Appeal from an order of tbe Magistrate’s Court, Matale.
G. Weeramantry, for the Respondent-Appellant.
No appearance for the Applicant-Respondent.
Cur. adv. vult.
June 22, 1961. Tambiah, J.—
The appellant was married to the respondent under the KandyanMarriages and Divorce Act (No. 44 of 1952, as amended by Act No. 34of 1954), on the 18th of February 1957. On the 21st of July 1959, in themaintenance action filed by the respondent against the appellant, thelatter was ordered to pay maintenance at the rate of Rs. 10 per monthto the respondent. Subsequently, divorce proceedings were filed underthe abovementioned Act and an order granting dissolution was made on the16th of December 1959 by the District Registrar.
On an application made by the respondent, by motion dated 26fchNovember 1959, claiming arrears of maintenance and a distress warrantto recover the same, an inquiry was held by the learned Magistrate on the3rd of December 1960. At the inquiry, the appellant produced tbecertificate of divorce granted by the District Registrar and claimed thatthe Court cannot enforce the order for maintenance as the marriagebetween the parties had been dissolved. The learned Magistrate rejectedthe submission of the appellant and made order that the respondent was
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TAJMZBIAH, J.—Premawansa, v. Somalatha
entitled to recover from the appellant arrears of maintenance at Rs. 10per month. The appellant has appealed from the order of the learnedMagistrate.
An order for the dissolution of marriage has the effect of rendering theorder for maintenance ineffective as from the date of the dissolution {videAbdur Rahaman v. Sdkhina1 ; In the matter of Din Muhammed 2 ; Mt.Aziman v. Pir BaJcsh 3; Meniki v. Siyathuwa 4. This Court has even goneto the extent of holding that an order for separation has the same effect,vide Simon Ajapu v. Somataathie 5). It would be artificial to contendthat because the order was not cancelled, a right, which has been extin-guished, could be revived and a liability that had been terminatedcould be enforced (Simon Appu v. Snmawathie (supra) ). Hence, theorder for maintenance ceases to have any effect after the date of thedivorce.
However, in the instant case, the respondent is not without a remedy.The District Registrar, acting under the Kandyan Marriages and DivorceAct (supra), has ordered the appellant to pay the respondent the same sumas ordered by the Magistrate in the maintenance proceedings. The res-pondent could enforce this order in the same manner as an order made bythe District Court in a matrimonial action under Chapter 42 of the CivilProcedure Code (vide Sec. 35 of the Act, No. 44 of 1952). Under the re-pealed Ordinance (Kandyan Marriages Ordinance (Cap. 96)) the order ofthe District Registrar could be enforced as if it was an order for mainten-ance made by a Magistrate (vide Section 20 of the Kandyan MarriagesOrdinance (supra) ; Surana v. Ukku 6). This Ordinance is no longer in force.
Therefore, I hold that no distress warrant could be issued to recover anyarrears of maintenance due after the 16th of December 1959, but such awarrant could be issued to recover all arrears due up to that date. Themere filing of an action for divorce, however, does not have the effectof cancelling a maintenance order (vide Wimalawathie Kumarihamy v.Imbuldeniya 7) but once a decree is entered, the order for maintenance bya Magistrate ceases to have any operation for any period subsequent tothe date of divorce.
I set aside the order of the learned Magistrate and send the case back toenable the Magistrate to determine the arrears of maintenance due up tothe 16th of December 1959 and to issue a distress warrant for the recoveryof the siims due up to that date if such a course becomes necessary.The respondent was not represented in the appeal and there will be nocosts awarded in this Court and in the Magistrate’s Court.
Order set aside.
1 5 Calcutta 558.
5 Allahabad 226.
1876 Pun. Rep. No. 1 Or, p. 1 (2).
* (1940) 42 N. L. R. 53 at 54.6 (1933) 56 N. L. R. 275.
6 (1944) 45 N. L. R. 196.
■> 39 Q. L. W. 75.