085-NLR-NLR-V-48-VIDANE-Appellant-and-UKKUMENIKA-Respondent.pdf
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Vidane v. Ukkumenika.
1946Present: Nagalingam A.J.
VIDANE, Appellant, and UKKUMENIKA, Respondent.
735—M. C. Nuwara Eliya, 217
Maintenance—Application made by wife and child—Denial of paternity bydefendant—Allegation that applicant was living in adultery—Burdenof proof—Maintenance Ordinance (Cap. 76), ss. 2, 4.
In an application made by a wife for maintenance for herself andchild, the defendant denied the paternity of the child and further statedthat he was not prepared to take his wife back on the ground that shewas living in adultery. On the date of trial the Court called upon thedefendant to establish his defence first.
Held, that the Court should not have called upon the defendant toestablish his case before the applicant’s case was placed in accordancewith law ; the facts that she was not living in adultery and was notliving separately from her husband by mutual consent should have beenfirst established by the applicant.
^^PPEAJL against an order of the Magistrate’s Court, Nuwara Eliya.
S. P. Wijewiekreme (with him Lucian Jayetileke), for the defendant,appellant.
C. S. Barr Kumarakulasinghe (with him K. C. de Silva), for theapplicant, respondent.
1 Contra, eee Ch. 59, see. 4 (t) and 4 (3) and Ch. 112, sections 2 and 4.
NAGALINGAM AJT.—Vidane v. Ukkumenika.
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December 18, 1946. Nagaungam A.J.—
This is an appeal by the defendant in a maintenance case from anorder of the learned Magistrate ordering him to pay a sum of Rs. 20 forthe wife and Rs. 10 for a child.
Counsel for the appellant has confined himself to arguing a point oflaw as to whether the procedure adopted by the Magistrate was correctin this instance and if. not whether the proceedings are not vitiatedthereby.
It would appear that when the applicant tendered the plaint she wasexamined by the learned Magistrate, in the absence of the defendant.When the defendant appeared, apparently he wa's questioned and headmitted that the applicant was his wife but denied the paternity of thechild in respect of which maintenance was claimed. He further statedthat he was .not prepared to take his wife back on the ground that shewas living in adultery. On the date of trial the learned Magistrateappears to have treated the case more or less as a civil proceeding betweenthe parties and in view of the fact that the defendant admitted marriageand denied paternity on the ground of adultery held that the burdenwas on him to prove that the wife was living in adultery and that he wasnot the father of the child. It is contended that the approach to thewhole case thus made by the Magistrate has not only no sanction in lawbut has resulted in causing prejudice to the defendant. Under section 2of the Maintenance Ordinance (Chapter 76) there are certain facts whichmust first be established by the applicant before an order for maintenancecan be made against the defendant; firstly, that the defendant hassufficient means and secondly, that he either neglects or refuses tomaintain his wife and thirdly, that the child in respect of whommaintenance is claimed is the child of the defendant. The mere neglector refusal on the part of the defendant does not necessarily enable theMagistrate to make an order against the defendant. He must besatisfied that the refusal or neglect was not upon sufficient cause. Againno order can be made against a defendant as section 4 of the Ordinancestates expressly that a wife ?who makes an application for an order againstthe husband must be one who is not living in adultery and must not beliving separately from her husband by mutual consent. All these factshave to be first established by the wife and the learned Magistrate wastherefore in error in calling upon the defendant to establish his casebefore the applicant’s case was placed before Court in accordance withlaw. Learned Counsel for the respondent has sought to contend thatno prejudice has been caused to the defendant as a result of his beingcalled upon to establish bis' defence first, but I am not prepared to saythat no prejudice in fact has been caused to the defendant. For thesereasons I would allow the appeal, set aside the order of the Magistrateand remit .the case for trial to be proceeded with before anotherMagistrate.
Order set aside.
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