095-NLR-NLR-V-38-WIJEYSURIYA-v.-SILVA.pdf
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ABRAHAMS CJ.—Wijeystiriya v. Silva.
1937Present: Abrahams CJ. and Maartensz J.
WIJEYSURIYA v. SILVA.
563—P. C. Tangalla, 27,567.
Maintenance—Arrears in respect of several months—One warrant in respect ofmore than one breach—Imprisonment for six months under one warrant—Ordinance No. 19 of 1889, s. 9.
Under section 9 of the Maintenance Ordinance a Magistrate has powerto issue one warrant in respect of more than one breach of an order forthe payment of maintenance and to include in it a sentence of onemonth’s imprisonment for each breach.
ASE referred by Maartensz J. to a Bench of two Judges.
The question referred was whether it was competent to a PoliceMagistrate under section 9 of the Maintenance Ordinance to sentence therespondent who was in arrears in respect of an order of maintenance forseveral months to a term of six months’ imprisonment under one warrant.
B. Wickramanayake, for appellant.—Section 9 of the MaintenanceOrdinance limits the term of imprisonment to one month no matterhow many months the offender is in arrears. For every breach of theorder the applicant should apply for a warrant and if she permits him tofall into arrears and apply for a warrant the Court cannot inflict acumulative term of imprisonment. She must suffer for her negligence.
Section 488 of the Indian Criminal Procedure Code is the correspondingsection to our section 9, and a Bench of three Judges of the High Courtheld this view in Queen Empress v. Namin'.
S.W. Jayasuriya, for respondent.—The form of the warrant in theSchedule to our Ordinance makes it clear that a single warrant could beissued in respect of more than one breach of the order. The section alsocontemplates a cumulative warrant and a cumulative punishment(Sivakaman v. Velupillai ’).
The Full Bench decision in Queen Empress v. Narain {supra) hasno reference to the amendment of section 316 of the Indian Code of1861 by introducing the new section 488. Under the old section theterm of imprisonment was limited to one month and its amendment bysection 488 clearly indicates that they intended to impose a heavierterm of imprisonment. In Allapichai Ravuther v. Mohidin Bibi*, twoJudges held that this was the correct interpretation and disagreed withthe view taken in Queen Empress v. Narain and the Madras decision hasbeen followed in Bhiku Khan v. Zahuran1; Emperor v. Budhu Ram*; andZaw Ta v. Emperor’.
Cur. adv. vult.
May 6, 1937. Abrahams C.J.—
The appellant in this case was ordered by the learned Police Magistrate,Tangalla, to pay a monthly sum in respect -of the maintenance of hisinfant daughter by his wife the respondent. He fell many months into
11. L. R. 9 AU. 240.* 34 N. L. R. 80.
5 I. L. R. 20 Mad. 3.
I. L. R. 25 Cal. 291.
5 (1919) A. I. R. Lahore 197.
(1914) A. I. R. Lower Burma 163 (2).
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ABRAHAMS C.J.—Wijeysuriya v. Silva., Ti
arrears and eventually, at the instance of the respondent, a distfce£5warrant was levied which proved ineffective, and, purporting to act uhdersection 9 of the Maintenance Ordinance, 1889, the Magistrate sentencedhim to rigorous imprisonment for six months. Against this order forimprisonment he appealed, and Maartensz J. before whom the appeal waslisted referred the case to a Bench of two Judges on the point as to whetherthe provision of law under which the order was made enables a sentenceof more than one month’s imprisonment to be passed. The point is oneof considerable importance as it is a question which, as Maartensz J. says,often comes before the Court. The section reads as follows : —
“ 9. If any person against whom an order is made under section 3neglects to comply with the order, the Magistrate may for every breachof the order issue a warrant directing the amount due to be levied inthe manner by law provided for levying fines imposed by Magistrates inthe Police Courts, and may sentence such person for the whole or anypart of each month’s allowance remaining unpaid after the executionof the warrant to simple or rigorous imprisonment for a term whichmay extend to one month.”
Strangely enough the interpretation of this section appears to havecome before this Court on only one occasion when Macdonell C.J. was ofthe opinion in Sivakamam v. Velupillai that a sentence of six months’imprisonment following upon a single warrant issued in respect ofeighteen months’ maintenance was perfectly valid. The learned ChiefJustice said : —
“ It was admitted in argument that if a warrant had been taken outat the end of each one of those eighteen months and the respondenthad received a month’s imprisonment under each one of those warrantsthis would have been perfectly lawful under section 9. I do not seethat the mere fact that one warrant has been issued for the wholeamount at all invalidates what the Magistrate has done. TheMagistrate has not made order of imprisonment beyond the six monthswhich the law allows him in default of payment.”
It would appear from this judgment that the point contested waswhether a single warrant could be issued in respect of more than onebreach of the Magistrate’s order, and that it was not argued thatimprisonment could not be cumulative but must be limited to one monthno matter how many months the offender was in arrears.
The form of Warrant of Imprisonment given in the Schedule to theOrdinance, and which is directed by section 18 to be used in a case as sorequired, clearly implies that one warrant can do duty in respect of morebreaches than one of the order. It was however pointed out byMaartensz J. in his reference, and it has been also pointed out at thishearing, that there is a conflict of authority in the Indian Courts on theinterpretation of section 488 of the Criminal Procedure Code, which is forall intents and purposes identical with section 9 of the MaintenanceOrdinance. In the Queen Empress* v. Namin', a Bench of three, of whichthose distinguished Judges Edge C.J. and Straight J. formed part, were
34 N. L. B. 80.
11. L. R. 9 AU. 240.
ABRAHAMS C.J.—Wijeysuriya v. Silva.
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of the opinion that where a warrant was issued in respect of an accumu-lation of arrears of maintenance the term of imprisonment to be inflictedshould not exceed one month. So far as I understand this judgment itappears to lay down that if it is sought to recover an accumulation ofarrears a separate warrant should issue for each separate breach, and if asingle warrant is issued in respect of several breaches, a procedure whichStraight J. regarded as an informality but which Oldfield J. appears tohave regarded as a legitimate proceeding, the term of imprisonmentshould not exceed one month. In the case of Allapichai Ravuther v.Mohidin Bibi1, Subramania Ayyar J. and Davies J. disagreed with theAllahabad decision, pointing out that section 488 of the Indian CriminalProcedure Code varied considerably from the “terms of section 316 of theformer Criminal Procedure Code of 1861, which contained the law relatingto maintenance orders and which section 488 of the present Code replaced,and they held in emphatic terms that the maximum term of imprisonmentwhich could be imposed would be one month for each month’s arrears.In Bhiku Khan v. Zahuran”, Hill and Stevens JJ. were of the sameopinion as the Madras Bench, and Addison J. in Emperor v. SadarMuhammad3, and Broadway J. in Emperor v. Budhu Ram *, were of theopinion that the correct interpretation of section 488 was that which waslaid down in the Madras and Calcutta cases above mentioned. On the'other hand, Hartnoll Offig. C.J. and Ormond J. in Zeno Ta viEmperor were of the opinion that one month’s imprisonment only couldbe passed in respect of one month’s arrears or an accumulation of severalmonths’ arrears, but with due respect to those learned Judges I find theirreasoning somewhat involved and it does not commend itself to me, for itseems to me that the meaning to be preferred is -that which, if I may soexpress it, leaps to the eye, and that is that for each month’s breach (andthe word “ each ” in its simplest connotation has the meaning of separateidentity) a month’s imprisonment can be awarded. That interpretationalso seems consonant with reason since otherwise a defaulter in respectof several months would be in no worse position than a defaulter in respectof one month only, since, as I have said above, the Ordinance clearlycontemplates the issue of one warrant in respect of more than one breachof a Magistrate’s order.
Counsel for the appellant, however, contends that if a woman in whosefavour a maintenance order has been made against her husband, permitshim to fall into arrears and takes no proceedings until an accumulation ofarrears, she ought, to use his own words, to suffer for her negligence.But this does not explain why the Ordinance seems to contemplateproceedings on an accumulation of arrears. And why should it bepresumed that an omission to proceed in respect of the first breach is dueto negligence, when this may be due to forbearance put of sentiment ormay be due to persuasion by fair promises ultimately unfulfilled.
In my opinion this appeal should be dismissed.
Maartensz J.—I agree.
Affirmed.
1 I. L. R. 20 Mad. 3.
11. L. R. 25 Cal. 291.
8 (1914) A. I. R. Lower Burma 163 (2).
(1935) A. 1. R. Lahore 758.
(1919) A. I- R. Lahore 197.
31/38.