Rigby J:

This was an appeal from an Order made by the learned President of the Sessions Court under the provisions of the Married Women and Children (Maintenance) Ordinance, 1950, whereby the appellant was ordered to pay a monthly sum for the maintenance of his former wife and his infant daughter.

I allowed the appeal since I was wholly satisfied that, for the reasons which I shall later state, the Subordinate Courts of Penang had no jurisdiction to entertain the application of the wife for maintenance in the first instance, but since the matter raised a point of some practical interest and importance, I intimated that I would give my reasons for my decision in writing. I now proceed to do so.

On the 26 October 1957, the former wife, the respondent to this appeal, swore a Complaint and Information before the Magistrate, Mr. Au Ah Wah, under the provisions of s. 3(1) Of the Married Women and Children (Maintenance) Ordinance, 1950, asking for a summons to issue against the present appellant to provide for the maintenance of herself and the daughter of their marriage. In the Complaint itself, the complainant gave her address as resident in Penang and stated that she was married to the appellant "of Malayan Airways (Paya

Lebar Airport), Singapore on 9 April 1949 at the Singapore Consulate-General." Upon her complaint the Magistrate authorized a summons to issue. The Summons itself was addressed to the appellant at Paya Lebar Airport, Singapore. It was endorsed by the Magistrate for service out of the jurisdiction and was duly served upon the appellant, in Singapore, on the 12 November 1957.

The appellant appeared at the hearing before the Magistrate on 16 November 1957. According to the record of the learned Magistrate, the appellant there stated

This Notice was served on me. I come from Singapore not to show disrespect. The procedure is wrong and for reasons which I am going to give I ask Court not to make an order.

The learned Magistrate, however, heard the evidence of both parties and adjourned the matter for his decision to be given thereon on 30 November 1957. On 30 November 1957 the Magistrate gave no decision but instead he made an order that the case be transferred to another Court for a trial de novo. It is, I think, clear that the reason why the Magistrate took this somewhat novel course was because a request had been made to him by the appellant at the commencement of the proceedings that the case be transferred to another Court for hearing on the ground that the respondent had from time to time seen the Magistrate for advice. In answer to that request the Magistrate stated upon the record:-

I inform defendant that applicant has seen me regarding the procedure and I have informed her about the procedure.

He then proceeded to hear the action.

There is clearly nothing improper in a Magistrate informing a complainant of the correct procedure to be followed in an application of this nature; indeed, it would, in my view, be wholly consistent with the duty of a Magistrate to give such assistance to a lay litigant ignorant of the intricacies of legal procedure. However, it is apparent that the learned Magistrate finally came to the conclusion that it would be better in the circumstances if the case was determined by another Magistrate. If that was his considered opinion it is, perhaps, unfortunate that he did not arrive at it at a very much earlier stage rather than to have heard and concluded all the evidence and then made an order which necessitated the rehearing of the evidence, ab initio, before another Magistrate.

However, as a result of the order made by the Magistrate the case came on again for hearing before the learned President of the Sessions Court on 13 February 1958. The learned President, instead of re-hearing the case de novo, contented himself with hearing the evidence of the appellant (the respondent to that application) only. He then made the Order which is the subject matter of this appeal