K. Priyantha Fernando, J.(CA)

This matter pertains to an application for the transfer of a Maintenance Case, No. 370/24/Maintenance, currently pending before the Magistrate's Court of Pillessa. The Petitioner sought the transfer on the grounds that he would not receive a fair and impartial inquiry before the Learned Magistrate. The 1st Respondent opposed the application, submitting that the criteria for transfer under Section 46 of the Judicature Act were not satisfied.

THE PETITIONER’S POSITION:

The Petitioner, a Lieutenant Colonel, sought an order to transfer the Maintenance Case No. 370/24/Maintenance from the Magistrate's Court of Pillessa, citing a lack of judicial impartiality. The Petitioner had been voluntarily paying Rs. 20,000/- monthly for his daughter since 2021, a fact the 1st Respondent admitted in her application, where she sought an enhanced amount of 40,000/- per month.

The Petitioner alleged that the 1st Respondent failed to properly serve summons due to his frequent military assignments. Despite this, upon the Petitioner's first appearance in Court on November 8, 2024, the Learned Magistrate was reportedly hostile and threatened to remand him. The Magistrate dictated an order alleging the Petitioner had not appeared despite notice being sent in March 2024: "මේ තැනැත්තාට ලියාපදිංචි තැපැල් මගින් මනාතිසි යවා තිබින්මන් 2024 මා්᭨ු මාසමේ. මේ වන මතක් අධිකරණයට පැමිණ නැහැ" (Notice has been sent to this person via registered post in March 2024. He has not appeared up to now).

On the same day, the Magistrate issued an interim maintenance order of Rs. 30,000/- and granted bail on the condition of furnishing two sureties of Rs. 100,000 each. Subsequently, the Magistrate has rejected the Petitioner's elderly parents as sureties because they were above 60 years of age, a condition not stipulated in the original order.

Furthermore, an ex parte travel ban has been imposed on April 4, 2024, based solely on an unverified Affidavit claiming the Petitioner intended to migrate. When the Petitioner's counsel later applied to rescind the ban on December 6, 2024, the Magistrate has refused on the grounds that the request was not a "විධිමත් ඉල්ීමක්" (formal application) under the Maintenance Act. The Petitioner has also submitted a complaint regarding the Magistrate's conduct to the Judicial Services Commission (JSC) on November 29, 2024.

THE POSITION OF THE 1st RESPONDENT:

The 1st Respondent sought the dismissal of the Transfer Application, arguing that the Petitioner failed to satisfy the criteria under Section 46 of the Judicature Act for a transfer.

The 1st Respondent submitted that the Learned Magistrate of Pillessa did not act with bias but issued Orders that were duly considered and reasoned.

The 1st Respondent asserted that even if the Orders were erroneous in law or procedure, this did not constitute bias, relying on the precedent set in Abdul Hasheeb vs. Mendis Perera and Others [(1991) 1 SLR 243] by G. P. S. de Silva, J. The 1st Respondent justified the Magistrate's actions, noting that the travel ban was necessary to secure the Petitioner's attendance after he came before the Court only 8 months after the case was supported.

The Magistrate was correct to direct the Petitioner to make a "විධිමත් ඉල්ීමක්" (formal application) regarding the travel ban, as the Court could not proceed on mere oral applications. The 1^st Respondent cited the Magistrate's order: "ඉද කරනු ලබන විමේශ ගමන් තහනම පිළිබඳව කරනු ලබන ඉල්ීම නඩත්ු පනත ⷁᮅකාරව කරනු ලබන විධිමත් ඉල්ීමක් මනාවන බැවින්... ඒකී ඉල්ීම මේ අවස්ථාමේදී ⷁᮅතික්මෂ්ප කරමි" (The application regarding the travel ban is not a formal application in accordance with the Maintenance Act, and since a mere verbal request does not satisfy the Act, it is rejected at this instance).

Furthermore, the 1st Respondent noted that the Petitioner failed to utilize the available statutory remedies, such as filing an appeal under Section 14(1) of the Maintenance Act No. 37 of 1999 or a Revision Application to the High Court.