SHELTON ABEYWICKRAMA

SHELTON ABEYWICKRAMA

VS.

ATTORNEY-GENERAL AND 2 OTHERS

COURT OF APPEAL
L.T.B.DEHIDENIYA. J.
SHIRAN GOONERATNE, J.
CA/MC/RV/24/2016
SEPTEMBER 11, 2017.

Maintenance Act - Section 5 - Maintenance Ordinance - Section 8 - Arrears of maintenance -Order of imprisonment - Is it legal - Criminal Procedure Code - Section 14 - Applicability - Special powers given to the Magistrates Court? - Which law applies?

The petitioner was in arrears of maintenance for 38 months. The Magistrate's Court imposed a term of imprisonment of 38 months. It was contended that the Magistrate could not have imposed 38 months' imprisonment.

HELD:

(1) In terms of Section 14 of the Criminal Procedure Code, a Magistrate's Court can impose any term of sentence if it is governed by any enactment in force whereby special powers of punishment are given. The Maintenance Act is such an enactment.

(2) Terms of imprisonment that could be imposed by the Magistrate Court in a maintenance case for not complying with the order to pay the allowance is governed by the Maintenance Act - Section 5.

APPLICATION in Revision from an order of the Magistrates Court of Balangoda.

Case referred to:

Siriwardena Vs. Emalin 59 NLR 263

Kalyananda Thiranagama for the Petitioner.
Varunika Hettige DSG for the Respondents.

Cur.adv.vult.

Octobers 2017.

L.T.B.DEHIDENIYA J.

This is an application filed by the Petitioner seeking the intervention of this Court in the order of imprisonment made by the Magistrate's Court of

Balangoda in a maintenance application. The facts of this case as per the petition are that the Petitioner was ordered to pay the maintenance for his wife but was in arrears of 38 months and the Court has imposed a term of 38 months imprisonment. The contention of the petitioner is that the said term of imprisonment is illegal. The learned DSG submitted that the section 8 of the Maintenance Act provides for the Court to impose one month's imprisonment for the failure to pay the maintenance for one month and the period of imprisonment that a Magistrate Court can order is governed by the Maintenance Act, not by the Criminal Procedure Code.

The fact that the Petitioner was in arrears of maintenance for 38 months was not in issue. The only issue was whether the Magistrate Court can impose a term of imprisonment of 38 months. The section 5 of the Maintenance Act No. 37 of 1999 reads thus;

5.

(1) Subject to the provisions contained in section 10, where any person against whom an order is made under section 2 or the proviso to section 11 (I) thereinafter called the "respondent") neglects to comply with such order, the Magistrate may, for every breach of the order, sentence such respondent for the whole or any part of each month's allowance in default, to simple or rigorous imprisonment for a term, which may extend to one month.

(2) The Magistrate may, if an application is made in that behalf by any person entitled to receive any payment under an order of maintenance, before passing a sentence of imprisonment on the respondent, issue a warrant directing the amount in default to be levied in the manner provided by law for levying fines imposed by Magistrates in the Magistrate's Courts:

In the present case the learned Magistrate has ordered the imprisonment of one month for nonpayment of every one month.

The power of sentencing by the Magistrate's Court is provided in section 14 of the Criminal Procedure Code. The section 14 reads thus;

A Magistrate's Court may impose any of the following sentences: -

(a) imprisonment of either description for a term not exceeding two years;

(b) fine not exceeding one thousand five hundred rupees; [§,21 of 2005] Repealed.

(d) any lawful sentence combining any of the sentences aforesaid.

Provided that anything in this section shall not be deemed to repeal the provisions of any enactment in force whereby special powers of punishment are given.

Under the proviso to th

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