EINA v. ERANERIS.

EINA v. ERANERIS.

P.     C., Balapitiya, 20,220.

Maintenance--Scope of the Maintenance Ordinance Position of the Defendant- Nature of order of Magistrate dismissing application for Maintenance-Appeal there from to the Supreme Court.

The maintenance Ordinance is not one dealing with criminal matter, but it provides a speedy and loss expensive way of enforcing a civil obligation resting on the father of a child, whether born in or out of wedlock, to maintain it.

Maintenance cases. being civil in their nature, should be decided according to the balance of evidence, and not on the footing that the innocence of the "accused" is to be assumed until the contrary to proved.

Maintenance is usually given to the mother on behalf of the child, but if she is unfit to receive the allowance, the Magistrate may order it to be paid to a person more fitted to have the care of the child.

Semble, per Bonser, C.J.-A Magistrate's order dismissing the application for maintenance is an appealable order.

Selestina v. Perera (2 C. L. R. 88 and 1 S. C. R. 224) questioned.

THIS was a case of maintenance. The Police Magistrate, after hearing some evidence, made order as follows: " I discharge the accused. The evidence does not warrant me in making an order of maintenance."

The petitioner applied to the Supreme Court to call for the record and consider the case in revision, because (1) she was advised that no appeal lay against any order on the part of the Police Magistrate refusing to make an order in the case; and (2) there was ample evidence that the defendant was the father of the child and had failed to provide for its maintenance.

Browne, A.J., after sailing for the record and perusing it, directed the case to he listed for revision and notice thereof to issue to the defendant. The Police Magistrate was also requested " to inform the Court why he considered the evidence did not '' justify his convicting the accused."

The Police Magistrate submitted a report, in which he reviewed the evidence and concluded as follows:-

" I do not think the evidence is sufficient. Possibly the child " may be the respondent's. He certainly never maintained it, as " he is said to have deserted applicant immediately after the birth. " I think it very doubtful, too, if he maintained applicant before " the birth. The two parties live closely together and they are " relations. Doubtless respondent visited applicant's house and " had meals with the family, but to construe this as keeping the " applicant is unjustifiable.

" It is of course bard on applicant, if the respondent is the father of her child. But I regard the Maintenance Ordinance as especially made for those unfortunate women who have lived with a man for years to all intents and purpose as his wife and then been deserted, and not for those who have received visits in " their own house by a young man and have conceived a child, and  then been abandoned by their paramour. In such cases, maintenance is not given. It is more seduction, and not maintenance.  In such cases, I regard the woman as being to blame as much as " the man. It is their own incontinence that is at fault, an incontinence such as I do not think the Maintenance Ordinance is  meant to encourage.

" Certain suspicions have been cast on applicant's character  sufficient at any rate to show she was open to temptation, though not enough to show her as a loose woman.

" The respondent should have the benefit of the doubt. Not  believing the evidence, it was unnecessary for me to call upon  the defendant."

The case in revision came on before the Chief Justice on the 15th June, 1900.

Allan Drieberg appeared for the applicant. [Bonser, C.J.- Why was there no appeal in this case?] Because the Police Magistrate was supposed to have made no order in the case. Selestina v. Perera (1 S.C. R. 224 and 2 C. L. R. 88), decided by Burnside, C.J. (1892), shows that an order dismissing an application for an order

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