PODINA v. SADA.

P. C., Balapitiya, 80,239.

Maintenance-Ordinance No. 19 of 1889-Irregular commencement of suit- Evidence of paternity-Competency of wife to give such evidence.

Before summons can be served in a case of maintenance, under Ordinance No. 19 of 1889, it is necessary that there should be a written application to the Police Magistrate signed by the applicant, and an examination of the applicant on oath or affirmation.

It is not necessary that the mother should be the applicant.

The evidence of the wife to show who the true father is is not admissible till it has been established by independent evidence that the child is not the child of her husband.

THIS was a case of maintenance. It appeared that the complainant was lawfully married to one Babuwa in 1893, but that she refrained from living with her husband, as she discovered soon after the marriage that he was living with another woman and had children by her. The defendant attempted to prove that the child, which was ten months old, and in respect of which this case was instituted, was Babuwa's. The Police Magistrate found the child to be the defendant's, and ordered him to pay 'maintenance at the rate of Rs. 2 per month. He appealed.

H. J. C. Pereira, for appellant.-The proceedings were irregularly commenced. Summons on the appellant was served without examining the applicant on oath or affirmation, as required by

section 14 of Ordinance No. 19 of 1889. The basis of the proceedings is a report of a headman to the Court that complainant had made a complaint to him that the appellant failed to maintain his child by her. There was no evidence to rebut the presumption raised by section 112 of the Evidence Ordinance that the child in question was her husband's. The complainant swore that, after marriage and separation the day after, " we never saw one another." This evidence is inadmissible. Appellant has proved that the complainant was in fact conducted to her husband's house and Jived with him, that the appellant is complainant's cousin, and that owing to ill-feeling this false case has been instituted.

Bonser, C.J.-

This is a case under the Maintenance Ordinance, No. 19 of 1889, in which the Police Magistrate of Balapitiya has made an order against the respondent to pay the sum of Rs. 2 a month for the maintenance of an infant child, which he finds to be the respondent's child. The mother is a cousin of the respondent. The proceedings were in the highest degree irregular, and I cannot help thinking that the Magistrate had never read the Ordinance under which he purported to act. The proceedings were commenced by a report sent to the Magistrate by the headman of the village in which the mother lived, to the effect that the woman had complained to him that the respondent had been living with her and had a child by her, and that he had recently deserted her. The report went on to state that he had made inquiries into the matter and found that the respondent and the woman had been living together as husband and wife.

Attached to the report is a list of witnesses. It will be seen that this is the ordinary form of a report of a crime which has come under a headman's cognizance. On that report the Magistrate issued a summons to the respondent to appear to answer the charge, " for that you did since last month failed (sic) to " maintain your child by Singappapullehena Radage Podina." Now that is not the way in which, according to the procedure prescribed by the Ordinance, proceedings for obtaining maintenance are to be commenced. The application is to be in writing and signed by the applicant, and then upon that application the Magistrate is to commence the inquiry by examining the applicant on oath or affirmation, and after that, and then only, is the summons to be issued. Now I do not say that it is necessary for the mother to be the applicant. The Ordinance does not say so; but, whoever the applicant is, the applicant