SUBALIYA v. KANNANGARA.

SUBALIYA v. KANNANGARA.

P. C, Balapitiya, 17,054.

Maintenance order in Police Court case-Res judicata-Civil liability of father to maintain his illegitimate child-Right of mother to true the father civilly.

A Police Magistrate having condemned the putative father of a child to maintenance, the Supreme Court quashed the order on the ground that it had not been proved that he had neglected or refused to maintain it.

Held, that this order was not res judicata as regards the question of paternity; and that, if the Magistrate's order was quashed because it had not been proved that the infant was the child of the appellant, it would have been a bar to any subsequent application.

But the question whether the father refuses or neglects to maintain his child is one that may be raised from time to time, according to the circumstances of the case.

Per Bonser, C.J.-The foundation of the jurisdiction of the Police Court in matters of maintenance is the civil liability of the father already existing under the Roman-Dutch Law, wherein the mother can on behalf of the child compel the performance of this duty by a civil action. The Ordinance No. 19 of 1889 provides a simpler, speedier and less costly remedy.

Rankira v. Kiri Hattena (1 N. L. R. 86) questioned.

IN this case of maintenance, when defendant was called upon to " show cause why he should not be convicted," he referred to an order made by the Supreme Court in case No. 16,395, whereby the order of the Police Magistrate directing the defendant to pay Rs. 3 monthly to the complainant for the maintenance of her child was discharged.

The Police Magistrate, finding that the judgment of the Supreme Court not merely discharged the order of the Police Court, but quashed it, resolved " to continue those proceedings and make an order in the case."

After the case for the applicant was closed the Magistrate recorded as follows: " The defendant makes no statement nor offers himself to be examined in defence, or calls any witnesses." The Magistrate, therefore, condemned the defendant to pay Rs. 3 per month to the applicant for the maintenance of the child.

Defendant appealed.

Van Langenberg, for appellant, cited Rankira v. Kiri Hattena (1 C. L. R. 86). No appearance for respondent.

31st January, 1899. Bonser, C.J.-

This is an application by a young woman for a maintenance order against the appellant, whom she alleges to be the father of her illegitimate child.

The appellant appeared at the hearing of the application, and by his proctor contended that the application was barred, and that the matter was res judicata and could not be re-opened. The Magistrate decided against him, and the appellant took no further part in the proceedings. The Magistrate heard the application and decided that the defendant was the father of the child, and that he did neglect and refuse to maintain it, and made the order appealed from.

The first question was whether the contention of the appellant, that the matter was res judicata, can be sustained or not. It appears that a previous application had been made by the mother against the appellant, which was allowed. The appellant then appealed to this Court, and the order was quashed, not on the ground that the appellant was not proved to be the father of the child, but on the ground that it had not been proved that the appellant had neglected or refused to maintain it. Now, with all respect to my learned brother who so decided, I must confess that I cannot follow the reasoning by which he arrived at this result. It would appear, according to the statement of the mother, that she being a girl of fifteen or sixteen was seduced by the appellant. Her mother apparently knew of this and did not object. When the child was born, the appellant professed himself willing to marry her, but her father and her brothers refused to allow the marriage because they disapproved of the character of the appellant. The judgment cont

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