Justina V. Arman

Present: Mr. Justice Middleton and Mr, Justice Wood Renton.

ANNA PERERA v. EMALIANO NONIS.

P. C., Colombo, 24, 000.

JUSTINA v. ARMAN.

P. C., Galle, 44, 050.

Maintenance Ordinance (No. 19 of 1889)-Nature of proceedings-Civil liability-Plea of autrefois acquit-Plea of res judicata- Renewal of application-Criminal Procedure Code, how far applicable-English Law-Roman-Dutch Law.

Held, that where an application for maintenance under Ordinance. No. 19 of 1889 is struck out without any inquiry into the merits, the applicant has no right of appeal under section 17 of the Ordinance, but may make a fresh application, provided the time limit prescribed by section 7 has not expired.

Held, also, that the failure to maintain a wife and children is not an offence under the law of Ceylon, and no plea of autrefois acquit can be set up by a defendant who has successfully resisted proceedings under Ordinance No. 19 of 1889.

Held, further, that only those sections of the Criminal Procedure Code which are expressly incorporated in Ordinance No. 19 of 1889, are applicable to proceedings under that Ordinance, and that the provisions of section 194 of the Criminal Procedure Code should not be applied to proceedings under Ordinance No. 19 of 1889.

Sabhoor Umma v. Coos Kanny disapproved.

Per Middleton and Wood Renton JJ. -The use of the terms "complainant, " "accused, " "discharge, " and "acquittal" in maintenance proceedings is unwarranted by the Ordinance, and should be abandoned.

THESE were cases under the Maintenance Ordinance of 1889 (No. 19 of 1889).

In Anna Perera v. Emaliano Nonis, 402. P. C, Colombo, 24, 000, the defendant appealed from an order condemning him to pay Rs. 5 a month by way of maintenance for his two illegitimate children.

Tambiah, for the defendant, appellant, Koch, for the petitioner, respondent.

1 (1909) 12 N. L. R. 97.

In Justina v. Arman, 387, P. C, Galle, 44, 050, the petitioner applied to revise an order of the Police Magistrate refusing to reopen the case and to re-issue summons.

Bartholomeusz, for the applicant in revision. No appearance for the respondent.

The facts and arguments in both cases are fully stated in the judgments.

Cur. adv. vult.

August 21, 1908. Middleton J. -

The above two maintenance cases were referred respectively by my brother Wood Renton and myself to a Court of two Judges, in view of the decision of my brother Wendt in Sabhoor Umma v. Coos Kanny. 1

In 402, P. C., Colombo, 24, 000, the Magistrate, without hearing any evidence after two adjournments, on the third occasion, the applicant being not ready, noted on the record " Respondent discharged. " The Magistrate subsequently re-opened the case and made an order for maintenance. It was contended on appeal that the order of discharge operated as an acquittal.

In 387, P. C, Galle, 44, 050, which I reserved, the Magistrate heard the evidence of the applicant, on the application for process, and fixed the case for March 11, 1909, on which date the applicant put in a document alleging an amicable settlement, and asked leave to withdraw' the proceedings. The Magistrate allowed this, but noted on the proceedings " application dismissed, accused acquitted. "

On an alleged breach of the amicable settlement the application was renewed on April 27, May 12, May 25, and June 2, and on each occasion refused, the Magistrate saying he could do nothing on the face of his order of March 11. An appeal was entered against the Magistrate's order of refusal on June 2, but being defective in some way, my brother Wood Renton allowed notice to issue to the defendant in revision.

The two cases were argued at the same time, and it is appropriate that they should be covered by one judgment I have had the advantage of reading the elaborate judgment of my brother Wood Renton, and I agree with him.

I think that Bonser C. J. 's opinion in 4 N. L. R. 123, that the civil liability of the father to maintain his illegit

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