Gunawardene V. Abeyewickreme

1914 Present: Wood Renton C.J.

GUNAWARDENE v. ABEYEWICKREME.

688-P. C. Galle, 6,524.

Maintenance-Married woman having income sufficient to maintain herself.

Obiter.-A married woman who is living apart from her husband through no fault of her own is not debarred from claiming maintenance (under Ordinance No. 19 of 1889) by the fact that she has a personal income sufficient for her maintenance.

THIS case was reserved for argument before a Bench of two Judges by Pereira J. On the question whether the Police Court of Galle had jurisdiction, Wood Renton C.J. and Ennis J. delivered the following judgment, and sent the case for argument before a single Judge on the other points involved in the case:-

Wood Renton C.J.-- This is a proceeding under Ordinance No. 19 of 1889, in which the applicant seeks an order for maintenance against her husband, the respondent. The question referred to a Bench of two Judges for decision is whether the Police Court of Galle had jurisdiction in respect of the application when the defendant admittedly lived at Matara, that is to say, outside the territorial limits of the jurisdiction of the Police Court of Galle. It now appears that the abstract question of jurisdiction need not be decided in this case, because it is clearly a case to which the provision of section 423 of the Criminal Procedure Code should be applied. There were two trials in this case. The defendant took no objection to the jurisdiction of the Police Court of Galle through on the first trial, nor did he take any such objection before this Court in the course of the first appeal, but he practically acquiesced in the order for further hearing made by this Court, and then for the first time took this objection before the Police Court at the further hearing of the case. The Police Court of Galle has now made an order adverse to

the defendant. I see no reason whatever for thinking that the fact that the trial took place in a wrong local area (assuming that to be so merely for the sake of argument) has occasioned a failure of justice. I would apply to the case section 423 of the Criminal Procedure Code, and remit the case to be dealt with in due course by a single Judge of this Court.

Ennis J.-I am of the same opinion.

A. St. V. Jayewardene, for the appellant.

Bartholomeusz (with him Loos), for the respondent.

September 29, 1914. Wood Renton C.J. -

This appeal could be disposed of upon the evidence alone. The respondent's counsel did not argue before me the point that the separation between the respondent and his wife, the appellant, was a separation by mutual consent, and I am far from being satisfied on the evidence that the appellant's personal income is sufficient for her maintenance. The fact that the respondent, having deserted his wife, or compelled her by his conduct to leave him, has contracted an adulterous connection with, and has had children by. another woman, is no reason for absolving him from the duly of maintaining his wife. But as the case involves an important point of law, which was fully argued before me. I will state my opinion upon it. The appellant is living apart from her husband through no fault of her own, but she has, ex hypothesi, a personal income sufficient for her maintenance. Is she debarred by this circumstance from taking proceedings against the respondent under the Maintenance Ordinance, 1889 (No. 19 of 1889) ? The appellant's counsel. Mr. St. Valentine Jayewardene, strenuously argued that she is He contended that, on the authority of the judgment of Sir John Bonser C.J. in Subaliya v. Kannangara,1 the Ordinance of 1889 is founded upon, and gives effect to, the Roman-Dutch law as to maintenance, and merely provides a simpler process for the enforcement of that law; that under the Roman-Dutch law the husband was under no obligation to maintain a wife who had any property of her own, except in such circumstances as would entitle her to bind hi

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