1917 Present: De Sampayo J.

KATHERINA v. DAVITH.

279-P. C. Galle, 49,801.

Maintenance - Imprisonment for default of payment of allowance decreed-Is liability to pay allowance extinguished

Where a person ordered to pay maintenance under Ordinance No. 19 of 1889 has suffered imprisonment for default of payment of the allowance, the liability to pay the allowance in respect of which the imprisonment was imposed is extinguished.

THE facts appear from the judgment.

Bartholomeusz, for applicant, appellant.-The liability for maintenance is of a civil nature. It is not extinguished by imprisonment. Any payment made subsequent to the imprisonment could be applied for the payment of arrears which became due previous to the imprisonment.

A sum of Rs. 231 was due at the time the respondent was sentenced to imprisonment. No part of that had been paid or recovered when he was brought up the second time on a warrant, but another Rs. 60 had by then become due. Therefore the sum of Rs. 18 which was paid had to be applied for the part payment of the Rs. 231; and till the whole of that sum of Rs. 231 is paid no sum could be applied to the payment of what became due subsequently. -

In any case, as only Rs. 18 was paid, the respondent should not have been discharged. According to the journal entries, nothing has been paid at all from the date of the order.

M. W. H. de Silva, for defendant, respondent.-Section 9 of the Maintenance Ordinance clearly shows that any sums due are extinguished by undergoing imprisonment in default. The provision that the imprisonment should be " for the whole or any part of each month's allowance remaining unpaid after execution of the warrant " implies that the imprisonment takes the place of payment; see Sideshwar v. Cyanada Dasi.1[(1894) I. L. R. 22 Cal. 291.]

If it be held that imprisonment does not wipe off the arrears, a man who once falls into arrear will hardly ever get a chance of getting out of jail. Such is not the intention to be gathered from the language of the Ordinance.

The Maintenance Ordinance provides that the amount due should be levied in the manner, provided for levying fines. Therefore,

when imprisonment has been undergone in default the liability to  pay the amount is extinguished (Shockman v. Balaya1[(1916) 19 N. L. R. 312.]).

The parties accepted 'in the lower court that only Rs. 18 was  due for the period subsequent to the imprisonment. The Judge proceeded on that footing. Even the petition of appeal makes no complaint as to the amount. There are journal entries showing that certain property has been sold.

Cur. adv. vult.

April 20, 1917. DE SAMPAYO J.-

This appeal raises an important point under the Maintenance Ordinance, No. 19 of 1889. The appellant was the mistress of the respondent and had four minor children by him, and on her application an order was made by the Police Magistrate, on January 24, 1911, for the payment to her of Rs. 5 a month for the maintenance of the children. The respondent having made default in the payment of this allowance, a distress warrant appears to have issued on March 15, 1911, but was returned with the report that the respondent was not possessed of any movable property. On March 27, 1911, a warrant was issued for the arrest of the respondent, but, though re-issued from time to time, it was not executed, as the respondent had absconded. He was accordingly proclaimed, and certain immovable property belonging to him was sequestered and ultimately sold. He was, however, arrested and brought to Court on February 26, 1916, at which time Rs. 310 was due as arrears of maintenance for five years and two months. He was therefore sentenced to imprisonment for a period of six months under section 9 of the Ordinance. He underwent the full period of imprisonment without making any payment. On February 23, 1917, a distress warrant, together with a warrant of arrest, was again issued. He w