Present: Garvin J.

VELUPILLAI v. SANMUGAM.

278-P. C. Point Pedro, 11,940.

    Maintenance-Arrears of maintenance-Time limit-Ordinance No. 19 of 1889.

Where an order for maintenance has been made under section 3 of the Maintenance Ordinance there is no limit either to the amount of arrears recoverable or the time within which such arrears may be recovered.

APPEAL from an order of the Police Magistrate of Point Pedro directing the issue a of distress warrant for the recovery of a sum of Rs. 3,730, being arrears of maintenance payable under an order made under section 3 of the Maintenance Ordinance. The order was made on June 22, 1906, on the application of Valliamma, the wife of the appellant, and was to the effect that the husband should pay maintenance at the rate of Rs. 20 per mensem. Shortly after the order, the appellant left for the Straits where he remained till the end of 1927. The Police Magistrate allowed the application authorizing the recovery of arrears at the rate of Rs. 10 per mensem for the wife, and a similar sum for the child.

H. V. Perera (with Gnanaprahasam).-The claim is for arrears of maintenance from June 21, 1906, till about December, 1927, at the rate of Rs. 20 per month.

Two points arise for argument: first, whether the order for maintenance passed on June 21, 1906, was for the child or the wife, or for both ; second, whether there is any prescription for arrears of maintenance under the Maintenance Ordinance.

The Maintenance Ordinance says that the monthly maintenance shall be recoverable as a fine under the Criminal Procedure Code.. (See 312 (1) (h) of the Criminal Procedure Code.) Fines under the above section must be recovered within six years, Similarly arrears of maintenance are not recoverable after six years.

The order of June 21 was only for the child. The wording of the order is vague. Since the defendant was willing to take the wife with him and to maintain her, before granting her any maintenance the Court must be satisfied that the defendant was living in adultery or that he habitually treated the applicant with cruelty. There was no proof of either of cruelty or adultery. The consequent presumption is that the Court acted in accordance with law and did not grant any maintenance for the wife. (See

section 4 of Ordinance No. 19 of 1889.) The order being vague, 1928. it must be construed to mean that the maintenance was only for Velupillai the child.

Under section 8 of the Maintenance Ordinance, there should be no maintenance for the child after the child is fourteen years of age. The child became fourteen years old on October 21, 1915.

Hayley, K. C. (with Balasingham).-There is no limitation under the Maintenance Ordinance. Only so much of the Criminal Procedure Code applies to actions under the Maintenance Ordinance as are specifically made applicable by the Maintenance Ordinance. Section 9 says the amount ordered may be levied " in the manner by law provided for levying fines in the Police Courts." This places no bar on the time during which arrears may be recovered.

August 30, 1928. GARVIN J.-

This is an appeal from an order directing the issue of a distress warrant for the recovery of a sum of Rs. 3,730 alleged to be the arrears of maintenance payable by virtue of an order under section 3 of the Maintenance Ordinance, No. 19 of 1889, made on June 22, 1906. That order was made on the application of Valliainmai, the wife of the present appellant, who complained verbally to Court on June 19, 1906, that she and her child, a girl then of the age of four years, had been deserted by the appellant . who had since failed to maintain them. On June 21, 1906, the day appointed for the hearing the husband appeared and stated: " I am even now maintaining them. I am ready to take her and the child with me." The applicant said : " I am afraid to go with him." An argument then took place between the Counsel for the