1937 Present : Abrahams CJ. and Maartensz J.

WIJEYSURIYA v. SILVA.

563-P. C. Tangalla, 27,567.

Maintenance-Arrears in respect of several months-One warrant in respect of more than one breach-Imprisonment for six months under one warrant -Ordinance No. 19 of 1889, s. 9.

Under section 9 of the Maintenance Ordinance a Magistrate has power to issue one warrant in respect of more than one breach of an order for the payment of maintenance and to include in it a sentence of one month's imprisonment for each breach.

CASE referred by Maartensz J. to a Bench of two Judges.

The question referred was whether it was competent to a Police Magistrate under section 9 of the Maintenance Ordinance to sentence the respondent who was in arrears in respect of an order of maintenance for several months to a term of six months' imprisonment under one warrant.

E. B. Wickramanayake, for appellant.-Section 9 of the Maintenance Ordinance limits the term of imprisonment to one month no matter how many months the offender is in arrears. For every breach of the order the applicant should apply for a warrant and if she permits him to fall into arrears and apply for a warrant the Court cannot inflict a cumulative term of imprisonment. She must suffer for her negligence.

Section 488 of the Indian Criminal Procedure Code is the corresponding section to our section 9, and a Bench of three Judges of the High Court held this view in Queen Empress v. Narain[1 I. L. R. 9 All. 240. ].

S. W. Jayasuriya, for respondent.-The form of the warrant in the Schedule to our Ordinance makes it clear that a single warrant could be issued in respect of more than one breach of the order. The section also contemplates a cumulative warrant and a cumulative punishment (Sivdkaman v. Velupillai [2 34 N. L. R. 80. ] ).

The Full Bench decision in Queen Empress! v. Narain (supra) has no reference to the amendment of section 316 of the Indian Code of 1861 by introducing the new section 488. Under the old section the term of imprisonment was limited to one month and its amendment by section 488 clearly indicates that they intended to impose a heavier term of imprisonment. In Allapichai Ravuther v. Mohidin Bibi'[3 I. L. R. 20 Mad. 3. ] two Judges held that this was the correct interpretation and disagreed with the view taken in Queen Empress: v. Narain and the Madras decision has been followed in Bhiku Khan v. Zahuran [4 I. L. R. 25 Cal. 291.]; Emperor v. Budhu Ram [5 (1919) A. I. B. Lahore 197.] and Zaw Ta v. Emperor [6 (1914) A. I. B. Lower Burma 163 (2).]

Cur. adv. vult.

May 6, 1937. ABRAHAMS C.J.-

The appellant in this case was ordered by the learned Police Magistrate, Tangalla, to pay a monthly sum in respect of the maintenance of his infant daughter by his wife the respondent. He fell many months into

arrears and eventually, at the instance of the respondent, a distress warrant was levied which proved ineffective, and, purporting to act under section 9 of the Maintenance Ordinance, 1889, the Magistrate sentenced him to rigorous imprisonment for six months. Against this order for imprisonment he appealed, and Maartensz J. before whom the appeal was listed referred the case to a Bench of two Judges on the point as to whether the provision of law under which the order was made enables a sentence of more than one month's imprisonment to be passed. The point is one of considerable importance as it is a question which, as Maartensz J. says, often comes before the Court. The section reads as follows : -

" 9. If any person against whom an order is made under section 3 neglects to comply with the order, the Magistrate may for every breach of the order issue a warrant directing the amount due to be levied in the manner by law provided for levying fines imposed by Magistrates in the Police Courts, and may sentence such person for the whole or any part of each month's allowance remaining unpaid after the execu