1937   Present: Moseley J.

SITHAYAMMA v. SINNIAH.

802-P. C. Teldeniya, 2,584.

Insolvency-Arrears of maintenance-Debt provable in insolvency-Insolvent protected from arrest-Ordinance No. 7 of 1853, s. 36.

An insolvent is protected from arrest for failure to pay arrears of maintenance that have accrued at the time of adjudication.

In re Insolvency of J. G. de Silva (2 N. L. R. 140) and Home v. de Kroos (5 S. C. C.11) referred to.

APPEAL from an order of the Police Magistrate of Teldeniya.

This was an application to commit an insolvent to prison for failure to comply with an order for maintenance. The learned Police Magistrate held that the protection in insolvency proceedings was of no avail against an order for maintenance.

H. V. Perera (with him G. E. Chitty), for defendant, appellant.-The liability to pay maintenance is a civil liability although it is enforced in quasi-criminal proceedings in order to facilitate recovery (Subaliya v. Kannangara [1 4 N.L.R. 121.]. It is in effect nothing more than a judgment-debt and a judgment-debt is provable in insolvency proceedings. The applicant could have proved her claim in the insolvency proceedings and the respondent would then clearly have been entitled to the same protection available to him in respect of his other debts. We have not here one of the cases contemplated in the exceptions set out in section 36 of the Insolvency Ordinance (No. 7 of 1853),' which would debar the insolvent from protection. Although in England alimony has been held not to be a debt provable in insolvency, the analogy between alimony and maintenance is incomplete, for the reason that while arears of maintenance are an ascertained lamount which the Court has no jurisdiction to vary, alimony, including arrears of alimony may for good cause be modified or even deleted by the Court. (Kerr v. Kerr [2 2 Q. B. D. 439 (77 L. T. 29).] and Linton v. Linton[ 3 15 Q. B. D. 239 C. A. (52 L. T. 782).]. Alimony is thus, unlike arrears of maintenance, a debt incapable of being fairly estimated or accurately ascertained and therefore not provable. Maintenance falling due after the date of adjudication of insolvency may come- into the same class as alimony.

No appearance for respondent.

Cur. adv. vult.

March 23, 1937. MOSELEY J.-

This appeal raises an interesting point as to whether or not, and if so to what extent, an insolvent is protected against an order committing him to prison for failure to comply with an order for maintenance, made under section 3 of the Maintenance Ordinance, No. 19 of 1889.

I quote the following extract from the order of the learned Magistrate ".- " It has been held that a decree for alimony is not a debt provable in bankruptcy proceedings (In the matter of the Insolvency of J. G. de Silva [ 4 2 N. L.R. 140.]  Much less could it be held that an order for maintenance is a debt provable in insolvency. In my opinion, therefore, the arrears of maintenance do not fall within the scope of the debts provable in insolvency proceedings. Consequently the protection in the insolvency case is of no avail against an order for maintenance ".

In the case cited by the learned Magistrate the following passage occurs in the judgment of Withers J.:-"It was irregular to arrest the husband under a writ in execution of that part of the decree which required him to secure alimony. He could not be adjudicated an insolvent on that as a debt, for it is not a debt provable in insolvency ".

Now, I think it is settled law that the liability of a defendant under an order for maintenance is purely a civil liability (Subaliya v. Kannan-gara[5 4 N. L. R. 121.], and that the relation subsisting between the parties is that of creditor and debtor. Section 36 of the Insolvency Ordinance provides that except in certain cases an insolvent shall, be free from arrest or

imprisonment by any creditor in coming to surrender or during the protection whic