1939     Present. de Kretser J.

ARYANAYAGAM v. THANGAMMA.

494-M. C. Jaffna, 6,205. 

Maintenance-Order of District Court making provision jar maintenance of children-Bar to proceedings under Maintenance Ordinance.

An order made by the District Court in the exercise of its matrimonial jurisdiction making provision for the maintenance of the children of the marriage operates as a bar to proceedings for their maintenance under the Maintenance Ordinance.

THIS was an application for maintenance of children brought by the mother, the applicant-respondent, against the defendant, their father. The Court allowed the application. The question argued in appeal was whether an order made by the District Court in the exercise of its matrimonial jurisdiction, making provision for the maintenance of children, operates as a bar to proceedings under the Maintenance Ordinance for their maintenance by the mother of the children against their father.

S. Nadesan, for defendant, appellant.-The decision in Lamehamy v. Karunaratne [1 22 N. L. R. 289.], does not apply to a case where maintenance is claimed on behalf of a legitimate child between whose parents an action for judicial separation or for dissolution of marriage or for declaration of nullity of marriage is pending before a District Court. In such a case the District Court has jurisdiction to award maintenance under section 619 to section 622 of the Civil Procedure Code.

In this case the District Judge has awarded maintenance under section 619 of the Civil Procedure Code. Maintenance is granted to the child, though the application for it is made by the mother. If the District Judge considered it desirable he could have ordered that the maintenance amount should be paid to some other person on behalf of the child.

The liability to pay maintenance to a child is a civil liability and the Maintenance Ordinance provides a speedy remedy for enforcing this liability-see Eina v. Eraneris [2 4 N. L. R. 4.]; Subaliya v. Kannangara [3 4 N. L. R. 121; 12 N. L. R. 203].

Unlike in India where the provisions regarding maintenance are part of the Code of Criminal Procedure, in Ceylon these provisions are embodied in a separate Ordinance. The Magistrates' Courts really exercise a civil jurisdiction when they act under the Maintenance Ordinance.

The mother in making an application under the Maintenance Ordinance acts on behalf of a child.

Whether an order for maintenance in respect of a child is made by the District Judge under section 619, Civil Procedure Code, or by the Magistrate under the Maintenance Ordinance, the real parties to such orders are the child and the father, and the matter adjudicated upon in both cases is the claim of the child for maintenance and both Courts exercise a civil jurisdiction. Hence the plea of res judicata is available to the appellant.      

In India it has been held " that a woman is not entitled to an order from a Magistrate when a decree for maintenance obtained by her in a civil Court is in force "- (see Sohoni Indian Code of Criminal Procedure, p