1940 Present : Soertsz J.

PEIRIS, Appellant, and PEIRIS, Respondent

249-M. C. Colombo, 16,453

Maintenance-Application for maintenance under the Ordinance-Order for alimony in the district Court-Applications not barred.

An application for maintenance under the Maintenance Ordinance is not barred by an order for alimony made in favour of the applicant and her child in the District Court in which the applicant had sued the defendant for judicial separation and obtained it.

APPEAL from an order of the Magistrate of Colombo.

N. Nadarajah, K. C. (with him J. A. T. Perera), for applicant, appellant.

E. B. Wikremanayake for defendant, respondent.

Cur. adv. vult.

December 20, 1940, SOERTZS J.-

This was an application by the wife of the defendant for a maintenance allowance for herself and for her child by the defendant.

This application was opposed on the ground that it was barred by an order for alimony made in favour of the applicant and of the child in case No. 86 D. C., Colombo, in which the applicant had sued that defendant for a decree of judicial separation and obtained it. She was given the custody of the child. That decree was affirmed in appeal.

After the decree for judicial separation had been entered, the defendant went into the Insolvency Court, and was adjudicated an insolvent on March 3, 1938. On December 20, 1938, the District Judge refused a

certificate of conformity and said that he had "every reason to believe that the insolvent field this action in order to avoid having to pay his wife the alimony she claims and the amount for which she obtained a decree against the insolvent". The adjudication is still in force. In this state of things, the law must surely stand compromised if it were helpless against the unscrupulous ingenuity of the defendant. The learned Magistrate thought that he was bound by the judgment in the case of Aranayagam v. Thangamma [1 41 N.L.R. 169], and that he had no alternative but to dismiss the application.

In the case referred to, my brother de Kretser following what was said in a note in Sohoni's commentary at page 1034 on the authority of a case cited as reported in 2 Weir 615-the report itself not being available-held that a woman was not entitled to an order from a Magistrate when a decree for maintenance obtained by her in a civil Court is in force.

The question, then, is whether the decree for alimony obtained in the suit for judicial separation can be said to be in force in the circumstances of this case. The facts upon which de Kretster J. based his judgment are not to be found in the judgment. They, probably, were entirely different from the facts in this case. In this case, there is the fact that the defendant himself, soon after the decree for alimony was made, got himself adjudicated an insolvent. In the Bombay case to which de Kretster J. makes anonymous reference, Patkar J. with whom Wild J. concurred said: "In the present case, though there was a decree for maintenance in favour of the wife, the decree in fact could not be executed on account of the insolvency proceedings initiated by the husband . . . . though there is a decree of the civil Court in existence, it is merely a paper decree . . . . a mere decree of civil Court awarding maintenance is not equivalent to maintaining the wife. Under these circumstances we think that the Magistrate has jurisdiction . . . . . to pass an order for maintenance"-In re Mohamed Ali Mithabhai [2 A.I.R. (1930) Bom. p. 144]. Reference is made in the course of the judgment to the case in 2 Weir noticed by de Kretser J.

There is another Indian case which deals with the same point, namely, Kent v. Kent [3 A.I.R. (1926) Mad. 59.]. In the course of his order Devadoos J. said : "The third contention is that there is an order of the Probate Division and Admiralty Division of the High Court in England whereby the petitioner is directed to pay his wife so much alimony pe