1943 Present : Keuneman and Jayetileke JJ.

FERNANDO, Appellant, and AMARASENA,
Respondent

685-M. C., Colombo, 17,227

Maintenance-Application for order under the Maintenance Ordinance-Decree of alimony in the District Court-No bar to order for maintenance-Maintenance Ordinance (Cap. 76) s. 2.

The jurisdiction of a Magistrate to grant an order for maintenance of a child under section 2 of the Maintenance Ordinance is not ousted by a decree for alimony passed by the District Court if favour of the applicant and the child in an action for divorce brought by the applicant against the respondent.

Peiris v. Peiris (45 N. L. R. 18) followed.

THIS case was referred to a Bench of two Judges under section 38 of the Courts Ordinance in view of two divergent decisions of the Supreme Court.

L. A. Rajapakse (with him H. Deheragoda), for the applicant, appellant.-The question for consideration is whether an order make by the District Court, in the exercise of its matrimonial jurisdiction, for the maintenance of the children of a marriage operates as a bar to an application for their maintenance under the Maintenance Ordinance (Cap. 76). The petitioner in this case is asking for maintenance in respect of her child, aged 2 years. In the earlier divorce case it was ordered by the District Court that the respondent should pay Rs. 15 as alimony and maintenance for the wife and child. Of this sum not even a cent has been paid.

There are two conflicting decisions- Aryanayagam v. Thangamma [1 (1939) 41 N. L. R. 169.] and Peiris v. Peiris [2 (1940) 45 N. L. R. 18.]. In Aryanayagam v. Thangamma certain important Indian decisions were not considered. It is submitted that the jurisdiction of the Magistrate under section 2 of the Maintenance Ordinance is not ousted by a decree of a civil Court so long as the respondent neglects or refuses to maintain the child. The important point is not that there is a paper decree for maintenance but whether there is a neglect or refusal to maintain. Nor can it be contended that the decree in the matrimonial suit operates as res judicata. It is only by accident that the mother of the child is the petitioner in the present case; any other person could have made himself the petitioner on behalf of the child. Moreover the cause of action in the divorce suit was the malicious desertion of the spouse, and the maintenance awarded to the child was only an incidental relief. The real question in the present case is one of jurisdiction. See Peiris v. Peiris (supra); In re Mohamed Ali Mithabhai [3 A. I. R. (1930) Bom. 144.]; Kent v. Kent [4 A. I. R. (1926) Mad. 59.]; In re Taralakshmi Manuprasad [5 A. I. R. (1938) Bom. 499.]; Saraswathi Debi v. Narayan Das-Chatterjee [6 A. I. R. (1932) Cal. 698.].

Nihal Gunasekera, for the respondent.-The question of res judicata does arise in this case. The order of the District Court awarding maintenance is the order of a Court of competent jurisdiction and is a bar to

separate proceedings on the same subject-matter. Aryanayagam v. Thangamma (supra) is applicable to the facts of this case. The more recent of the Indian decisions purport to follow Kent v. Kent (supra), but in the latter case the earlier order regarding maintenance had been made in England and not in India, and it is difficult to understand the ratio decidendi. Saraswathi Debi v. Narayan Das Chatterjee (supra) can be cited in respondent's favour. See also In re Chandulal Ranchhod [1 A. I. R. (1919) Bom. 140].

Even if the Magistrate's Court has concurrent jurisdiction with the District Court the principle of election would apply, and, once one of two concurrent Courts is selected by a party he must exhaust the possibilities of the remedy obtained there.

L. A. Rajapakse.-The argument that there cannot be two concurrent enforceable orders for maintenance was put forward in Birmingham Union v. Timmins [2 L. R. (1918) 2 K. B. 189.] but was not acce