Asilin Nona V. Peter Perera

1945 Present: Keuneman and Jayetileke JJ.

ASILIN NONA, Appellant, and PETER PERERA, Respondent.

65-D. C. (Inty.) Colombo, 655.

Divorce-Order of court to pay alimony pendente lite-Non-compliance with order-Power of court to stay proceedings-Civil Procedure Code, s. 839.

Non-compliance with an order of court in divorce proceedings to pay alimony pendente lite amounts to contempt of court. In such a case the court may in its discretion stay proceedings until the alimony due is paid.

APPEAL from an order of the District Judge of Colombo.

H. V. Perera, K.C. (with him P. Malalgoda), for the 1st defendant, appellant.-The plaintiff was ordered to pay Rs. 20 per mensem as alimony pendente lite to the 1st defendant. He has refused to comply

with the order although he is able to pay. The question for consideration is whether the District Court has power to stay proceedings until the alimony is paid. The District Judge has held that he has no such power under the Civil Procedure Code.

[JAYETILEKE J.-Is this not a case in which steps should have been taken under section 4 of the Civil Procedure Code?]

The inherent power of the court referred to in section 839 of the Civil Procedure Code can be invoked in a case like this-Ramen Chettiar v. Vyraven Chettiar1; Selvadurai v. Rajah et al2; Mohamed v. Annamalai Chettiar et al 3. It has been held in India that when an adjournment of a case is granted on condition of prepayment of costs the order should not be allowed to be flouted-East India Railway Company v. Jit Mal Kalloo Mal 4 In spite of the absence of any provision in the Civil Procedure Code the rule of English practice that in a divorce case the husband' may be ordered to pay into court his wife's expenses for contest has been adopted in Ceylon.-Abeyagoonesekera v....Abeyagoonesekera 5;

Silva v. Silva 6 Alimony is even more important than the costs of suit;

and the practice in England, India and South Africa of enforcing, whenever necessary, by stay of proceedings, the payment of all alimony due may likewise be adopted-Leavis v. Leavis 7; P. V. P. and T. S; Chappell v. Chappell 9; Berry v. Berry 10; Yaqub Masih v. Christina Masih 11.

M. M. Kumarakulasingham for the plaintiff, respondent.-The enactment which governs procedure in matrimonial actions is section 596 of the Civil Procedure Code. There is no provision for stay of proceedings for non-payment of alimony. It cannot be said that the wife has no remedy in law for enforcing the payment of alimony. In the present case, the 1st defendant has already a writ in her hands. She can also seek relief under the provisions of the Maintenance Ordinance-Fernando v. Amarasena 12. Where a party has another remedy open a court will not act under section 839 of the Civil Procedure Code-Paulusz v. Perera 13; Chitaley and Rao's Commentary on the Indian Civil Procedure Code (2nd ed.) P.1036.

Cur. adv. vult.

February 23, 1945. KEUNEMAN J.-

The plaintiff brought this action for divorce against the 1st defendant on the ground of malicious desertion and adultery with the 2nd defendant. The 1st defendant denied the allegation made and counterclaimed for a divorce against the plaintiff on the ground of malicious desertion and adultery.

"On March 24, 1943, the District Judge ordered plaintiff to pay the 1st defendant alimony pendente lite at the of Rs. 20 per mensum and also Rs. 125 as expenses of litigation.

1(1940) 41 N. L. R. 371                                            7 L. R. 1921 p. 299.
2(1940) 41 N. L. R. 423.                                           8 (1910) 26 T. L.R. 607.
3 (1932) 34 N. L. R. 321.                                          9 (1938) 4 A. E. R. 814.
4 A. I, R. 1925 All. 280.                                           10 Vol. 27 Empire Digest 443.
5 (1909) 12 N.L.R. 95.                                              11 A. I. R. 1941 All. 93.
6 (1905) 8 N. L. R. 280.                              

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