Jeeris Appuhamy V. Kodituwakku

1947 Present: Soertsz S.P.J. and Canekeratne
 
J. JEERIS APPUHAMY, Appellant, and KODITUWAKKU, Respondent.
 
S. C. 37-D. C. Kandy, 180.

    Civil Procedure Code, sections 621, 622-Action for dissolution of marriage-Decree absolute-Application to increase amount of maintenance after decree absolute- Power of Court.
 
Section 622 of the Civil Procedure Code extends the jurisdiction of the Divorce Court as regards the custody, maintenance and education of minor children to applications made after decree absolute. The Court can therefore vary the provisions of the decree absolute in respect of these matters from time to time as occasion arises.
 
APPEAL from a judgment of the Additional District Judge, Kandy.  
 
H. W. Tambiah, for the defendant, appellant.
 
M. M. Kumarakulasingham, for the plaintiff, respondent.

Car adv. vult.

November 11,1947. CANEKERATNE J.-
 
This is an appeal by the defendant from an order of the Additional District Judge, Kandy, directing him to pay a sum of Rs. 65 a month for the maintenance of his son. A decree nisi was entered on April 19, 1945, dissolving the marriage between the plaintiff and her husband, the defendant, on the ground of malicious desertion. After entrusting the custody and education of the child of the marriage, Chandrasiri, about 13 years old, to the plaintiff it was further ordered by the decree that the defendant should pay a sum of Rs. 25 a month for the maintenance of the child and that this allowance should continue until further order and should be subject to variation as future circumstances may require. The formal parts of the decree are in accord with form. No. 97 in Schedule 2 to the Code of Civil Procedure (Cap. 86, C. L. E.),
 
The decree was made absolute on May 3, 1946. On June 7, 1946 the respondent made an application for having the maintenance increased to Rs. 65 a month : after. inquiry the Judge made order to that effect.
 
It was contended by appellant's Counsel that the Court had no power under section 622 of the Civil Procedure Code to make and order varying the amount of maintenance fixed by the decree absolute, the argument being that there was a Casus Omissus and that a Court in entering a decree dissolving the marriage should fix the period for which maintenance at a specified rate was payable. Ho argued that if a child required a greater sum than that fixed by the Court for maintenance application should be made in a Magistrate's Court under the Maintenance Ordinance (Cap. 76, C. L. E.) ; to the counter argument advanced by respondent's Counsel, that the maintenance proceedings can be taken only of there was a default on the part of the father and that there would be no default so long as the sum fixed by the Matrimonial Court was paid, there was hardly any satisfactory reply given by Counsel for the appellant. The latter also felt difficulty in suggesting any sensible solution as regards

the effect of an order for custody except the unpractical one of applying for a writ of habeas corpus ; for this writ may no be available as a general rule after the age of sixteen years. He also referred to the provisions of the present English law, i.e., those under the Act of 1925 : hard by any aid can be furnished by these provisions.
 
Chapter 42 of the Code contains the main statutory provisions as regards matrimonial proceedings, as dissolution of marriage, nullity of marriage, judicial separation and incidental relief. These provisions embody substantially those contained in the Matrimonial Causes Act of 1857 as amended by the later Acts. The question at issued in this case depends on the correct interpretation of section? 621 and 622 of the Code. The language used in section 35 of the Matrimonial Causes Act of 1857 (20 and 21 Vict. C. 85) is repeated, with some alterations not material to this case, in section 621 of the Code. Section 621 gives power to the court to make such prov

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