1953 Present: Swan J.

D. SIMON APPU, Appellant, and N. H. SOMAWATHIE,
Respondent

S. C. 889-M. C. Walasmulla, 12,676

Maintenance-Order of court in favour of wife-Subsequent covenant in a deed of separation-Effect thereof on maintenance suit-Maintenance Ordinance, ss. 2, 5
.
Where a married woman obtains an order for maintenance against her husband, a subsequent deed of separation between them puts an end, in effect, to the wife's rights and the husband's liability under the order. In such a case, the husband would be entitled to claim a cancellation of the order under section 5 of the Maintenance Ordinance.
Parupathipillai v. Arumugam (1944) 46 N. L. R. 35, not followed.

APPEAL from a judgment of the Magistrate's Court, Walasmulla.

H. W. Jayewardene, with P. Ranasinghe, for the defendant appellant

Ivor Misso, with B. E. de Silva, for the applicant respondent.

Cur. adv. vult.

December 7, 1953. SWAN J.-

In this case the applicant-respondent obtained an order for maintenance against her husband the defendant-appellant. The application was made in October, 1940. The defendant appearing on summons said that he was willing to take the applicant to his house in Polhenagedera. The applicant was willing to go with the defendant there, but apparently they could not live happily together. On 6.10.41 the applicant complained that the defendant's mother assaulted her and drove her out. On the 5th of January, 1942, after inquiry, the learned Magistrate ordered the defendant to pay the applicant maintenance at Rs. 3 .50 per month as from the 1st February, 1942. On the 27th May, 1942, the applicant moved for a distress warrant for Rs. 14 being maintenance for four months. There being no property available for seizure warrant was issued for the arrest of the defendant. On 20.9.42 an open warrant was issued, but no steps were taken thereon. On 25.2. 52 the applicant moved for a notice on the defendant who, she said, was at the time residing at Kirinda in Matara. As the defendant could not be found the court issued a warrant on him. This too could not be executed and on 6.12. 52 the court ordered an open warrant to issue. On 18.12.52 the defendant surrendered to court and was ordered to give bail to appear on 16.1. 53. On that day he produced a deed of separation entered into between himself and the applicant bearing No. 28760 and dated 23rd November, 1945 (marked Dl). It was contended at the inquiry that the deed of separation terminated the defendant's liability to pay maintenance as ordered by the court. After inquiry the learned Magistrate held on the authority of Parupathipillai v. Kandiah Arumugam [1(1944) 46 N.L.R. 35.] that the agreement was not binding on the applicant. Giving the defendant credit for the sum of Rs. 100 paid under Dl he ordered distress warrant to issue for the balance due, namely Rs. 362.

In the case referred to above Jayetileke J. held that an agreement whereby an applicant who had an order of maintenance in her favour and to whom a large amount was due as arrears accepted a lump sum and waived all future claims for maintenance was contrary to public policy and should be set aside. The order was made of consent on 18.11.1937 that the defendant should pay maintenance at Rs. 6 per mensem. This was subsequently increased to Rs. 8. On 15. 4.1943 the applicant moved for and obtained a distress warrant for Rs. 40 being arrears for 5 months. On 14.5.43 the parties appeared in court and the learned Magistrate made the following entry in the record :-

" Distress warrant twice returned by Fiscal unexecuted as respondent is not possessed of any movable property. Demand made of him was not complied with. The respondent pays Rs. 200 in court. The applicant receives same waiving all future claims for maintenance against the respondent. The applicant signs the record. "

It may appear to have been an unfair bargain but in my opinion it put an end, in