1962 Present: Basnayake, C.J., H. N. G. Fernando, J.,

and Sinnetamby, J.

TENNE,
Appellant, and EKANAYAKE, Respondent

S. C. 442 of 1960-M. C. Matale, 6823

Maintenance-Jurisdiction-Forum in which application should be made-Maintenance Ordinance, ss. 2, 9, 15, 17-Civil, Procedure Code, s. 9.

The Court which has jurisdiction to entertain an application under the Maintenance Ordinance is the Magistrate's Court within whose limits the wife or child having the right to claim maintenance resides. The place of residence of the defendant is not material.

Application was made against the defendant for maintenance in respect of his wife and child. The complainant was the father of the defendant's wife, who was, at the time of the application, an inmate of the Mental Hospital, Angoda. The child, however, was residing at Matale with the complainant.

The defendant was residing at Dumbara, which was outside the territorial jurisdiction of the Magistrate's Court of Matale.

Held, (i) that the Magistrate's Court of Matale had jurisdiction in regard to the claim of the child.

(ii) (SINNETAMBY, J., dissenting), that the claim in regard to the mother of the child should be made in the Magistrate's Court of Colombo.

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

K. C. Kamalanathan, with M. Shanmugalingam, for Applicant-Appellant.

Y. L. M. Mansoor, for Defendant-Respondent.

Cur. adv. vult.

545

March 30, 1962. BASNAYAKE, C.J.-

This appeal first came up for hearing before my brother Sinnetamby but, as a question which appeared to him to be a question of doubt or difficulty arose for adjudication, acting under section 48 of the Courts Ordinance he reserved the question for the decision of more than one Judge of this Court, and under section 48A of that Ordinance I made order constituting a Bench of three Judges for deciding it. The question reserved is whether a Magistrate's Court within whose limits the defendant to an application for maintenance does not reside has no jurisdiction to entertain an application for maintenance.

Briefly the material facts are as follows :- On 10th November 1959 the applicant R. B. Tenne complained to the Court that the defendant V. B. Ekanayake of the Cocoa Research Station, Horticultural Office, Kundasale, who was the husband of his daughter Veera Ekanayake, refused to maintain her or his male child Keerthi Ekanayake aged three. In his evidence he stated that his daughter was since June 1959 an inmate of the Mental Hospital, Angoda, and that the child Keerthi was with him.

It would appear from the following minute made in the record that on his appearance on summons the defendant admitted that he was the husband of the applicant's daughter and the father of the child Keerthi:- " The defendant admits marriage and paternity but has cause to show. "

At the trial the defendant did not call any evidence but submitted that the Court had no jurisdiction to entertain the application as he was resident in Dumbara a place outside the territorial jurisdiction of the Magistrate's Court of Matale. It appears to be common ground that the defendant is resident at a place outside the local limits of the Magistrate's Court of Matale. The learned Magistrate upheld the objection on the ground that he was bound by the decisions of this Court, viz., Jane Nona v. Van Twest 1[(1929) 30 N. L. R. 449.] and Saraswathy v. Kandiah 2[(1948) 50 N. L. R. 22.] cited by the defendant's pleader.

Jane Nona's case holds that the Court which has jurisdiction to entertain an application under the Maintenance Ordinance is the Magistrate's Court within whose territorial jurisdiction the cause of action arises. It proceeds on the basis that as the Maintenance Ordinance itself is silent on the question of territorial jurisdiction it is permissible to resort to the Civil Procedure Code for guidance. In Saraswathy v. Kandiah (supra), while following Jane Nona v. Va