1964 Present: Basnayake, C.J., Abeyesundere, J.,
and Sirimane, J.

P. H. BABY NONA, Appellant, and R. KAHINGALA,
Respondent

S. C. 225/61-M. C. Galle, 7917

Maintenance-Illegitimate child-Application by mother for maintenance-Procedure- Commencement of inquiry-Requirement of examination of applicant on oath-Condition precedent-Effect of non-compliance-Maintenance Ordinance (Cap. 91), as. 2, 8, 9, 13-17-Courts Ordinance, s. 81-Criminal Procedure Code, a. 425.

         In an application made under section 13 of the Maintenance Ordinance by the mother of an illegitimate child for maintenance of the child-

Held, (SIRIMANE, J., dissenting), (i) that compliance with the requirement of section 14 of the Maintenance Ordinance that the Magistrate shall commence the inquiry by examining the applicant on oath or affirmation and recording such examination is a condition precedent to an inquiry under the Ordinance. The condition cannot be waived by consent of parties.

             (ii) that non-compliance with section 14 renders the subsequent proceedings null and void.

           (iii) that the applicant was not barred from questioning in appeal the validity of the proceedings before the Magistrate even though no objection was taken at the inquiry.

APPEAL from a judgment of the Magistrate's Court, Galle.  This appeal was referred by Sansoni, J., to a Bench of more than one Judge in the following terms :-

    " This is an appeal by an applicant from an order made by the learned Magistrate on 29th October, 1960, dismissing her application for maintenance for her illegitimate child, whose father she alleged was the Defendant.

    " The application was made to Court on 31st January, 1959, and on that day the Magistrate ordered summons on the Defendant, but no evidence on oath or affirmation was given by the applicant before that order was made as required by Section 14 of the Maintenance Ordinance. The objection now taken in appeal on behalf of the applicant is that the proceedings are invalid by reason of the Magistrate's failure to comply with the provisions of that section. For the Defendant, on the other hand, it has been urged that the applicant is not entitled at this stage to benefit from any such omission to comply with this statutory requirement.

"As the question is of some importance and turns on the wider issue of jurisdiction, I think I ought to indicate my views briefly. There can be no doubt that applications under the Maintenance Ordinance must be

made to the Magistrate, and there can also be no doubt that a Magistrate's Court is the only Court that has jurisdiction to entertain such applications. Therefore, I think it is correct to say that a Magistrate's Court has inherent jurisdiction over the subject matter of an application for maintenance; but Section 14 lays down the procedure to be followed when the Magistrate is asked to exercise that jurisdiction. A case such as this is quite different from a case where there is a total want of jurisdiction in the Court to entertain the particular kind of action, but nevertheless it acts as though it had jurisdiction by reason of the fact that parties to the particular proceedings never raised the question of jurisdiction. In the former type of case, the Magistrate exercises jurisdiction and his orders will be valid and will bind the parties if they do not take prompt objection to any defects of procedure. In the latter type of case, all orders made are incurably void.

"The distinction between the two classes of cases is so well-established that it is hardly necessary to cite authority, but I think I might refer to an old decision of the Privy Council which seems to have a direct bearing on the present case. I refer to Ledgard v. Bull (1886) 9 Allahabad 191 (P. C.). In the course of his judgment in that case, Lord Watson said this ' When the Judge has no inherent jurisdiction over the subject ma