Mustafa, J.A. delivered the following judgment of the court: G
The respondent in this appeal had filed a petition for dissolution of her marriage with the appellant and for other reliefs. After the petition had been filed she filed a chamber application supported by H an affidavit seeking custody of the children of the marriage and maintenance pendente lite for herself and the children.
The application was opposed by the appellant, who filed an affidavit in reply. The application came before the High Court (Mnzavas, J.K.). Mr. Lakha, who has appeared for the appellant I
A before us also appeared for him at that interlocutory application. He raised a preliminary objection, submitting that as there was no allegation of any emergency situation necessitating an interim order for custody, no order for custody could lie as it was an issue to be decided at the B hearing of the petition. As regards the issue of maintenance he submitted that there was no material before the Court for it to make decision on that matter. He asked for the dismissal of the application.
Mr. Kesaria for the appellant submitted, as he has also done before us, that the court was C empowered by certain of the provisions of the Law of Marriage Act, 1971, to deal with the issues of custody and maintenance in terms of the application filed by the wife.
In his ruling the trial judge held that he could see no exceptional circumstances to warrant a court making an interim order of custody. However, he held that the respondent should pay the wife and D the child who is in her custody shs. 1,200/= per month pending determination of the petition.
Mr. Lakha has attacked that ruling. He submitted that the trial judge should have confined his ruling to the preliminary objection he had raised, and should not have dealt with the merits of the E application at that stage. He complained that his client had in fact been condemned unheard. In our view the judge should have either upheld or rejected the preliminary objection, and if he rejected it, then it was then for the parties to argue the application on the merits. In that event either party F would have had the opportunity of presenting facts and evidence, if any, before the court for it to make a decision.
We agree with Mr. Kesaria that the trial judge was empowered to make an interim order for maintenance, but he should do so only after hearing the parties. Here the argument before him was G on the preliminary objection raised by Mr. Lakha as to the maintainability of the application. He should have confined his ruling to that issue at that stage. However, he went further, and decided the issue of maintenance without giving the appellant an opportunity of presenting his arguments H and evidence on the matter in controversy. That is clearly in error.
In the circumstances we allow the appeal and set aside the interim order for maintenance. We make no order as to costs.
I Appeal allowed.