Report No. 65
20.22. Two views possible.-
Since the case law throws no light on the question which we are now investigating, the question is of first impression and had to be so approached. Now, it would appear that two views are possible on this question. On the one hand, the order passed earlier under the Guardians and Wards Act or other cognate provision would have been passed on a consideration of the state of affairs then existing. If there is a material change of circumstances by reason of the dissolution of marriage or by the grant of judicial separation, a new factual element is introduced, which at least requires consideration by the matrimonial court.
On this reasoning it could be argued that the jurisdiction of that court should be treated as wide enough so as to enable it to take into account the factual element just now referred to. On the other hand, a fresh order would mean a modification of the order of another court, and since, prima facie the section is silent on the subject, it can be argued that it does not permit of any such course. It is not necessary for us to express any opinion on the question, since in any case, the matter falls outside the scope of this Report. If and when the question comes up for consideration, several aspects may have to be borne in mind. The brief discussion in this Chapter of the legal issues will serve to indicate broadly the scope and magnitude of the problem. But, as we have already indicated, this problem is outside the scope of this Report.