067-NLR-NLR-V-10-DISSAN-APPU-v.-BABAHAMI-et-al.pdf
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Present: The Hod. Sir Joseph T. Hutchinson, Chief Justice, andMr. Justice Middleton.
DISSAN APPU v. BABAHAMI at al
D.C., Matara, 3,856.
Ditorce—Connivance—Conduct conducing to adultery—Dismissal of action—Damages—Civil Procedure Codet s. 601.
Where an action for divorce brought by the husband is dismissedon the ground that the plaintiff has been guilty of connivance undersection 601 of the Civil Procedure Code, the Court has no power toaward the plaintiff damages against the co-respondent.
Bernstein v. Bernstein1 followed.
A
PPEAL from a judgment of the District Judge of Matara. Thefacts are fully set out in the judgment of the Chief Justice.
Sampayo, K.C* (with him A. St. V. Jayewardene), for the plaintiff,appellant.
H. J. C. Pereira (with him Elliott), for the second defendant,respondent.
Cur, adv. vult.
October 3, 1907. Hutchinson C.J.—
The plaintiff in this action asks that his marriage with the firstdefendant, who is his wife! may be dissolved because of her adulterywith the second defendant, and that the second defendant may beordered to pay him damages for having committed adultery with thefirst defendant.
He was married to the first defendant on August 21, 1896, beforea registrar of marriages. After the marriage they lived togetherfor a few months at Sultanagoda in the Matara District, and thenthe plaintiff went away to Batticaloa, leaving his wife with hermother. He says that there was no quarrel between them; that hewent to Batticaloa to get work; and that when he went he gaveback to her the dowry which he had received, viz.*,. two head ofcattle and Rs. 25, and that he gave her also a further Bum of aboutRs. 15. She says that they were always quarrelling, and that thatwas the reason he left her. He stayed at Batticaloa for some time,working, as he says, for one man for about a year at Rs. 15 a month,and for another man for five months; then he went to Negomboand* worked there for six months; and in May,* 1899,* he returnedto the village where his wife was living with her mother. He saysthat she refused to speak to him, and that there was a violent scene
i 63 L. J. P. D,- A A. 3.
1907.
October
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1007. between them, and that her mother and the police officer interfered.
Ootober 3* A few days afterwards he and his wife executed a deed of separation,Wwwmffwnw which is dated May 23, 1899; by this, after a recital that a numberC.J, of reasons have occurred which make it impossible for them tolive peaceably as husband and wife, they agree “ hereafter to liveseparately apart from each other, acting according to each of ourindividual wishes,'* and that neither of them shall have hereafter" any right or control or power according to law ” or any claim on theother’s property; the wife acknowledges that she has received backher dowry; and they agree “ not to go to law.”
The wife had then already committed adultery with the seconddefendant. There is evidence, which the Judge believed, that shewas about eight months advanced in pregnancy, and that she gavebirth to a child, of which the second defendant was the father, abouta month after the execution of the separation deed. The plaintiffsays that he first heard of the adultery two weeks after he returned tothe village, and that four days after the execution of the separationdeed he heard that she was living at the second .defendant’s house—that she had gone there the previous night. He says that he sawher there from the road, and the second defendant near her. TheJudge, however, thought that the fact of her pregnancy must havebeen patent to the plaintiff, and he had no doubt that the plaintifflearnt.the state of affairs from the villagers directly he came back.I think that that is a reasonable conclusion to draw from theevidence.
After the execution of the separation deed the plaintiff sent in-various petitions about this matter to the Governor and (as he says)to the Assistant Government Agent. The Judge finds, and I thinkrightly, that the first petition was sent on November 25, 1900. Thepresent action was commenced on March 8. 1906.
The defendants admitted the adultery, but they alleged that theplaintiff connived at and was accessory to the adultery and condonedit; and the first defendant also alleged that previous to the adulterythe plaintiff deserted and wilfully separated himself from herand neglected to maintain her, and also that he had been guilty ofunreasonable delay in instituting this action.
The following issues, with others which are not now material,were settled: —
Did the plaintiff connive at the adultery?
Did he wilfully separate himself from his wife before the
adultery and leave her without maintenance and support,*and did that conduct induce to the adultery ?
8. Danlages. 4*
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The District Judge found that the plaintiff was not aware of theadultery until his return in May; 1899, but that after that date hewas aware of it and connived at it. If that .finding was right the
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Court was bound by section 001 of the Civil Procedure Code to 1907.■dismiss the plaint, and the Judge accordingly dismissed the claim October 3.against the .first defendant. On the next issue the Judge found that hutohinsokthe plaintiff deliberately left his wife and gave her back her dowryas they could not live happily together; that he sent her no main-tenance ; and that bis leaving her without support conduced to theadultery. And the Judge awarded Bs. 50 damages to the plaintiffagainst the second defendant.
In my opinion the findings of fact to which I have referred werejustified by the evidence. I believe that when the plaintiff signedthe deed of separation he knew what it was; he knew that his wifehad been commiting adultery with, and that she was then withchild by, the second defendant; he knew that she was a poor woman,and that the adulterer was a man of some rank and substance ;with that knowledge he agreed with her that they should thenceforthlive apart, and that neither of them should have any claim againstthe other. He could not help knowing that the result of that agree-ment would probably be, as it was, that she would continue he!*adultery with the second defendant. He therefore connived at theadultery which took place after , that agreement; and that is theadultery which is alleged in the plaint as constituting the groundupon which the dissolution of the marriage Is prayed for.
1 agree with the Judge that, the plaintiff sent his wife no main*
tenance during his absence of upward of two years, and that he was
guilty of wilful neglect, which conduced to the adultery.
»
There remains the question which the second defendant has dulyraised, whether the Judge, being bound because of the plaintiff'sconnivance to * dismiss the claim for divorce, had power to awarddamages against the second defendant. By section 598 the husband,when he presents a plaint in which the adultery of the wife is thecause of the action, must make the adulterer a co-defendant,and may include in the plaint a claim for damages against the co-defendant. And by section 601 if the Court finds that the plaintiffhas, during the marriage, been conniving at the act or conduct whichconstitutes the ground upon which the dissolution of marriage isprayed for, “ it shall dismiss the plaint.” There is no reservationin favour of that part of the plaint which asks for damages. It* appears to me that this means that the' Court, having found thatthere was connivance, is bound to dismiss the whole plaint. Thisview is supported by the decision of the Court of Appeal in Englandin Bernstein v. Bernstein.1 That was a .decision on the. English Actof 1867, wHich is largely the foundation of chapter XMI. of ourCivil Procedure Code. Sections 27*- and 31 of the Act deal withpetitions for divorce where no damages are claimed; and section 30enacts that if the petitioner has condoned the adultery the Court
*68 £r. J. P. D <t A. 3.
1907.
October 9.
Hutchinson
C.J.
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shall dismiss the petition. Section 38 allows the huBband to claimdamages against the adulterer in a petition for divorce, or in apetition for damages only, and enacts that all the enactments thereincontained with reference to the decision of petitions shall, so far asmay be necessary, apply to the decision of petitions for damages.The Court held that where the husband had condoned the adulterythere was no power to award damages. On the other hand, in theearlier case of Long v. Long,1 where the jury had found that theco-respondent had committed adultery with the respondent, but theJudge held that the charge against the wife (who appeared to bementally weak) was not proved, Mr. Justice Butt dismissed thesuit against the wife, and gave judgment against the co-respondentfor the damages found by the jury. If that case is inconsistentwith Bernstein v, Bernstein, of course the ruling in the latter casemust prevail. That ruling is not a binding authority here, becausethe terms of the Act of 1857 are not in all respects identical withchapter XLH. of our Code; but it is satisfactory to me to find thatit is consistent with what I take to be the clear language of section601.
In my opinion, therefore, the plaintiff's appeal should be dismissed,so much of the judgment 6i the District Court ns awards damagesand costs against the second defendant should be set aside, and theplaintiff’s action should be dismissed with costs as against the firstdefendant*. I would make no order as to the costs of the seconddefendant in either Court.
Middleton J.—I entirely agree.
Plaintiff's appeal dismissed.
Second defendant's appeal allowed.
1 16 L. R. P. D. 318.,