017-NLR-NLR-V-18-GOONEWARDENE-v.-ABEYEWICKREME.pdf
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Present : Pereira -J.
GOONEWARDENE t?. ABEYEWTCKREME.
-P. C® Guile. 6,5^-
J/amtettauec—Reparation o/ fctubami and 101/0 by tntifiiai consent— Wife/may claim maintenance $/ she undertakes to return to husband-
Where a husband and wife agree to live separately by mutualconsent, the wife may claim maintenance from her husband if sheundertakes to return to her husband and live with him as hiswife.
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N this case the applicant claimed maintenance from her husband.
She had lived away from him for twenty years. At the date of
the application .the respondent had a mistress. The respondentresisted the application on the ground that he had separated fromthe applicant by mutual agreement many years before.
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Bartholomeusz, for the applicant, appellant.—There was, as a
matter of fact, no separation by mutual agreement. But even ifthere was, such an agreement would not be a bar to the presentapplication, if the applicant is willing to go back to her husband.Voet24, 2, 19, 80.
• Drieberg, for defendant, respondent, relied on b> N. L. A’. 191.
.Cur. adv. vult.
June 15, 1914. Pereira J.—
1 think that the order made by the Magistrate is premature. Thecase cited by him from the Leader Law Reports, which is alsoreported at- page 191 of Volume XV. of the New Law Reports, appliesonly where the parties remain of one mind as to separation and thewife applies for maintenance while she lives separated from herhusband. An extrajudicial separation, that is, a separation byvoluntary agreement from bed and board, is allowed under theRoman-Dutch law; but the information given to us by the textwriters is very scanty. Voet refers to it in book 24 of his Commen-tary (84, 2, 19, 20). Its continuance depends upon the continuedconsent of the parties. So far as I can see there is nothing toprevent either party from terminating it, provided he or she submitsto the complete reversion to the statue quo ante. It appears to havebeen decided in South Africa that the agreement was not- bindingupon the spouses, unless circumstances existed at the date of (heseparation which would have justified the Court in granting a decreeof separation (see Maasdorp Institutes, voi. L, p. 178).
1914.
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1914.
Pbbsia<a J.
Qoone•wardene tAbeye-wickreme
In the present case, if the applicant undertake to return to thedefendant and live with him as his wife, but the defendant refuseto take her back or to have a suitable house in readiness for her, orbe found to be guilty of such conduct as renders it intolerable forhis wife to live with him, I think that .the applicant would be entitledJto an order in her favour.
I set aside the order appealed from and remit the case to the Courtbelow for further hearing and adjudication.
Sent back..
(The second appeal in this case is reported in 17 N.R. 450.)