073-NLR-NLR-V-57-K.-A.-CHANDRASENA-Appellant-and-I.-KARUNAWATHIE-Respondent.pdf
1955Present: K. D. de Silva, J., and Sansoni, J.
K.A. CHAXDRASEXA, Appellant, and I.KARUNAWATHIE,Rcsjjondcnt
.S'. C. 370—D. C. Colombo, 2-5,633
Breach of promise of inarriaye—Plea that defendant aas already married, at time ofpromise—Validity of such plea.
Under the Roman Dutch I.nn- an action for damages for breach of i.ioiniseof marriage cannot be founded on a promise made by a man who was "alreadymarried at the time lie made such promise.
j^LPPEAL. from a judgment of the District Court, Colombo.
//. IK. Jayeicardenc, Q.C., with P. Panasinghe, for the defendant-
appellant.
S. IK. Jayasuriya, with A. Xagcndra, for the plaintiff-respondent.
Cur. aifr. viilt.
December 13, 1955. Saxsoxi, J.—
The plaintiff appearing by her father as her next friend sued thedefendant on two causes of action. On the first cause of action sheclaimed a sum of Rs. 1,000 as damages for breach of promise of marriage ;on the second cause, of action she claimed a sum of Rs. 1,500 as damagesfor seduction. The defendant- pleaded that he was a minor at the timelie became acquainted with the plaintiff. He denied that he everpromised to marry her or that he was liable to pay her damages on eithercause of action.
The learned District Judge after trial held in favour of the plaintiff onboth causes of action, and gave her judgment as praj-ed for with costs.
In appeal, the defendant’s Counsel did not seriously contest the learnedJudgo’s findings on the second cause of action. There was ample materialon which the learned Judge could have found against the defendant, andthe award of damages on this cause of action must stand.
On the first cause of action however it was submitted oil the defendant’sbehalf that the written promises of marriageon which the plaintiff reliedwere all, except the last, made while he was a minor ; and the last writtenpromise, which was dated 20th July 1951, was made after he attainedmajority but when he was a married man, for ho had got married toanother woman on 31st May 1951. It is not disputed that all the promiseswhich the defendant made while he was a minor are not actionable. Asregards the last one, it was contended that it was invalid because at thetime he made that promise he was a married man.
This legal objection was not taken at the trial but it seems to me to bea point of law which is a point of law and nothing else, and can thereforebe raised for the first time in appeal. Xo disputed question of fact canarise in the circumstances of this case. The defendant’s Counsel reliedon Vifjoenv. Vitjoen1 where Sutton J. held that an action for breach ofpromise cannot be founded on a promise made by a man – who wasalready married. The reason is that as marriage was not possible betweenthe parties, an action cannot therefore be based on the contract to marry.The following passage from a monograph on Breach of Promise andSeduction in South African Laic ” by Mr. Justice Van den Heever, aJudge of the Appellate Division of the Supreme Court of South Africa,is to the same effect : “ Since a subsisting marriage is an absoluteimpediment to marriage, a married person cannot contract a validengagement even if the agreement contemplates fulfilment only afterthe impediment has ceased to exist.”
It would, however, have been different if the action had been broughton the ground of the deceit which the defendant practised on the plaintiff,and the consequent injuria suffered b3r her. Such an action was heldto lie in the judgment already cited. See also Wessel’s Laio of Contractin South Africa, 2nd edition, Vol. J, S.458. The English law on this pointis different, for it was held in Shaw v. Shaw2 that an action for damagesfor breach of promise of marriage brought by a woman against a manwho eras married at the time he made such promise was maintainable,unless she knew that he was already married. In the latter event thecontract would be void as being contrary to public policy.
I think we should follow the Roman Dutch Law on this matter ancl inthat view the plaintiff’s claim on the first cause of auction must fail. Iwould therefore vary the judgment- under appeal by reducing the damagesawarded to a sum of Rs. 1,500. I would, however, award the plaintiff hercosts in both Courts.
de Silva, J.—I agree.
Judgment varied. ■
(1944) C. P. D. 137.
*’ {1954) S TV. '£/. R.'265i