042-NLR-NLR-V-77-G.-S.-WIJEWEERA-Appellant-and-T.-M.-D.-NANAYAKKARA-Respondent.pdf
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Wijeweera v. Nanayakkara
1971 Present: H. N. G. Fernando, C.J., and Alles, J.
S. WIJEWEERA, Appellant, and T. M. D. NANAYAKKARA,
Respondent
S. C. 12/68 (F)—D. C. Colombo, 65251 /M
Action for breach of promise of marriage—Requirement of promise inwriting—Quantum of evidence—Damages.
The writing required to found an action for breach of promise ofmarriage may not only contain an express promise to marry butalso confirm a previous oral promise to marry, i.e., admit themaking of the promise and evince continuing willingness to bebound by it.
A promise by A to marry B, after a period of intimacy, cannotavail B much in claiming that she has suffered substantial damagesin consequence of the breach of that promise.
JvPPEAL from a judgment of the District Court, Colombo.
W. Jayewardene, Q.C., with K. Jayasekera and MarkFernando, for the plaintiff-appellant.
C. Ranganathan, Q.C., with W. D. Gunasekera, for thedefendant-respondent.
Cur. adv. vult.
H. N. G. FERNANDO, C.J.—Wijeweera v. Nanayakkara209-
May 30, 1971. H. N. G. Fernando, C.J.—
In this action for breach of promise of marriage, the learnedDistrict Judge has held that the plaintiff failed to prove eitherthat there was a written promise to marry or that there hadbeen confirmation in writing of a previous oral promise ofmarriage. In reaching his conclusion, the learned Judge correctlydirected his attention to the judgment of the Privy Council inUdalagama v. Boange1 (61. N. L. R. 25); but he reached theconclusion that the test laid down in that judgment was notsatisfied in the instant case. That test was stated in the judgmentas follows : —
“The writing required to satisfy the Ordinance mustcontain an express promise to marry or confirm a previousoral promise to marry, i.e., admit the making of the promiseand evince continuing willingness to be bound by it. ”
Their Lordships did not in their judgment pronounce thatnothing short of a written statement “ I promise to marry youor “ I will marry you ”, can constitute an express promise ofmarriage. Indeed, the letters re-produced in the judgment,although they did contain clear expressions of endearment andaffection, included no hint of any promise of marriage. What wasemphasised in the judgment was only that oral evidence is notadmissible to establish that some written statement of adefendant was intended to be a promise of marriage or aconfirmation of a previous such promise made orally.
In the later case of Mutukuda v. Sumanawathie3 (65 N. L. R.205), there as no statement by the defendant in terms promisingto marry the plaintiff. There was instead a statement communi-cated to the plaintiff’s father, that on the day named in thestatement, the defendant will perform the customary ceremoniesof marriage with the plaintiff. That statement was construed bythis Court to constitute a promise of marriage.
In the instant case there was no written statement identicalwith that which was made by the defendant in the case justcited. But the defendant in this case did in his letter P9 commithimself as follows : —
“ It is the real fact that I am not going to take the handof another except you even if any one tells me ”.
“ If any one says it will never happened, treat it as a jokeor words of mad people ”.
1 (1959) 61 N. L. B. 25.
(1962) 65 N. L. B. 205
210
H. N. G. FERNANDO, C.J.—Wijeweera v. Nanayakkara
“ Our firm love cannot be broken by anybody. The love wehad for two and a half years, there remains only two or threemonths more. Thereafter is it not that we get married andface the world without fear and shame. Sudu, then it is apride to you. When we travel in a Motor Car, keep arefrigerator, keep a set of furniture and live on carpet floor,the neighbourers will curse us. Then Sudu, I told you to havelittle patience. It is very near for our marriage. ”
An issue was framed by the plaintiff’s Counsel in this casewhich raised the question whether the defendant’s lettersconstitued confirmation in writing of a prior oral promise ofmarriage, and Counsel for the defendant in appeal perhapsrightly contended that the issue was correctly answered againstthe plaintiff.
It seems to me that the plaintiff’s Counsel impaired his caseby raising that issue. But the real question for determinationwas whether, on a proper construction of the passages which Ihave cited from the defendant’s letter P9, he did in that letterassure the plaintiff that he will marry her. What else, in thecontext of P9, did the defendant mean when he said “it is verynear for our marriage ” ?
Without difficulty, and without reference to the oral evidencein this case, it is clear that the defendant did in his letter P9state in writing that he will in the near future marry the plaintiffand I hold that he thus made a promise of marriage in writing.
The plaintiff claimed damages in a sum of Rs. 20,000. But shewas a married woman, whose prior marriage had been dissolved,and she became the defendant’s mistress thereafter. Her evidencethat she became defendant’s mistress only because of an oralpromise of marriage is scarcely credible. Thus my finding thatthe defendant did promise to marry her, after a period ofintimacy, cannot avail her much in regard to her claim that shehas suffered substantial damages in consequence of the breach ofthat promise.
In these circumstances, I allow the appeal. But decree willbe entered for the plaintiff only in the sum of Rs. 1,000, and forcosts of action and appeal in that class.
Alles, J.—I agree.
Appeal allowed.