065-NLR-NLR-V-12-CAREY-v.-KALAI-et-al.pdf
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Preamt. Mr. Justice Wood Benton.1909.
July 6.
CAREY v. KALAI et <d.~~
P. C., Kandy, 18,987.
Marital compulsion—Defence to a criminal prosecution—Applicabilityto Ceylon—Statutory offence—Ceylon Penal Code, a. 87.
The applicability of the doctrine of marital compulsion, as adefence to a criminal prosecution under the-Ceylon Penal Code,discussed.
A
PPEAL by the accused from a conviction under section 2 ofOrdinance No. 16 of 1905 by the Police Magistrate (T. B.
Bussell, Esq.). The facts material to the report sufficiently appearin the judgment.
A. Jayewardene, for the appellants.
Cur. adv. wdt.
July 6, 1909. Wood Rbnton J.—
In this case the appellants, who are husband and wife, have beenconvicted under section 2 of Ordinance No. 16 of 1905 of havingdeserted from Vedahela estate from the employment of the com-plainant without leave or reasonable cause. It is clear on theevidence, so far as the first accused, the husband, is concerned, thathe has committed the offence charged against him, and practicallythe only point which Mr. Jayewardene has argued before me insupport of the appeal is that the second accused, being the wife of thefirst accused, should be presumed to have left under the compulsionof her husband, and, in the absence of any evidence showing thatshe took an independent part in the desertion, should Be acquittedon the present charge. There is nothing in the evidence to showthat, in fact, the husband and wife actually deserted together, forI cannot regard what the head kangany said on that point as astatement of anything he had himself seen, still less that the wifeacted in any way under marital compulsion, and I was asked byMr. Jayewardene to infer, from the mere fact of the existence betweenthese parties of the relationship of husband and wife, that the secondaccused acted under her husband’s compulsion.
It appears to me to be a grave question whether this doctrine ofmarital compulsion is in force in Ceylon at all, in view of the factthat section 87 of the Penal Code expressly defines the circumstancesunder which the defence of compulsion is entitled to legal recognitionfor the purposes of that enactment, and is significantly silent as tothe doctrine of the coercion by a husband of his wife. In this con-nection I should, perhaps, mention that Mayne, in his treatise onKVol. XII.9
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1909. The Criminal Law of India (section 131), states that the EnglishJutyd.doctrine of marital compulsion finds no place in the Penal Code of
WoodIndia; and also that this very question seems to have come before
Renton J. Browne J. in the case of Justinahamy v. Bastian,1 to which Mr.
Tambyah, as amicus curiae, has kindly called my attention, and tohave been decided, under section 87 of our Penal Code, in the verysense which May ne had adopted in construing the Penal Code of India.The only authority on the other side is the case of Bomel v. Segadu,2in which Lawrie J. said that, as a general rule, it is inexpedient topunish a woman for the acts committed by her in presence of andon the instigation of her husband. If I were compelled to choosebetween these conflicting authorities, I should certainly prefer theopinion of Mr. Mayne and Justice Browne. But even if the doc-trine of marital compulsion does apply in Ceylon, it is a doctrinewhich, according to the decision of the Privy Council in the case ofBrown v. Attorney-General for New Zealand,3 can find no applicationwhere the only evidence before the Court is the existence cf therelationship of husband and wife between the accused. This case,which is binding upon me independently as a decision of the PrivyCouncil, has been followed in England in Queen v. Baines et al.*
If the English cases bearing on the doctrine of marital compulsionare referred to, it will appear that great diversity of opinion hasprevailed among Judges from early times as to the class of offencesto which it applies, and the circumstances under which it could beinvoked. There are decisions in which even the presence of thehusband has been held not to excuse the wife; but there is no casein which the doctrine has been introduced on the mere strength ofevidence showing that, the two accused persons are so related. Inan old case (see Regina v. Cruse6) Justice Burrough told the juryt hat when the wife was in company with the husband, the lawalways presumed her to be under his control, although the jury, asmarried men, knew that the contrary was often the fact. So faras I am aware, the doctrine of marital compulsion has never beenput higher than this. It would open a wide vista of immunity toservants under the Labour Ordinance if I were to hold that thatdoctrine applied to cases like the present, in which the charge is oneof statutory contravention by each of the accused parties of anindependent contract.
The appeal is dismissed.
Appeal dismissed.
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1 (1898) 6 Tambyah’s Reports 105.* (1898) Appeal Gases 234-
* (1897) 6 Tambyah's Reports 105.* (1900) 69 L. J. Q. B. 681.
• (1838) 8C.&P. 555.