DE SILVE v. DE SILVA et al

055-NLR-NLR-V-27-DE-SILVE-v.-DE-SILVA-et-al.pdf


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Present: Schneider and Dalton JJ.
DE SILVA v. DE SILVA et al.
53 and 53a—D. C. Colombo, 10,859.
Divorce—Forfeiture of property of the offending spouse—Rowan-Dutch
Law—Measure of damages—Objections to decree—-Authority
of proctor—Civil Procedure Code, ss. 637, 618, and 772.
The forfeiture of property of an adulterous spouse contemplatedby the Roman-Dutch Law has reference only to the benefitsderived by him or her under the marriage, and does not extendto the separate property of the offending spouse.
Under our Code, the Court has power, on entering a decree for thedissolution of a marriage, to make an order charging the propertyof the offending wife for the benefit of the husband.
In an action for divorce brought by a husband, the nature ofdamages awarded against a co-respondent is compensatory, notpunitive.
The measure of damage is based upon two considerations—*■
(а)The actual value of the wife to the husband ;
(б)The proper compensation to him for the injury to his feelings,the blow to his honour, and the hurt to his matrimonial and familylife.
The principle laid down in Butterworth v. ButterworthS Englefidd1followed.
A proxy granted to a proctor to act in the District Court issufficient authority to enable him to give notice of a statementof objection to a decree under section 772 of the Civil ProcedureCode.
Observations by Schneider J. on the scope of section 772 of theCode.
A CTION by the plaintiff for a dissolution, of his marriage withthe first defendant on the ground of her adultery with thesecond defendant, from whom the plaintiff also claimed a sum ofRs. 100,000 as damages. The plaintiff further claimed a forfeitureof her property in his favour by reason of her misconduct. Neitherof the defendants appeared in Court to give evidence, and the onlydirect evidence was that of the plaintiff, who produced certaindocuments in his possession. After hearing the evidence the learnedDistrict Judge made order decreeing a divorce a vinculo matrimonii,and directed a settlement, securing to the plaintiff an income ofRs. 12,000 a year out of the property of the first defendant; asagainst the second defendant, plaintiff was awarded a sum ofRs. 10,000 and costs.
From this decree the defendants appealed.
1 (1020) S9 L. J. P. r>. 161.
1925.
12(61)29
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1925.Drieberg, K.C. (with him Croos Da Brera) (on a preliminary
De Silva v °^jec^on)> for first defendant, appellant.—The plaintiff has notDe Silva appealed but has put in a statement of objections under section 772of the Code* That statement is ineffectual as it has not beenproperly stamped. Objection to the decree is a proceeding in theSupreme Court. It should therefore be stamped as in the SupremeCourt, but it has only been stamped as if it were a part of a proceed-ing in the District Court. Besides, the proxy granted to the proctoris to act in the District Court. As objection to the decree is not aproceeding in that Court the proxy does not authorize him to filethe objections.
The statement of objections is, therefore, ineffectual, and theplaintiff cannot be heard thereon.
J. S. Jayewardene, in reply, for plaintiff, respondent.—The objec-tion comes too late. Notice has been accepted by proctors of theother side, and the plaintiff ought to.be heard on his objectionsto the decree.
The proxy authorizes the presentation of the petition of appeal.By parity of reasoning this too must be considered a proceeding inthe Supreme Court, but the proxy enables the proctor to present it.
On the question of the stamping of the document it is sufficientto state that the document does not become of no effect. At themost the party will be liable to pay the penalty provided by theOrdinance for such cases.
(The Court overruled the objection.)
Hayley (with him N. K. Choksy), for appellant in 53.—Concedesthat the charge of adultery has been made out, and that he is liable indamages, but submits that the quantum of damages is excessive.
The learned District Judge has given no reasons for assessingthe damages at Rs. 10,000, and therefore we are unaware upon whatbasis he assesses it so high.
The Roman-Dutch Law authorities give little assistance as tothe principles underlying the calculation of the quantum of damages,vide 3 Nathan 1669.
Some principles seem to be deduced from two South Africancases, viz., Biccard v. Biccard & Fryer and Olivier v. Olivier &
. Pechover by Maasdorp in VoL I. of his “ Institutes of Cape Law”The important factors according to him would be primarily howfar the complaining party himself was to blame, the generalbehaviour of the complaining party to the defaulting party, andthe co-respondent’s ability to pay.
The basic principle is that damages are awarded as for an injuria.The injuria being the loss of the wife's consortium.
Applying these principles to the present case the respondentcannot seriously say that his wife’s consortium was of any value tohim at all; on the contrary from his own evidence it would appearthat she was a hindrance to his progress. Further, if at allanyone was to blame it certainly was plaintiff himself, who by his
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general quarrelsome conduct and by his finally leaving her alone atthe hotel effected the most proximate cause of her fall.
So that applying these tests, the plaintiff would certainly notbecome entitled to such a large sum as Rs. 10,000 by way of damages.
Furthermore, there is no evidence that the second defendantcan pay anything like this sum. All the evidence there is on therecord goes to prove the contrary, namely, that he is an“ out-of-work ” planter.
Though there does not seem to be much assistance from Roman-Dutch Law on this particular question, there is a series of Englishdecisions which show clearly the principles that underlie the assess-ing of damages in cases of this nature. These cases, though notbinding on our courts, are very helpful, and two of them only needbe cited.
Butterworth v. Butterworth ds Englefield (supra) and the later casewhich adopts it, viz., Ewer v. Ewer.1
The first case summarizes and reviews all the previous cases,and lays down the following principles :—
Firstly, that the damages are to be in the nature of compensationto the party aggrieved and not penal, for courts in thesematters are not moral disciplinarians.
Secondly, that the loss of any pecuniary aid by reason of theseparation is not to be considered.
Thirdly, that the true test is the value of the wife consideredin the two aspects of her pecuniary value, that is, ashousekeeper, business manager, &c., and of her consortium.
Viewed in the light of these principles the damages are excessiveand some relief ought to be given to the second defendant.
Drieberg, K.C. (with him Croos Da Brer a), for first defendant,appellant in 53a.—The case for the first defendant might be put as.high as this, namely, that there was no jurisdiction for the DistrictJudge to make an order of this nature at all.
In any event the amount awarded Rs. 12,000 per annum isextremely excessive.
The only sections under which the District Judge could haveacted in making a settlement of this nature are sections 617 and 618of the- Civil Procedure Code. But neither of these sections wouldseem to apply to the present case, as there are no children of themarriage, and the only extent to which section 618 would applywould seem to be regarding any settlement in respect of the housecalled “Heatherley.”
Besides, at the date of the marriage the properties were all infirst defendant’s name, and there is clear authority for theproposition that she could have done anything with them exceptdispose of them without her husband’s consent. The only settle-ment that was contemplated in favour oi the husband was therents and profits of “ Heatherley.”
1 123 L. 2 240*
1925.
De Silva v.De Silva
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1925. The plaintiff himself being the defaulting party is not entitledDe~SUvav. *° 8e* the luxurious income of Rs. 1,000 per mensem. On hisDe Silva, own showing he is now living on Rs. 300 to Rs. 400 a month, and asum of Rs. 400 or thereabouts should have been ample provision.His evidence also shows that he has started business, and if hesucceeds, as he hopes to, he will be quite comfortable. .
The Judge has also not taken into account a very important fact.He has taken the gross income as the basis for his calculation,
* this is clearly an error. He has failed to realize that the estate isheavily encumbered and that the monies realized have been investedin the purchase of properties that now form part of the very estate,out of which the Rs. 12,000 is to. come. If he had taken this factinto consideration he would assuredly have not given so large anamount as Rs. 1?,J00 per annum.
J. S. Jayeuxxrdene (with him H. V. Perera and N. E. Weerasuriya),for respondent to both appeals.
H. V. Perera in reply to the appellants.—The second defendantstates that the amount awarded is too large. Large is only arelative term. Considering the wealth and social position of bothparties to the marriage a sum of Rs. 10,000 is a mere nothing incomparison with the harm done.
Like all other matters needing adjustment by payment ofcompensation, here too the amount ought to "be fixed withoutreference to the second defendant’s ability to pay. The wealth ofthe co-respondent lias nothing to do with the assessing of the com-pensation due. If the second defendant urges, as he does, that heis not sufficiently well off it was for him to have got into the boxor proved it otherwise. He has not done so. The mere fact thathe is described as an out-of-work planter does not show that? he isnot wealthy. Many out-of-work planters have earned sufficientto justify a temporary lapse from work. The evidence shows thathe was staying at the Grand Oriental Hotel himself even beforethe plaintiff and second defendant turned up there themselves. So' that it must be presumed that he was well off.
The loss of her consortium cannot be belittled as there wasdisagreement. Her fidelity was never attacked. Perhaps she wasa woman of strong character, hence her consortium is all the morevaluable. This being her first lapse, the second defendant, w'ho isresponsible for it, must pay for the damage done.
The feelings of the husband have altogether been lost sight ofby the appellants. They must also be taken into account. Afterall plaintiff too belonged to the foremost in the land and the surpriseof it all and the scorn of persons, who came to know, must have beenhard to bear.
The co-respondent cannot at any rate be sympathized withas he has taken no steps. He has merely waited by and appealed.This court is entitled to look into his conduct before varying thedecree that has gone against him.
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The first defendant’s appeal too must be viewed with little sym-pathy, as she has not had the courage to face the court.
The appellants try to make out that all the blame was on theplaintiff; that would not appear to be so after a careful perusalof 1D2.
The Court has the power under sections 617 and 618 of the Codeto make settlements of this nature. Section 617 is modelled onsection 45 of the Matrimonial Act of 1857 and section 618 on theAct of 1859. There are innumerable instances in the EnglishReports where settlements of this nature have been made byvirtue of the powers conferred by the corresponding sections inthe English Acts.
Here Counsel cited several cases to the same purport, Lorrainev. Lorraine,x Midiointer v. Midwinter,2 Lorryman v. Lorrymasi,3Farrington v. Farrington,4 March v. March}
These cases would apply here on the authority of Trimble v.Hill•
J. S. Jayewardene (in support of the cross-objections).—Thegifts, although virtually in the name of the first defendant, weremeant to be a settlement for the family. Hence they are in thenature of dos or donatio propter nuptias. These two are liableto be forfeited where the wife is an erring woman. (Vide 1 Maas-dorp, p. 99, Voet 24-2-19.)
Dos need not necessarily be given to the husband himself(1 Burge Colonial Law, 313). So that the mere form of the giftinasmuch as the deed is in wife’s name cannot alter the substantialrights of the parties. Counsel also cited Philips v. Philips,7Wijesurendra v. Bariholomeusz,8 Dondris v. Kudatchi.9
Drieberg, K.C., in reply.—The forfeiture is limited to benefit,advantage, or profit derived by marriage. Here the first defendantgot no benefit and nothing is therefore liable to be forfeited.
(Van Lewen Censura Forensis 4-24-10 and 4-37-8, Voet 24-2-9,Morice Roman-Dutch Law, p. 19.)
The cases in J one's and Ingram's Notes of South African caseat p. 66 e- seq. clearly show that was the effect intended. Theillustration given at.p. 68 takes the matter beyond doubt.
The case of Philips v. Philips (supra) cited by the respondent iscertainly in favour of non-forfeiture in a case such as the present one.
September 8,9,10, and 11.1925. Schneider J.—
The decree in this action deals with four distinct matters :—
It grants to the plaintiff a divorce a vinculo matrimonii fromthe first defendant, his wife, on the ground of her havingcommitted adultery with the second defendant;
1 (2912) Prob. 222.* (1867)L. R. 1 P. and D. 440.
* (1893 Prob. 93.• (1879)5 App. Case* 342.
8 (1908) Prob. 282.7 (1882)5 S. C. C. 36.
4 (1886) 11 Prob. 84.8 (1886)6 S. C. C. 141.
9 (1902) 7 N. L. R. 107
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De Silva v-De Silva.
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It directs that a settlement be made out of the propertyof the first defendant to secure to the plaintiff an annualincome of Rs. 12,000 ;
De Silva v.Ve Silva
It orders the second defendant to pay to the plaintiffRs. 10,000 as damages ; and
It orders the defendants jointly and severally to pay to theplaintiff his costs of this action.
Against this decree both the defendants appealed. In his plaintthe plaintiff had claimed a declaration that his wife thefirst defendantby her misconduct had forfeited all her property for his benefit.The learned District Judge had dismissed this claim. After theappeals of the defendants had been preferred in the ordinarycourse, but before they came up for hearing, the plaintiff’s proctorfiled in this court a writing showing that he had given notice to thedefendants-appellants that he would take objection to the decreeupon four specified grounds under the provisions of section 772of the Civil Procedure Code. The first of these grounds was thatthe Judge had erred in “ finding ” that the plaintiff was not entitledto the forfeiture of property which he claimed. This “ finding ”has no place in the decree. The second ground was that theDistrict Judge was wrong in stating that the plaintiff claimed onlya sum of Rs. 12,000 a year. This refers to a statement in thejudgment which does not and could not find a place in the decree.The third ground was that the settlement of Rs. 12,000 a year forthe benefit of the plaintiff ordered by the District Judge was in-sufficient. And the fourth ground that the damages awarded wereinsufficient and Rs. 100,000 should have been awarded.
On the appeals being taken up for hearing Mr. Drieberg onbehalf of the first defendant-appellant submitted an objection tothe sufficiency of the objection to the decree preferred by theplaintiff’s proctor. He submitted that it should not be entertainedby us as it was stamped as if it were part of a proceeding in theDistrict Court, whereas it should have been stamped according tothe higher scale prescribed by the Stamp Ordinance for proceedingsin this Court. He submitted that the proxy granted by theplaintiff to his Proctor was therefore ineffectual. We overruledthis objection and heard Counsel upon all the matters raised by thetwo appeals and also by the objection to the decree. To my mindthere was more than one good reason for notupholding Mr. Drieberg’scontention. First it came too late. All that section 772 entitlesan appellant to demand is that he should receive at least sevendays’ notice. The proctors for both the appellants signed thestatement of objection to testify that they had received noticethat objection to the decree would be taken by the plaintiff at thehearing of the appeal. This was two months before the appealscame on for hearing. No objection was then taken to the authority
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of the proctor who gave that notice. It seems to me that it wastoo late to question his authority at the hearing of the appeals.If there was any want of authority, objection to it was waived bythe proctors for the appellants. Even granting that the proxyhad to be stamped upon a higher scale, the fact that it is not sostamped will not affect its validity or operation. Except in certain*specified cases expressly provided for, all that the Stamp Ordinance(No. 22 of 1909) provides is that a penalty be imposed and notthat an instrument be deemed of no effect in those cases in whichan instrument is not duly stamped. Hence, if the proxy in questionis not duly stamped, it would still prevail, but the plaintiff or hisproctor or both might have rendered themselves liable topay a penalty. For a third reason I do not think that the proxyshould have been stamped as contended for by Mr. Drieberg.As a proxy granted by a party to a proctor to act for him in theDistrict Court is sufficient if it contains the necessary authorityto prefer an appeal on his behalf, there seems no sufficient reasonwhy it should not be regarded as sufficient to give notice of a state-ment of objection to the decree. Mr. Drieberg’s contention wasthat a petition of appeal is preferred directly to the District Court,while a statement of objection to the decree is a part of a proceedingin this Court. I fail to appreciate this argument. Althougha petition of appeal is delivered to a lower Court, it is a petitionaddressed to this Court and is part of a proceeding in this Court.The lower Court is only the channel through which the petitionis transmitted to this Court. A statement of objection to thedecree is not more than a petition of appeal but less in that itsscope is more restricted. If a proctor has the right to preferan appeal, he has also the right to give notice that he would objectto the decree. I said that a statement of objection to a decreeis of smaller scope than a petition of appeal, because the languageof section 772 of the Code suggests to my mind clearly that whatwas contemplated by the provisions in that section was objectionto a part of the decree, not to the whole of it, and not perhapsto what it omits. A person aggrieved with a judgment or a decreeshould appeal in the ordinary way. The statement of objectionin this case i*s substantially an appeal upon all the matters theDistrict Judge had to decide. It raises a question upon a matterwhich does not appear in the decree, but only in the judgment.Decree and judgment are kept distinct by the definitions given tothose terms in the Code (section 5). A right of appeal is givenfrom any judgment or decree or other order (section 753), but thelanguage of section 772 confines objection to a decree, to the decreeitself. It seems to me therefore that the plaintiff should haveappealed in the ordinary way, and that the provision in section 772was not available to him. But as all the parties were heard uponthe statement of objection to the decree, I shall deal with thematters raised by it.
1925*
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De Silva v.De SUva
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1928.
Schneider
J.
De Silva v.De Silva
Before proceeding to consider the questions raised by the appealsand the statement of objection to the decree, I will consider inbroad outline the evidence relevant to those questions. Neitherof the defendants has given evidence nor was either of them presentat the trial. All the oral evidence was adduced by. tjie plaintiff.The defence rests upon facts elicited in cross-examination andproved by certain documents. The effect of the evidence may besummarized as the following :—
The plaintiff was studying medicine in England when the proposalwas first made that he should marry the first defendant. He waspersuaded by the parents of the first defendant, and also by thefirst defendant herself, against his own inclination, and against thewishes of his own parents, to give up his studies and return to Ceylonto be married to the first defendant. He was told that his bride’sdowry would be ample to enable them to live in comfort. Hereturned to Ceylon, and the wedding was celebrated as a greatsocial event in May, 1915. The Governor and the Colonial Secretaryof the Colony signed the Register of the marriage as witnesses.The plaintiff is a Roman Catholic, and according to the rules of hisChurch his marriage should be solemnized according to the ritesof that Church. He desired to conform to this rule, but the firstdefendant insisted upon the marriage being solemnized accordingto the rites of the Church of England, and the plaintiff had to yieldto her wish. In one of the letters which has been put in evidencethe first defendant asserts that the plaintiff has made a promiseto her to become a member of her Church, but this the plaintiffdenies. The plaintiff’s own evidence is that their married life wasnot a happy one. In every matter he had to yield to her wishes.He desired to live in a house of their own, like all other marriedpersons belonging to their community, but the first defendantpreferred to live in a hotel. Out of a period of nearly nine yearsof married life they lived only for two and a half years in a houseof their own. The rest was spent in travelling, twice to and fromEngland, and in hotels. He says that no husband and wife of hiscommunity had lived for such a long period in hotels as he and hiswife had done. The question of religion was a cause of frequentquarrels between them as also the management of his wife’s property,and her behaviour. He says, she annoyed him constantly by herinsistence, time after time, upon his attending the services of herChurch. Heedless of his wishes and complaints she persistedin sitting up night after night till the early hours of the morningplaying cards with visitors. On one occasion, in Ceylon, in 1921,.her behaviour in this respect led to a violent quarrel between them.He had objected to her entertaining a particular man, who, he thoughtwas too constant a visitor. In the course of this quarrel he says,“ she made a number of charges against me,” and he was orderedto leave the house, which he did. The correspondence which tookplace between the parties after this shows that it was a serious
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breach between the husband and wife, and that the plaintiff actuallywrote to his wift{ telling her that he was leaving the Island (lettermarked 1D10 dafted April 8, 1921). This correspondence disclosedthe feeling which actually existed between the parties. Exceptingfor one letter (Do) the letters written by the wife to the husbandhave not been produced in evidence. But several have beenproduced which were written by him to her (1D7 to 1D10). Theseletters disclose the fact that he was smarting under a feeling thathe occupied a humiliating position, and that he was worried andannoyed by her attempts to drive him to give up his Church andto join hers. In the evidence he gave in Court, the plaintiff statedthat he was suffering from some malady in his fingers and thathis wife always threw this at his face whenever a quarrelarose between them. He said in so many words that it waS a causeof her aversion from Mm. In a letter which she wrote to him tellinghim upon what conditions she would agree to be reconciled andlive with him once more, she insists that he should have himselfmedically treated fbr the malady from which he was sufferingand he should also give her a promise that he would not beat heragain or use abusive language towards her. In his evidence inCourt the plaintiff denied that he beat her, although his letter(1D8) seems to contain an admission that he had beaten and abusedher, but only on such occasions as she herself was guilty of suchconduct towards him. He stated in his evidence that his wifehad hit him and abused him many times. He admitted thatbesides the rupture in 1921 that they had quarelled and separatedon two other occasions. In the correspondence, he charges hiswife with being “ a woman of vile temper ” and with “ havinga vicious tongue.” He siys that he yielded to her as she was“ a difficult woman to please.” In 1923 he and his wife were livingin the Grand Oriental Hotel, Colombo, when the second defendant,who was also a visitor at the same hotel, formed his wife’s acquaint-ance. Shortly afterwards he observed that his wife spent a greatdeal of her time in the second defendant’s company. He spoke toher about it, and also complained of her behaviour to her parents,who lived in Colombo. In the month of March of thabyear he andhis wife were constantly quarelling over a proposal made by hiswife to hand over the management of her immovable propertyto a firm of merchants. She proceeded so far as to have thenecessary papers drawn up by a notary for this purpose. Herhusband’s written consent is necessary under our Law for anydealing with her immovable property. The plaintiff refused tosign the necessary documents. He says, that he refused, becausehe suspected that she was being set up by the second defendant tohand over her property to the firm of merchants. On March 27,the husband and wife had a quarrel and he left the hotel leavingher there, the second defendant being in this hotel at the time.In the evidence he says his wife got into an ungovernable temper
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Dt SUvav.J)e Silva
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and created a scene when he refused to sign the papers. But thisis probably an exaggeration, for in his letter of April 10 (1D2)in referring to this incident he speaks of it as “ a little disagreementbetween us.” When he left the hotel on this day he did not tellhis wife that he was not returning to her, but two days afterwardshe wrote to her the letter (1D1) from an estate belonging to her atNattandiya, which is many miles away from Colombo. In thisletter he says that he did not tell her that he was not returningas he “ did not want another of those hysterical outbursts so outof place in a hotel, of which you seem so passionately fond and whichyou think will make me .do anything you wish.” He informedher in this letter that he is the right person to have charge of herestates and that he had, in fact, taken charge of them since the daybefore. He asks her to come to him or to send him his “ things,”in case she saw no way out of the situation, she had brought aboutby her own behaviour and actions. From the plaintiff’s letter datedMarch 10, but which should be April 10, (1D2) it is. to be gatheredthat she replied to this letter. In her reply she appears to haveretorted that their living together was prevented by the way theplaintiff treated her. In the letter (1D2) the plaintiff tells his wifeplainly that they could only live together ovl the distinct under-standing that he was to continue to exercisfe “ controlling rightsover her estates.” In this letter he also refqres to a visit paid byhim to the hotel on April 7 which he says wa& made with the objectof arriving at an understanding with her, but that his object hadbeen frustrated by her hysterical conduct. In his evidence theplaintiff describes what happened on this visit of his to the hotel.He says, that after he had spoken to his wife in the sitting roomshe left him and locked herself in the bedroom, and she had beenthere about an hour, when her uncle and a mutual friend of theplaintiff and his wife called. They were admitted by the firstdefendant into her bedroom and she spoke to them there. Subse-quently she came to the sitting Toom when he was speaking tothese two persons there, and “ then there was a terrible scene by her.”He says, that on that day she abused and struck him. He left thehotel on the same day, but remained in Colombo up to April 10and returned to the same estate from which he wrote the letter ofMarch 29 ; while there he received information that his wife hadleft the hotel. He returned to Colombo immediately anddiscovered that the second defendant had also left the hotel. Hemade inquiries and pursued them to India. In India he foundthem occupying the same room in a hotel. Adultery is an offencein India. He prosecuted the second defendant for adultery withhis wife and the second defendant was convicted and sentencedto a term of imprisonment. The plaintiff then returned to Ceylonand charged his wife with having committed theft by taking awaycertain articles of jewellery belonging to him which he had leftwith her. He continued to manage his wife’s estates after her
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elopement and took all the income'. The wife had to sue himsubsequently to recover this income.
I will now proceed to consider the appeal of the second defendantfirst. In his petition he urges that he is not liable in damagesat all. His Counsel, Mr. Hayley, who argued his appeal withmuch ability stated at the very outset of his argument that he didnot contest that the charge of adultery had been established andthat he was liable in damages, but would only submit that thedamages awarded were excessive. He pointed out that the learnedDistrict Judge had given no reasons for awarding Rs. 10,000 asdamages. This statement is correct. But the facts which theJudge had accepted as proved, and which are relevent to the issueon damages should be regarded as disclosing some of the circum-stances which no doubt led him to award the damages whichhe has given. It is necessary to inquire upon what principle orupon what considerations damages and costs should be awardedin actions, such as the present, in which the husband obtains adivorce from his wife on the ground of her adultery with the co-defendant, which is the term by which the respondent, accordingto the English procedure, is designated in our Code. The questionhas not been considered in any of the local decisions cited to us.It is but little assistance of a practical kind which can be obtainedfrom the writings of the older Jurists of the Roman-Dutch Lawor from the text books by modern authors on that Law, as it prevailsin the present day in the South African Colonies or elsewhere.Nathan in his Common Law of South Africa 1 cites the followingpassage from Grotius2:—
" A person who commits adultery with a married woman, eventhough with her consent, inflicts an injury on the husband,and is consequently liable for the same to her husband,over and above any damage which the husband or childrenmay suffer thereby.”
and offers the following comment thereon :—
“ In other words, Grotius indicates that a husband may recoverdamages for the loss of the consortium of his wife, and thedisturbance to his matrimonial happiness, over and aboveany actual matrimonial loss sustained by him. There isno South African case in which the children have recovereddamages for adultery, and the only action in tort isthat of the husband against the adulterer for damages.It should- be noted that adultery is no longer punishableas a crime, unless it is accompanied by incest, that iscarnal intercourse with a person who is related withinthe prohibited degrees.”
1 Vol. III., a. 1624, p. 1669.
* Introduction to Dutch Jurisprudence, Chap* XXXV. 8. 9 {Herbert's Trans-ation),p. 447.
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De SUva v.De SUva
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De Silva v.De Silva
Maasdorp in his “ The Institutes of Cape Law ” 1 cites two casesBiccard v. Biccard <Ss Fryer (supra) and Olivier v. Olivier &Pechover (supra) and says—
“ In estimating the amount of the damages in such a case theCourt will consider whether the husband himself, beingthe plaintiff, was not to blame, his treatment of hiswife previously to her adultery being an important elementin the question; as also will the ability of the defendantto pay. The general behaviour of the plaintiff will alsobe taken into consideration, both as regards the amountof damages and the payment of costs.”
It would appear, accordingly, that the damages are awardedas for an injuria in the actio injuriarum. The injuria inflictedbeing the loss of the consortium of the wife and the consequencesfollowing therefrom. The real difficulty lies in the proper appli-cation of this principle to the facts of each case. Mr. Hayleycited three leading cases decided by the Courts in England,but I would refer only to two of them. Although those decisionsare not binding on us, yet they are of the greatest possible valueas illustrations of the application of a broad principle which appearsto be common to both the Roman-Dutch Law and the EnglishLaw on the subject. The earlier of these two cases is Evans v.Evans db Platt2 which is referred to in this later case of Butterworthv. Butterworth & Englefield (supra). This latter case and five othercases were decided by one judgment by McCardie J., in 1920. It isa learned and most interesting judgment. No less than forty-onedecisions are referred to. It discusses fully the principles to beapplied and the considerations to be regarded in assessing damagesand awarding costs in divorce pr -ceedings. The learned Judge firstholds that the Jury may find in divorce proceedings that thehusband, although he establishes adultery, has sustained no damage,and expresses the opinion that in such a case the Court or Juryhas the power to withhold even nominal damages. He comes tothis conclusion, because section 33 of the Matrimonial Causes Act,1857 3 requires that claims for damages be tried on the same princi-ples as such a claim in an action for criminal conversation. Insuch an action under the English Law the awarding of damageswas left to the discretion of the Court. It is an action peculiarto the Common Law of England, but according to. the Roman-Dutch Law the adultery itself is an injuria to the husband, and thusin itself a ground for damages unless the rule of volenti non jitinjuria should operate to include the claim for damages. Therefore,according to our Common Law, whether damages have been actuallysustained or not, the injured party was entitled to damages. Itwas a case of injuria sine damno. But it appears to me that inenacting section 612 of our Civil Procedure Code, our Legislature1 Vol. 1, p. 89.2 (1889' 68 L. J. P. 70.
3 20 and 21 Viet. O. 85.
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intended to introduce the principles of the Law of England thatdamages need not necessarily be awarded, or that at least it intendedto modify our Common Law to the extent of giving the Court thepower to withhold the awarding of damages. Section 612unznistakeably leaves the awarding of both damages and coststo the discretion of the Court, but this point does not actuallyarise in this case and 1 will therefore say nothing more about it.Proceeding next to discuss the nature of the damages the Judgeholds that they are not exemplary or punitive, but compensatory.This would appear to be the view, also taken by the Superior Courtsof the South African Colonies. On this point what. Sir FrancisJeune said to the Jury in his summing up in Evans v. Evans <£?Platt (supra), already mentioned is appropriate here: “ It is notyour duty to punish the co-respondent, this Court does not sit asa Court of morality to inflict punishment against those who offendagainst the social law.” I am of opinion that the conclusion ofMcCardie J. as to the nature of the damages is applicable to thedamages, which may be awarded by our Courts in actions fordivorce.
He next discusses the practical application of the principleupon which damages should be assessed. He thinks that thereare two main considerations: (1) the actual value of the wifeto the husband, and (2) the proper compensation to him for theinjury to his feelings, the blow to his marital honour, and theserious hurt to his matrimonial and family life. .He considersthe value of the wife as consisting of two aspects, (a) “ Pecuniary,”and (6) " Consortium.” He explains that the “ pecuniary value ”generally is least important and depends on the wife’s fortune,her assistance in her husband’s business, her capacity as a housekeeper, and her ability generally in the home. The consortiumaspect, he says, is broader and depends on the wife’s purity, moralcharacter, affection, and her general qualities as a wife and mother.He thinks the adulterer’s conduct has but little bearing upon the“ pecuniary ” aspect and that that branch of the assessment mustbe decided by the criteria of good sense and experience. But to theconsortium aspect he concludes the adulterer’s conduct has theutmost relevancy. If the wife be of wanton disposition or disloyalinstincts, her general value to the husband is so much the less,so also if she thrusts herself upon the adulterer or lightly yieldsto his desire. But if on the other hand, the adulterer has onlygained his wish by assiduous seduction, and by practised artifice,it may well be inferred that the moral character and general worthof the wife was an asset of value to the husband. Although, as ageneral rule evidence of the adulterer’s means was inadmissible,he was of opinion that evidence as to his fortune might be givenwhere he had used that fortune to seduce the wife. But theamount of compensation did not depend upon whether the adultererwas poor or rich. “ A poor man cannot by the plea of poverty
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J.
De Silva t>.De Silva
1925.
Schneider
J.
De Silva v.De Silva
( 302 )
escape from the actual injury he has caused. A rich man shouldnot, merely because he is a rich man, be compelled to pay more thana proper compensation to the husband.” It seems to me thatnot to take this view would render the damages punitive, whichthey should not be. As the blow and the shock to his feelingsdepend to a large extent on the conduct of the adulterer, he pointsout that it would follow that any feature of treachery, any grossnessof betrayal, any wantonness of insult, and the like circumstancesmay add deeply to the husband’s sense of injury and wrong, andtherefore call for a larger measure of compensation. The husband’swhole conduct and affection should be tested as bearing directlynot only on the value of the wife, but also upon the question of anyshock to his feelings which he may assert. “ The character andconduct of the husband is as fully in issue as the character andconduct of the wife.” Finally he holds that—
No damages should be given against an adulterer when he is
not shown to have known that the woman was married ;
No damages should be given which an adulterer cannot
pay; and
That a co-defendant ought not to be mulcted in costs, because
when he has knowledge too late to repair the wrong thathas been done, he does not then and there abandon thewoman.
All the principles of that decision appear to me to be applicableto our Courts. If these principles are applied in the assessment• of damages in the present case, many reasons exist for reducingthe damages awarded. There is no evidence that the second orco-defendant can pay those damages. All the evidence abouthis means is the description of him in the plaintiff’s letter as “ anout-of-work planter,” and the fact that he was possessed of sufficientmeans to be living in the same hotel as the plaintiff and his wife.Then again the pecuniary value of the wife to the husband in thiscase might be said to have been “ nil.” She would not be worriedwith housekeeping nor did she help in any business. Then uponthe consortium aspect the character given to her by her husbandand his story of their matrimonial life embittered by constantquarrelling and the exchange of blows do not call for heavy damages.Another circumstance in mitigation of damages is the conductof the plaintiff in leaving his wife alone in a public hotel, andgoing away without even asking her to go to her parents to whomhe had easy access. His conduct exposed her to temptation,and very likely precipitated her elopement.
I would, therefore, reduce the damages to the amount which willbe found given in my brother’s judgment. At the conclusion of theargument before us, we were agreed as to the orders which shouldbe made regarding the several matters raised Jby the appeals, andthe statement of objection to the decree.
( 303 )
I shall now proceed to consider the question of the forfeitureof property raised by the plaintiff, and the question of the settle-ment of property raised by the first defendant. The two questionsare closely connected and might conveniently be consideredtogether. The plaintiff's claim is that he has become entitled toa declaration of the forfeiture of his wife's property under theprovisions of our Common Law. His contention is that the forfeitureincludes all the property which his wife is now entitled to. Thatproperty consists of (1) a house called “ Heatherley,” describedin Schedule B of the plaint, which was conveyed to her by her fatherin 1918 in exchange for another house, which he had conveyed toher in May, 1915, shortly before her marriage to the plaintiff, (2)an estate called Dicklanda West, also conveyed to her by her fatherin 1915, at the same time as the house, (3) an estate called Watagalapurchased by her in 1915 for Rs. 115,000, the whole of which sumwas raised by her upon a mortgage created by her over Dicklandaestate, (4) an estate in Nattandiya purchased by her in 1918 forRs. 78,500. The plaintiff said in his evidence at the trial thatRs. 50,000 of this sum was paid by money, which the first defendanthad received as a wedding present from her father. The balancewas presumably found by her. In the case of the house and estateconveyed by her father, -the deeds provided that she is to enjoyall the rents and income as belonging to her own separate estateand free from the control, debts, engagements, or liabilities of herhusband. In the case of the house the deed provides that shewas not to alienate it, but, that upon her death it should devolveupon the children by the intended marriage between her and theplaintiff, and on failure of such children that her father or his thenliving heirs should succeed, subject to the right of the plaintiffto enjoy the income during his life. It should be noted that bothdeeds conveying the house and the estate recite that a marriagewas about to be solemnized between the plaintiff and the firstdefendant, and that in consideration of that fact and the love andaffection which the first defendant's father entertained towardsher, he was transferring the property to the first defendant. Butin the operative part of the deed it is expressly stated that inconsideration of the transfer of those properties, the first defendantagreed to renounce her right of claiming a share of her father’sestate by inheritance. It is also expressly provided in the deedsthat if the intended marriage did not take place, the transfer of theproperty was not to take effect.
The contention submitted on behalf of the plaintiff at theargument before us was that all the above property* came underthe description of dos and/or donatio propter nuptias. Thelearned District Judge has discussed this contention at some lengthin his judgment, and he has arrived at the conclusion that itwas not sustainable as no one of these properties comes withinthe description of dos as contemplated either in the Roman or
1925.
Schneider
J.
X)e Silva v.De Silva
( 304 )
1925.
Schneider
J.
De Silva v.' De Silva
in the Roman-Dutch Law. He therefore holds that the plaintiffis not entitled to the declaration of forfeiture which he claims. Iventure to agree with the learned District Judge’s conclusion on thispoint. The reason for this conclusion might be stated in a somewhatdifferent form. The authorities upon the Roman-Dutch Laware clear in stating the general principle to be that the offendingspouse forfeits not his or her own property, but only the benefitsderived by marriage under the Common Law or by ante-nuptialcontract. Jones and Ingram’s “ Leading Cases on South AfricanLaw ” were cited to us beginning at page 66. The authors referto a number of leading cases and at page 68 give an illustrationwhich renders the principle clear. The illustration is this :—
“ Suppose A on marriage in community to B, brings in a farmworth £1,000 and B brings in another worth £250. B,the wife, is divorced for adultery and a forfeiture ofbenefits is declared. The estate being worth £1,250B would, if the marriage had been dissolved by death,have got £625. But owing to her misconduct and theresulting forfeiture of benefits, she would only get £250,i.e., the amount she contributed, it being less than halfthe estate. But if she had contributed £1,000 and thehusband £250 each party would get £625, there beingno benefit conferred on the wife which she could forfeit.”
On this point reference might also be made to ‘Maasdorp “ TheInstitutes of Cape Law ” (supra), Van Leeuwen’s Commentaries*, andMorice’s English and Roman-Dutch Law (supra). As supporting theplaintiff’s contention that he was entitled to a declaration of theforfeiture of property, three local decisions were cited to us. Thefirst of these cases Philips v. Philips (supra) insteadof supporting thatcontention, is, on the contrary, an illustration of the proper applica-tion of the principle that the forfeiture is of the benefits derivedby the marriage under the Common Law and not of the property ofthe offending spouse. It was held in that case that the husbandwho had been divorced by the wife bn the ground of his adultery,and who had brought no property into the community, had by hismisconduct forfeited his right to claim a half share of the jointestate to which he would have been entitled had the marriagebeen dissolved in other circumstances. In the second case Wife-surendra v. Bartholomeusz2 no authorities are cited. I ventureto think that it has not been rightly decided in holding that thewife had forfeited an article of furniture, which she had broughtas part of her dowry upon her marriage, when a divorce was grantedto her husband from her on the ground of her malicious desertionof him. The third case Dondris v. Kudatchi (supra), contains a wellconsidered and learned judgment by Wendt J. who discusses the
* Kolzc’ Translation, revised byDecker, Vol. II., p. 204.
* (1SSS) 6 S. C. C. HI.
( 305 )
Roman-Dutch Law authorities, and holds that the adulterous 1925.spouse forfeits for the benefit of the innocent spouse everything Schneiderthat would otherwise have been enjoyed by him or her under the J-Common Law or their ante-nuptial contract. He here states De Silva v.the principle in language almost identical with that employed by De Silvathe Roman-Dutch Law authorities. But I do not feel it necessaryto pursue this discussion any further, because I have come to theconclusion that our Common Law, even if it still exists on thissubject, has no application to the present case. From about theyear 1875 the trend of local legislation in regard to married women’sproperty appears to have been to adopt the Statute Law of Englandon that subject. In 1870 there was enacted in England an import-ant piece of legislation regarding married women’s property.1This was followed by an amending Statute in 1874.2 In 1882the Statutes of 1870 and 1874 were repealed and the law on thesubject consolidated by The Married Women’s Property Act 1882.8The provisions of those Statutes were directed to relieve marriedwomen from some of the disabilities under which they labouredin consequence of the provisions of the Common Law. It is notnecessary to consider in detail how much of those provisions wereadopted in local legislation. But local legislation was undoubtedlydirected towards the same object as the English Statutes. Sections9, 10, 13, 17, and 18 of our Matrimonial Rights and InheritanceOrdinance (No. 15 of 1876) which came into operation in 1877are very similar, if not identical with, sections 2, 5, 9, 10, and 11,respectively, of The Married Women’s Property Act, 1882 (supra). .
The Ordinance introduced a radical alteration of the Common Lawwhen it enacted in section 8 that there should be “ no communityof goods ” between a husband and wife married after the pro-clamation of the Ordinance as a consequence of marriage. In1857 and 1859 two Statutes were passed in England upon a subjectclosely connected with married women’s property. I refer to theDivorce and Matrimonial Causes Acts of those years4. OurCivil Procedure Code (Ordinance No. 2 of 1889) was enacted in1889. Chapter XLII. of that Code deals with matrimonial actions.
It embodies several of the more important provisions of thoseEnglish Statutes. For the purpose of the present case I needonly indicate that sections 612 and 617 are closely modelled uponsections 34 and 35 of the English Statute of 1857, and section 618upon section 5 of the English Statute of 1859. The effect of section.612 was undoubtedly to modify our Common Law to the extentat least of giving the Court a discretion to award damages or notin matrimonial actions, whereas the Common Law gave the injuredperson a right to demand damages even when no actual damageswere proved to have been sustained. The effect of sections 617and 618 might be regarded either as repealing the Common Law
S3 and 34 Viet. C. 93.3 45 and 46 Vtct. C. 75.
37 and 38 Viet. C. 50.* 20 and 21 Viet. C. 85.
12(61)20
1925.
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J.
De Silva v.De Silva
( 306 )
on the subject dealt with in them or of introducing new provisionswhich are to stand side by side with the provisions of the CommonLaw, not being opposed to one another, but only alternative eachto the other. They give a Court discretion to act under one setof the provisions or the other. For the purpose of this case it isnot necessary to go so far as to say that the Common Law wasrepealed as the result of the enactment of these sections. Theyundoubtedly empower a Court to make new settlements (section 617)or to vary the terms of any existing settlements (section 618).It seems to me that if the Court elects to exercise its power asit has done in this case under these sections of the Code, there is noroom in the circumstances of this case for also declaring a forfeitureof property under the Common Law. If the plaintiff had beenobliged to rely upon the Common Law, there can be no questionthat he would have had no right to claim a forfeiture of the estates,which were purchased by the first defendant. They cannot bebrought within the meaning of the terms dos or donatio propternuptias. The fact, if fact it be, that she paid part of the price ofone of those estates with money she had received from her fatherupon her marriage, and that she paid the whole of the purchase. price of the other with money she raised upon a mortgage over theestate gifted to her by her father cannot vest those estates withthe character of a dos or donatio propter nuptias. Nor would it becorrect to say that they are “ benefits ” in the sense of the CommonLaw, which she derived by reason of her marriage. The “ benefits"which the Common Law declares liable to forfeiture are thosederived as the result of the community of property in consequenceof marriage, which is induced by the provisions of the CommonLaw or the property acquired by some ante-nuptial contract.I am accordingly of opinion that the Court was right in rejectingthe plaintiff's claim to a declaration of a forfeiture of property,and was also right in proceeding to exercise its powers under theprovisions of the Code in ordering a settlement.
The District Judge ordered a scheme for a settlement to besubmitted for his approval, securing to the plaintiff Rs. 12,000a year or Rs. 1,000 a month. The plaintiff asserts that this sum istoo little. The first defendant objects that it is too much. Thereis no reliable evidence as to the actual average income, taking oneyear with another, which the first defendant derives from herproperty, but at one stage of the trial the parties appear to haveagreed that the nett income was Rs. 40,000 a year after the paymentof interest due on the mortgage. The evidence on record givenby the plaintiff conveys to my mind the impression that he wasinclined to exaggerate facts, or to minimize their effect, to suithis own purpose. He says that his wife allowed him to drawto the extent of about Rs. 25,000 a year, and that after payingmost of the bills he was left with Rs. 400 or Rs. 500 a month forhis own personal use. When questioned what sum he considered
1925.
( 307 )
reasonable to enable him to live on the same scale as when he livedwith his wife, his answer was Rs. 1,000 a month. In another partof his evidence he stated that his monthly expenses since hiswife’s elopement were Rs. 300 to Rs. 400 a month. He statedthat he was prevented from completing his medical studies by thefact that he had to go about with his wife a great deal while theywere in England over two years continuously, and that in Ceylonhis time was wholly occupied with the management of his wife’sproperty. In the events that have happened he is now free topursue his studies and take up any occupation he might fancy.He is a young man and Rs. 300 or Rs. 400 a month is a sum whichis sufficient to live comfortably in this country. When the firstdefendant’s father transferred the property to her prior to hermarriage, the plaintiff admits that he was aware that his wifewas to receive all the income of the property, and that the onlyprovision made for his benefit was the right of succession to therents of the house should his wife predecease him leaving no children.It would appear, therefore, that he entered into the marriageknowing full well that he had to depend upon the goodwill of hiswife for any assistance he expected to receive. I am inclinedto regard the deeds by which the first defendant’s father conveyedproperty to her not so much as marriage settlements, but asconveyances of property in place of property to which shemight subsequently have succeeded. Even if the conveyanceof the house be regarded as a settlement of the kind contemplatedin section 618, because it contains provisions for the benefit of bothparties to the marriage, the conveyance of the estate DicklandaWest cannot be regarded as such a settlement. It is clearly nota settlement “ made on the parties ” to use the words employedin the section to describe the settlements which*a Court may varyunder the provisions of that section. But although the propertydonated to the first defendant by her father may not come undersection 618, all her property, whether acquired by donation or bypurchase, can be dealt with by the Court under section 617. Iwould, therefore, regard the settlement ordered by the Courtin this case as a settlement made under section 617. A numberof decisions of the Courts in England were cited to us as illustratingthe principles upon which those Courts had acted in making orvarying settlements under those provisions of the English Law,which are similar to sections 617 and 618 of our Code. The case ofTrimble v. Hill (supra) is authority for the proposition that when aColonial Legislature has passed an Act in the same terms as an Impe-rial Statute, and the latter has been authoritatively construed by aCourt of Appeal in England, such construction should be adoptedby the Courts of the Colony. Sections 617 and 618 are undoubtedlyin the same terms as the Imperial Statutes, and if we were concernednow with the construction of those sections, we would be boundto follow English decisions, but in the present case we are only
Schneider
J.
De Silva v.De Silva
( 308 )
1925.
S<”HNEIUE7l
.T.
JD& Silva iDe Silva
concerned with ascertaining what amount should be settled on theplaintiff. All the cases cited to us at the argument of the appealsappear to have been cited in the lower Court. They will be founddiscussed in the judgment of the learned District Judge. I do notthink there is any necessity for me to discuss them. The principleto be applied is simple. In each case the amount should be decidedupon a consideration of all the facts of the case. I have mentionedthe facts which lead me to reduce the amount awarded.
I would direct that a settlement be made to secure to the plaintiffa monthly income of Rs. 400 from the first defendant’s propertyduring their joint lives, and I would also direct that this settlementshould leave intact the plaintiff’s right to succeed to the incomeof the house called “ Heatherley ” in the event provided in thedeed.
As regards costs, I agree with the orders, which will be foundin the judgment of my brother.
Dalton J.—
The plaintiff has obtained a decree nisi in terms of the lawdeclaring his marriage with the first defendant dissolved on theground of her adultery with the second defendant. He has beenawarded Rs. 10,000 damages against the second defendant, andas against the first defendant he has been declared entitled to asettlement of an income of Rs. 1,000 a month from first defendant’sproperty. He has further been awarded costs against the firstand second defendants jointly and severally.
From this decree all the parties have appealed.
The first defendant does not now contest the adultery, but claimsthat the charge of desertion pleaded by her against the plaintiffwas proved.' She also appeals from that part of the decree whichdeclares the plaintiff entitled to Rs. 1,000 a month from her property,on the ground that no property existed in respect of which the Courtcould exercise its power of settlement under the provisions ofsection 617 of the Civil Procedure Code. If the settlement ofpart of her property, which does not come within the meaningof the terms dos or donatio propter nuptial, can be made undersection 617, the sum of Rs. 1,000 a month is excessive. Withregard to the order as to costs, she says, she should not have beenordered to pay plaintiff’s costs.
The second defendant appeals on the ground that the damagesawarded to the plaintiff are excessive.
The plaintiff appeals from that part of the order awarding himRs. 10,000 damages. He claims Rs. 100,000 damages, and nowsays he should have been awarded that amount. He furthersays that by her adultery the first defendant had forfeited for hisbenefit all her right to certain property set out in his claim ofwhich she was the owner, and that he should be declared .-entitledthereto.
( 309 )
>
The plaintiff and first defendant were married in Colombo onMay 10, 1915. The plaintiff at the time was a medical student,who had passed the major part of the examinations for M.B. degreeat Liverpool. He is now 37 years of age. As the first defendantwas the daughter of wealthy parents, he states, he was persuadedto return to Ceylon and give up his medical studies in order tomarry her. There are no children of the marriage.
From May, 1915, to April, 1923, the date of the adultery, a periodof eight years, the parties appear to have had a home in Ceylon.i.e., a house of their own, for two periods of two and a half yearsin all. For the remaining five and a half years of their marriedlife, they lived either with the wife’s parents or in hotels, or wereon visits to England. From an early date the evidence disclosesthat differences arose between them, first of all due to the factthat they belonged to different religions (the plaintiff says, he is aRoman Catholic and that his wife was a member of the Churchof England), and secondly to the fact that the plaintiff was notgiven full control over his wife’s property. The parties hadseparated in 1917 for two or three days over a religious dispute,aggravated by charges of other kinds, one against the other. In1921 also he left her for a short period, being turned, he says, outof her parent’s house, where they were then living. The principalcause of the differences, however, appears to have been a financialone. This is amply disclosed by the letters which passed. Thereis no doubt, whatever the reason may have been, that the plaintiff.wanted full financial control of his wife’s property. He sayis thatit was humiliating to him that it should be otherwise. He admitsher business capacity, and her great generosity to him in respectof the allowances she made to him, but that was not sufficient, andhe repeatedly claims full control, which she was unwilling to give.Whilst there may have been cause for his complaint as to thekind of life his wife preferred to lead, it does not seem to me thatthe plaintiff’s attitude as regards his wife’s property could not butfail to make continual trouble between the parties, unless the wifewas prepared to concede in full all that he demanded. Thereappears to have been an incompatibility of temperament betweenthe parties, which could only be mended by concessions on both sides.
This was the state of affairs up to February or March, 1923,when the second defendant first met them. He appears to havebeen a resident at, or visitor to, the hotel where plaintiff and hiswife were living. Their former unhappiness is now added to bythe wife showing a preference for the company of the seconddefendant. Of this the plaintiff complains in liis letters of March 29(1D1) and April 10 (1D2). These letters show, however, that he isstill thinking more of his wife’s property than' of her, althoughhe says he never had any cause to distrust her fidelity to him.That he however should complain of her conduct with a man,and then leave her living alone at a hotel with that man, instead
1925. '
Dalton* ,T.
De Silva v.De Silva
( 310 )
1925.of putting away for the time being at any rate his old complaints
Dalton J.a8a“ist her, would certainly seem to have been most unwise;
there is however no suggestion of condonation but merely that his
Silvacon<luct in leaving his wife at such a time was most indiscreet.
The day after the letter of April 10 was written, the first andsecond defendant left Colombo together and were traced to Madras.The plaintiff then commenced this action.
The first matter arising on the appeal convenient for considerationis the question of damages against the second defendant. Onhis claim for Rs. 100,000 the learned trial Judge has awarded himRs. 10,000, but does not say how he arrives at that sum.
The principles upon which claims for damages for divorce areto be tried have been dealt with at length in the case of Butterwarthv. BvMei'worth (s^pra), by McCardie J. Since adultery is no longerpunishable as a crime, there would appear to be little or no difference ,between the English and Roman-Dutch Law on this question.The gist of the action is the loss to the husband of the comfortand society of the wife. But in addition to the underlying ideaof the j»ower of the husband, at any rate at Common Law in England,over the person and property of his wife, the law has always hadregard to and laid stress upon the moral side, the sanctity of married,life, and the honour of the husband and the children. The damagesare to compensate the plaintiff for the loss or injury he has sustainedand not to punish the second defendant for his misconduct. Thelearned Judge then cites the following passage from Butler's Nisi. Prius :—
“ As to adultery, the action lies for the injury done to the husbandin alienating his wife’s affections, destroying the comforthe had from her company, and raising children for himto support and provide for. And as the injury is great,so the damages given are commonly very considerable.But they are properly increased or diminished by theparticular circumstances of each case, the rank andquality of the plaintiff, the condition of the defendant,his being a friend, relation, or dependent of the plaintiff,or being a man of substance, proof of the plaintiff and hiswife having lived comfortably together before her acquaint-ance with defendant, and her having always borne a goodcharacter till then …. are all proper circum-stances of aggravation.”
He then goes on to deal with the two main considerations uponwhich damages are to be based, first the actual value of the wifeto the husband, and secondly the proper compensation to thehusband for the injury to his feelings, the blow to his maritalhonour, and the loss to his matrimonial and family life.
It is clear from the evidence that considerable inroads on the
wife’s affection for the plaintiff had been made before February,
o
( 311 )
1923, and it cannot be said that the plaintiff was leading a comfort-able life with his wife up to that time. He says he was continuallytrying to persuade his wife to change her way in respect of hotellife and late hours and form a home with him. They both weremembers of families which were recognized, so plaintiff says, “ to beof the first rank of the community to which we belong.” Of theco-defendant nothing appears save that he is described by plaintiffas “an out-of-work planter.” That might possibly aggravatethe injury to the husband’s feelings, and make him feel keenlythe blow to his marital honour. There is no suggestion, however,of anything like treachery on the part of the second defendant;but he knew of course that the first defendant was a married woman.The relations between plaintiff and his wife were also doubtlessapparent to him after he came to know them, and he also probablyknew that the wife was possessed of Considerable property of herown.
With regard to the pecuniary aspect of the wife to plaintiff,she has had little opportunity during her married life of showingany capacity as a housekeeper, although she has proved herbusiness capacity. With regard to the plaintiff’s loss of her comfortand society, it is quite clear that in spite of quarrels and unhappinessbetween them, the plaintiff admits he never had any cause at allto doubt her fidelity to him even up to April 11, 1923. On theother hand, she appears to have surrendered to the second defendant,and left the Island with him somewhat readily. She may, however,in some part have been caused to do so, owing to being left aloneat the hotel by her husband at a time when the old quarrels hadbroken out again, and he was further complaining of her “ gaddingabout all day long ” with the second defendant.
In a recent case, Eliyatamby v. Gabriel,1 the Court awardedRs. 5,000 as damages to the plaintiff from the second defendant.On the facts, that was a case in which aggravated damages werejustifiable. It is true, that on appeal, the Privy Council had on themain point found in favour of the second defendant, but thatdoes affect the point for which the case was cited, namely, thatassuming the circumstances where friendship was alleged to havebeen betrayed called for heavy damage, the Court held Rs. 5,000should, be awarded.
As I have stated, the learned trial Judge has not stated how hehas arrived at tht sum of Rs. 10,000 awarded. The plaintiff’sappeal that that sum should be increased has hardly been seriouslyargued. Having regard to all the circumstances to which I havereferred, and applying the principles set out in Butterumth v,Butterworth (supra), and in the cases and authorities therein cited,I am of opinion that the amount awarded by the trial Judge isexcessive, and that the sum of Rs. 2,500 adequately compensates
1925.
Dalton J.
De Silva v,De Silva
. 1 25 N. L. It. 373.
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Dalton 0.
De Silva v.Dt Silva
( 312 )
the plaintiff in respect of his claim for damages. I would thereforeallow that sum in lieu of the sum awarded in the lower Court.In coming to this conclusion I have had due regard to, but have beenunable to give effect to, the argument of Mr. Drieberg for the firstdefendant, that desertion by the plaintiff of hie wife had been proved.
I am unable to agree that the evidence supports that plea set upby the wife, and in my opinion the learned trial Judge was correctin his finding that no desertion by the plaintiff had been proved.
The further matters, the claim by the plaintiff for forfeitureby the first defendant of her property, and the claim by the firstdefendant either that there is no property liable to forfeiture orthat thp settlement ordered to be made from her property, can beconsidered together.
The marriage between the parties was on May 10. On May 8the father of the first defendant conveyed to her by deed (PI andP2) a property called “ Galle Face Cottage ” and a plantationnamed " Dicklanda West.” The deeds set out the intendedmarriage and state that <l in consideration of the said marriageand of the love and affection which he has and bears unto hisdaughter ” the properties are conveyed to the first defendantfor her own separate use and benefit, and free from the controldebts, liabilities, and engagements of her husband. In one deedhowever, in the case of the “ Galle Face Cottage ” property, it isprovided that if there be no children of the marriage to take, thenif the wife predeceased the husband, thu husband shall take a lifeinterest in that one property oniy. Subsequently (June, 1918) bydeed (P10) a property in Bagatelle road named “ Heatherley *’ wassubstituted for the " Galle Face Cottage ” property with thesame conditions attached to it.
In addition to these two properties first defendant receiveda sum of Rs. 50,000 as a wedding present from her father. Thisshe appears to have invested in the purchase of an estate named“ Wattegale.” Then in November, 1919, she bought anotherproperty in Nattandiya, to pay for which she raised Rs. 120,000 bya mortgage of Dicklanda West estate. This mortgage still exists,interest being payable on the mortgage at the rate of 9 per cent.
The plaintiff claims that by reason of her adultery, the firstdefendant has forfeited to him her rights to all these properties.This claim appears to me to be a most extraordinary one and theapparent faith of counsel in the justice of his claim, and the lengthof his argument in support of it was indeed too surprising. Timcontention put forward was that all this property came withinthe definition of dos or donatio propter nuptias. Numerous autho-rities were cited, Voet, Grotius, Van Leeuwen, Maasdorp, Pereira,Burgey and others, but I do not think that any useful purpose willbe served by any detailed reference to them here. The learnedtrial Judge has discussed the question of dos at length with due
( 313 )
reference to the authorities, and I entirely agree with bis conclusionthat none of the property conveyed to or held by the first defendantcomes within the term dos.
On the other hand, from the very terms of the two deeds (PIand P2), it is clear that the two properties therein mentioned wereconveyed to the first defendant in consideration of her marriageto plaintiff; they were gifts of property by father to daughteron account of her marriage, and so far are certainly in my opiniondonaiiones propter nuptias. That cannot however be said of theproperties purchased by the first defendant subsequently. Buton what principle does plaintiff now ask that these gifts be forfeitedto him ? It is clear from the deeds save with regard to a contingentlife interest in one case in his favour, that the donor was particularlyanxious to keep the properties out of his control. The law citedon his behalf has no regard, it seems to me, to the changes in theCommon Law which have been enacted in Ceylon. By OrdinanceNo. 15 of 1876 the previously existing law relating to the matrimonialrights of married persons with regard to property was amended,marriage in community of property was abolished in respect ofmarriages subsequent to that Ordinance, and in future the matri-monial rights of every husband and wife are to be governed by theprovisions of that Ordinance. A further Ordinance (No. 18 of1923) amending in certain respects the Ordinance of 1876, furtherconsolidates and amends the law relating to the property of marriedwomen. In addition the provisions of section 45 of 20 and 21Viet. c. 85, and section 5 of 22 and 23 Viet. c. 5 have been importedinto this Colony in sections 617 and 618 of the Civil ProcedureCode. It seems reasonable to presume that the enactment hereof the provisions was necessitated by the aforementioned changesin the Common Law. They are included in a Code of Civil Procedureit is true, but do not provide for mere matters of procedure only.
The changes enacted therefore have all been on the lines ofEnglish legislation. It has been pressed upon this Court that thislegislation must be interpreted in accordance with the principlesof Roman-Dutch Law, the Common Law of this Colony, and I donot hesitate to say that the task of the Courts is not an easy one,and it is one which I have not met now for the first time. Wherethe whole trend of legislation as here is to import, adapt, or followEnglish legislation, it necessarily follows that when the time comesto apply or interpret that legislation, difficulties arise in fittingit in with the CommonLaw. The legislation in its origin presupposesthe existence of English Common Law, and is probably a stepin the growth of one system of law from the earliest days. Whenenacted here, however, it is a graft upon a different stem, sometimesa matter of experiment with unforeseen results, whilst on occasionthe resulting growth is not easy to name, and is most difficult touse or apply*
1926.
Dalton J.
De Silva v.De Silva
( 314 )
Daltojc J.
2>e Silva v.De Silva
South African decisions are of some little assistance in this case,in spite of the inroads that have been made on the Common Law herefor they deal with claims for forfeiture under Roman-Dutch Law.Colliers v. Colliers1 deals with the forfeiture of the benefits resultingfrom the community following on marriage. From the judgmentof Solomon J., it would appear that in South Africa the forfeitureapplies, and applies only to the benefits that have accrued to theguilty party from the community, and not to the guilty party’sproperty. Mr. Jayewardene has argued that whatever the SouthAfrican practice may be, that case does not correctly apply theRoman-Dutch Law as laid down by Van Leeuwen and Van derKeessel. He refers to Mulder v, Mulder 2 in support of his con-tention. That case was considered but not followed in Celliers v.Celliers (supra), whilst so eminent an authority as Kotze J. showsthe absurdity of the principle of forfeiture upheld in Mulder v.Mulder (supra) in his judgment in Ferguson v. Ferguson1 2 Theabsurdity of that principle is apparent, it seems to me, in this casenow before us, as in the case of the millionaire referred to by Kotze J.although in a lesser degree.
No question arises here of forfeiture of the benefits derived byone spouse or the other from community following on a marriage.It is true that the two deeds referred to are gifts to the first defend-ant in consideration of marriage, but they are no more than a formof settlement which I understand now commonly obtains in Ceyloneither in this form, Le., a settlement by the parents on one of theparties to the marriage or upon both of them. A settlement ofthe latter kind was the subject of the action Valiammai v. Kanaga-ratnam4 decided by this Court as recently as September 11 last.It is not necessary to decide in this case what is the law in thisColony now, in respect of a settlement of property by one spouseon another, whether by means of a trust or otherwise, and whetherany question of forfeiture arises should the marriage be legallydissolved ; that the Court has power, however, to deal with sucha settlement is clear from the provisions of section 618 of theCivil Procedure Code.
Mr. Jayewardene has not satisfied me that in the circumstanceshere of this settlement by the father on the daughter, any rightof forfeiture exists in favour of the husband on dissolution of themarriage on account of the daughter’s adultery. None of theauthorities here cited in ray opinion support his contention. Hereferred to some local decisions, including Dondris v. Kudatchi (supra).That was a case of the dissolution of a marriage in communityof property and the question raised was as to the effect of thedivorce on the common property of the spouses. Other mattersare dealt with obiter in the judgment, but as regards donationsit would only appear to deal with donations between the spouses.
1(1904) T. S. 926.
22 S. A. B. 238.
*(1906)ED.C 218.* 27 N. L. B. 203.
( 315 )
The same remark applies to Phillips v. Phillips (supra). Thiscase appears to assume that a donatio propter nuptias is a settlementby the husband on the wife, a donation between the spouses, andnot by others.
As there is no community of property between the plaintiffand first defendant, and under the circumstances of the settlementof the property by deeds (PI and P2) on the first defendant, I amof opinion for the reasons I have stated above that no questionof forfeiture arises in respect of the first defendant’s property,as claimed by the plaintiff.
Holding however as I do, that the two deeds disclose a gift ordonation in consideration of marriage of property upon the wife,which is in effect a settlement upon her, the question arises whetherthe Court should exercise the powers given by sections 617 and 618of the Civil Procedure Code. The learned trial Judge has underthose powers directed a settlement in the plaintiff’s favour of thefirst defendant’s property to produce an income of Rs. 1,000 amonth for life. The remaining question raised on appeal is whetheror not that this is excessive. Mr. Drieberg, for the wife, has evengone further in his argument and urges that under the powersgiven by these sections, the Court can only deal with propertywhich is liable to forfeiture under the Common Law. If thereare no benefits arising out of the marriage or property forfeitableor to be forfeited, the argument is that, as the Common Law stillexists, these sections must be interpreted having in view, and subjectto the provisions of the Common Law in respect of forfeiture.I am unable to agree with his contentions. It seems to me thatthe words of that sections are both clear and explicit, and arenot capable of bearing the limitation which Mr. Drieberg seeks toplace upon them. (See also principle laid down in Trimble v. Hill(supra)). It is admitted that gifts of immovable property byparents on marriage as we have here are common in Ceylon, andmay be deemed to be the common local form of a settlement.Power is given to the Court to inquire into post-nuptial and ante-nuptial settlements. If it be necessary for the purpose of thiscase, to decide whether or not these deeds constitute a settlementor marriage, I would hold that they are in fact a settlement on themarriage of plaintiff and the first defendant. It is true that theyare for her separate use and without power of anticipation, but theCourt has power to vary settlements even with those limitationsunder section 618. The case of Loraine v. Loraine (supra) whichwas cited deals with property acquired by the wife by will, andnot by marriage settlement, and it was held there that life interestfor her separate use of property devised by the- will (as opposedto a marriage settlement), as to which she was restrained fromanticipation could not be varied by the Court on a petition for thehusband for a settlement under section 45 of the Divorce Act, 1857,which is section 617 of our Code.
1925.
Dalton J.
De Silva v.De Silva
1925.
Dalton J.
1= —
De Silva v.De Silva
( 316 )
Even if, however, there has been no settlement, and I do notthink it can be contended that there is anything in the nature of asettlement attaching to the two estates, Wattegala and Nattandiya,the Court can make such an order in respect of a property the wife isentitled to for the benefit of the husband as appears reasonable.
V.
In exercising the powers given to the Court, having in view thesource whence the legislation has been taken, it is proper to turnto English authorities to see upon what lines those powers havebeen exercised.
The first defendant is, judging from local standards, in affluentcircumstances. At the time of the marriage the families of bothhusband and wife are described as wealthy. When he was firstmarried plaintiff received from his parent Rs. 500 to Rs. 1,000a month. On the death of his father in 1916 his mother continuedto allow him Rs. 200 to Rs. 300 a month up to 1918. After thatall income from that source failed, owing to the insolvency of hisfather’s estate. His wife’s income is placed at Rs. 40,000 a year,of which she allowed him about Rs. 2,500 a year, out of whichhe paid most of the living expenses and hotel bills, and in additionsome of his wife’s shop bills. For his personal use he says he hadRs. 400 to Rs. 500 a month out of his wife’s income. He admitsshe treated him very generously. It is clear also that she wasa capable business woman, having retained all the property she hadon marriage and added to it, in spite of spending money freely duringtheir married life. Although plaintiff had no financial controlof his wife’s property, he appeals to have managed the estates ;hence it may be stated that he saved her some expenditure in thatway, which, but for him, she must have incurred by employing amanager. He admits that he is now free from that management,and is free to make a career for himself in business, in which he hasstarted, he says, successfully.
In the majority of cases cited in course of the arguments, thequestion of children have to be considered. Here there areno liabilities upon the plaintiff for the custody,* maintenance, oreducation of children. He is still a young man, and presumablycould still complete his medical education if he wished, although itappears he has chosen to go into business. At the time of themarriage he had considerable expectations from his own family,but they have now disappeared. The principles w'hich shouldguide the Court, whether acting under section 617 or 618, are setout in Hartopp v. Hartopp1 which is followed in Lorriman v. Lorriman (supra). The Court sbouldhave regard to the pecuniary positionthe husband would have been in if the marriage had not beendissolved, through the fault of the wife, and it should endeavourto adjust as far as possible and without following any hard andfast rule, any alteration in his pecuniary position by reason of the
P. alp. 72.
1926.
( 317 )
change in the circumstances due to his wife’s misconduct. In thelatter case Bucknill J. discusses Midwinter v. Midwinter (supra), andMarch, v. March (supra). In this last case the Judge Ordinary says—“ If this union has been broken and the common house abandonedby the criminality of one without fault in the other, itseems just that the innocent party should not, in additionto the grievous wrong by breach of the marriage vow bewholly deprived of means to the scale, of which he mayhave learnt to accommodate his mode of life.”
From Chetwynd v. Cheiwynd1 it is clear that the Court mustalso look at the conduct of the parties, and here it seems to me asI have pointed out above that the plaintiff cannot say that he isfree from fault. It has been urged that the marriage only lastedfor eight years, was hardly a happy one, and there was very littlehome life; such as it was, however, it has been broken up. Thenature of the wife’s property has also been referred to. Nattandiyais a rubber estate, and hence the income derived from it is said to beof uncertain amount and dependent on the price of rubber whichat present is high. Dicklanda is a valuable coconut property,but there is a mortgage for Rs. 120,000 upon it, with interestpayable at 9 per cent. The whole of the capital sum remains due,whilst the interest alone consumes a large part of the income ofthe first defendant. The question then arises should the sumallowed to the husband be fixed or variable. On this point I thinkMidwinter v. Midwinter (supra), supplies a useful guide. Theusual practice is to name a fixed amount, and here as there theplaintiff’s income from business is likely to be variable. Underthe circumstances, I think the usual practice should be followed.The Rs. 1,000 a month allowed by the trial Judge is in my opinioncertainly excessive ; in exercising his discretion in the matterI think he has lost sight of the large mortgage still existing, and theprobability that there may be a variation in the first defendant’sincome. Under all the circumstances, I consider plaintiff is entitledto a settlement out of the property to which the first defendantis entitled in the sum of Rs. 400 a month during their joint lives.In addition I would not interfere with or vary his life interest inthe property “ Heatherly ” under deed (P 10), which is contingent. on his surviving the first defendant. The matter should thereforebe sent back to the District Court for the parties to formulate ascheme for that Court’s approval on the lines of this decision.
With regard to the question of costs in the trial Court, I am ofopinion that, under the provisions of section 612 of the Civil Pro-cedure Code, the second defendant should have been ordered topay the whole of the plaintiff’s costs. Under the circumstances here,
I think the first defendant should pay her own costs. The decreeof the Court below should, in my opinion, be accordingly varied.
Dat/ton J.
De Silva v.De Silva'
i L. R. I. P. <fc D. 39.
1925.
Dalton J.
De Silva v.De Silva
With regard to the costs of appeal in the result, the plaintiffsappeal is dismissed with costs ; the appeals of the first and seconddefendants are allowed, as set put above. They are entitled totheir costs on appeal.
Decree varied.