KARUNANAYAKE v. KARUNANAYAKE

079-NLR-NLR-V-39-KARUNANAYAKE-v.-KARUNANAYAKE.pdf


Karunanayake v. Karunanayake.
275
1937
Present: Maartensz and Hearne JJ.
KARUNANAYAKE v. KARUNANAYAKE.
36—D. C. Galle, 34,107.
Divorce—Amount of alimony—Determination of alimony—Dissolution ofmarriage—Wife's right to recover dowry—Roman-Dutch law—Matri-monial Rights and Inheritance Ordinance, s. 19.
Permanent alimony granted to a wife on the dissolution of a marriageis, as a rule, larger than alimony pending the action which is fixed bysection 514 of the Civil Procedure Code at a sum not less than one-fifthof the husband’s average nett income for the three years preceding thedate of the ordet.
An order for the payment of permanent alimony should be made afterthe decree nisi dissolving the marriage is made absolute.
The amount of alimony may by consent of the parties be determinedbefore the decree absolute.
On the dissolution of a marriage between parties who are governedby the Matrimonial Rights and Inheritance Ordinance of 1876, thewife is not entitled to recover movable property given to her as dowry,which becomes the absolute property of the husband, under section 19of the Ordinance, unless the husband has contracted himself out of theprovisions of the section.
|HE plaintiff sued the defendant, her husband, for a dissolution of their
T marriage on the ground of his adultery, for the return of a sum ofRs. 6,550 given to him as dowry and for alimony of Rs. 300 a month.
The learned District Judge gave judgment for the plaintiff ordering adissolution of the marriage, condemned the defendant to pay her a sumof Rs. 5,000 as respecting her dowry and Rs. 225 per month as alimony.
Brooke-Elliot, K.C. (with him H. V. Perera, K.C., S. Nadesan,C. Seneviratne, and A. L. Jayasuriya), for defendant appellant.—TheRoman-Dutch law doctrine of forfeiture of benefits applied to those-benefits derived from the aggrieved party. Here therefore, the plaintiffcannot resist the defendant’s claim to the sum of Rs. 5,000 given asdowry to the defendant—vide de Silva v. de Silva which held that it wasjust the benefit derived from the other party that was forfeited. Herethe gift of Rs. 5,000 was by the parents in, consideration of the defendant’smarriage. Forfeiture applies only to gifts between the parties, as by thewife to the husband. The gift should be earmarked ; there should be-an intention to preserve the money or to convert it into some property.
A Court having matrimonial jurisdiction cannot try a claim for damages.for breach of trust.
As regards the quantum of alimony—vide Deane v. Deane- (one-fifthof husband’s income).
Apart from the question of damages, one is not vindictive in the grantof alimony.
R. L. Pereira, K.C. (with him E. G. P. Jayetilleke and Colvin R. de Silva),for plaintiff, respondent.—it is wrong to state that the quantum ofalimony should be one-fifth of the husband’s income. Vide Brown &
* 27 N. L. S. 289.* {1868) 4 Jurist N. S. 268.
276
Karunanayake v. Karunanayake.
Latey on Divorce, p. 160—Alimony pendente lite should be on the basisof one-fifth of joint income.— (The words in section 614 ofthe Oivil Procedure Code are:“In no case less than
one-fifth ”.) And permanent alimony is on the basis ofone-third of joint income. The Court has discretion to awarda larger or less sum. Vide Cooke v. Cooke1—where the joint income was£800 the Court awarded £400; also Smith v. Smith’—where again thealimony awarded was one-half of the joint income, £1,000 out of £2,000.Also Avilla v. Avilla8 ; Warren v. Warren *; Deane v. Deane (supra}.
Brooke-EUiot, K.C., in reply.—The English authorities show thatpermanent alimony can be one-half of the income. The words jointincome would mean that the husband is not to be unduly beggared.
[Maartensz J.—We desire to hear argument in this case on thefollowing questions which appear to arise from the proceedings, and whichwere not discussed when the appeal was argued on September 21 and 22 :
Whether in view of the provisions of section 615 of the CivilProcedure Code an order for the payment of permanent alimony can bemade before the decree nisi was made absolute as was done in this case.
Whether the provisions of section 19 of the Matrimonial RightsOrdinance, No. 15 of 1876, preclude the plaintiff from claiming restitutionof the sum of Rs. 5,000 which she alleges was given to the defendantas her “ dos ”.]
H. V. Perera, K.C., for appellant.—The order for forfeiture mustbe in respect of existing property. I need restore the money onlyif that money is available. The Rs. 5,000 could have dwindled downto Rs. 50. Can there then be an order for restoration as distinguishedfrom damages ? .
£MaaHtensz J.—Because you choose to spend the money, are you notbound to restore it ?']
Being movable property, it belongs to the husband—c.f. Nathan, vol. I.,paragraphs 420-98. Property given on her behalf is distinguished fromproperty given for her benefit.
Section 4 of Ordinance No. 18 of 1923 repeals section 19 of theMatrimonial Rights Ordinance. Forfeiture exists only if the fund exists.It must be possible to earmark the property.
R. L. Pereira, K.C., for respondent.—Section 19 of the MatrimonialRights. Ordinance has no application here. The words used are:“entitled at time of marriage or during marriage”. Vide judgment ofSchneider'J. in (de Silva v.de Silva*) regarding the scope of section 618.
Brooke-Elliot., K.C., in reply.—The Court has statutory powers, sec-tion 618, e.g., inquiry into an antenuptial settlement only after thedissolution of the marriage. Thus in this case the Court has no jurisdictionas the marriage was, at the date of the order, inforce till it wasdissolved. The marriage was dissolved long after the inquiry. In theAserappa v. Aserappa” case the defendant admitted the fact of jurisdic-tion and he was therefore estopped.
Cur. adv. vult.
1 (1812) 2 PhU. 40.*(1890) 63 L. Times 264.
* (1814) 2 Phil. 235.627 N. L. R. 289.
3 (1862) 31 i. J. P. M. and A. 176.*37 N. L. R. 372.
MAARTENSZ J.—Karunanayake v. Karunanayake.
277
October 13,1937. Maartensz J.—
The plaintiff in, this action sued the. defendant, her husband, for adissolution of their marriage on the ground of his adultery, for the returnof a sum of Rs. 6,550 given to him as dowry, and for alimony at the rate ofRs. 300 a month. She also prayed • that the defendant be ordered togive security for the due payment of the alimony.
The District Judge gave judgment for the plaintiff ordering a dissolu-tion of the marriage and condemned the defendant to pay her Rs. 5,000,Rs. 225 a month as alimony, and to hypothecate property to the value ofRs. 20,000 to secure the payment of the alimony.
The defendant-appellant contends in appeal that he is not liable toreturn the sum of Rs. 5,000, which was not given to him by way of dowrybut as a wedding present, that the amount fixed as alimony is excessive,and the'amount of security ordered beyond his means.
I shall first deal with the contention that the amount payable asalimony is excessive.
The District Judge assessed the appellant’s income at Rs. 5,600 a year,made up as follows : —
Rs. 3,600 a year, being salary payable to him, after deductions, asStation Master;
Rs. 1,200 a year derived by him from his properties planted with rubber ;
Rs. 600 a year from properties planted with coconut;
Rs. 200 a year being rent which he would receive if his ancestral homewas rented.
In determining the amount payable as alimony out of this income, theDistrict Judge took into consideration the misconduct of the appellant•and the unfounded allegations he made against his wife, the plaintiff.
It was urged (1) that the District Judge’s assessment of the incomederived by the appellant from his rubber and coconut properties, and theamount at which he considered the house could be let was incorrect;(2) that he was wrong in taking into consideration the defendant’smisconduct and his allegations against the plaintiff in determining theamount the appellant should pay by way of alimony.
The largest property planted with rubber is Medaheha, 27 acres inextent. According to the extract from the Register of Rubber Lands,the standard production for 1935 was 8,320 lb. and the exportable maxi-num 4,160 lb.
The defendant’s evidence is that he and his brother are entitled to 51per cent, of the exportable maximum, and that he gets coupons for1,591 lb. How the figure 1,591 is arrived at does not appear from theevidence. He produced five deeds D 12, D 13, D 14, D 15, and D 16, infavour of himself and his brother for 4/10 plus 1/12 of the land.
The rubber was planted by Robert Abeysinghe Gunasekere_under aplanting agreement No. 1,807 (D 17) by which the planter was to receivehalf the soil and plantation as planter. The planter assigned his interestsin the planting agreement to the defendant and another by deed
278
MAARTENsz J.—Karunanayake v. Karunanayake.
No. 14,632 (D 18), dated September 16, 1925. The defendant, accordingto these documents became entitled to a half share of the planter’sinterest and 29/60 of the land. Thus practically the whole of the rubberplantation vested in himself and the other grantee of 'the deed, of whichthe defendant was entitled to a half share.
These deeds were executed in favour of the defendant between theyears 1925 and 1929, and it would appear that he acquired all the planta-tions subsequently, for in the extract from the Rubber Register (P 10)he is described as the owner. The defendant’s explanation that heregistered himself as owner for the sake of convenience, and that he kepthis share of the coupons and handed over the others to his brother to bedistributed to the other co-owners is not supported by any receipts orentries in books of accounts; considering that coupons are valuabledocuments, I should have expected him to produce evidence of thatnature in support of his explanation. The defendant admitted he hadan account book which shows the amount spent by him on the land. Hehas not produced this account book. I think an inference adverse to hisexplanation can be deduced from the non-production of this book.
The defendant is admittedly the owner of the entirety of the other twolands planted with rubber. The extracts from the Rubber Register,P 9 and P 11, show that the exportable maximum is 1,588 and 650 lb. ofrubber. The exportable maximum of the three lands is 6,398 lb. ofrubber, the figure adopted by the District Judge.
The defendant asserted that he had three caretakers who were paidRs. 10, Rs. 15 and Rs. 15 a month respectively. With regard to the othertwo lands too he has an account book in which he has entered the expensesand income from the lands and which he has not chosen to produce, andthe same adverse inference can be drawn from their non-production.
I am of opinion that the defendant has not established that the DistrictJudge’s assessment of his income from the lands planted with rubber isincorrect.
As regards the land planted with coconut and the rental of the house,there was, no doubt, exaggeration on the part of the plaintiffs father whogave evidence as regards the income from these properties, and thedefendant, of course sought to minimize the income as much as possible.The defendant has certainly not been frank about his income ; for instance,when he gave evidence as regards his income at the inquiry held todetermine the amount he should pay as alimony pendente life, he saidPussellewatta is a bare land of 21 acres and that he got no income fromit. At the present inquiry he admitted that it was planted with 608trees.
As regards the house,'-the plaintiff’s fathe? said it could be rented atRs. 75 a month. The Vidane Arachchi, C. Ratnaweera, a witness for thedefence, said it could not be let for more than Rs. 10 a month.
The District Judge no doubt using his experience has assessed theincome derivable from the coconut properties and the house at a figurewhich he considered reasonable after considering the evidence led inthe case.
MAARTENSZ J.—Karunanayake v. Karunanayake.
279
I am unable to say that his assessment of the defendant’s income isexcessive.
As regards the sum which should be paid by way of alimony, theappellant’s Counsel submitted that there was a rule that it should. notexceed one-fifth of the husband’s income. I am not aware of such a rule.On the contrary the proviso to section 614 of the Civil Procedure Codeenacts that alimony pending the action shall in no case be less than one-fifthof the husband’s average net income for the three years next precedingthe date of the order. And the rule in England is that permanent, ali- .mony is always larger than alimony pendente lite. See Browne &Powles on Divorce, p. 139.
Some evidence was led as to what it would cost, the plaintiff to Jive inBalapitiya, and it was urged that on that evidence Rs. 75 a month wassufficient for the plaintiff to live on. I am unable to agree with thiscontention; there is no rule that a wife is only entitled to the leastamount on which she could live by way of alimony.
The defendant at page TO of the record has stated as follows :“ I
would estimate my monthly expenses at Rs. 200 to Rs. 250. I wouldconsider it an amount necessary for my wife as well”. I think thisevidence is a fair basis for estimating the amount of alimony the defendantshould pay the plaintiff. The District Judge’s estimate of Rs. .225 amonth is in my opinion too high, as it amounts to nearly fifty per cent,of the defendant’s income, part of which must fluctuate with the fluctua-tion of the price of rubber and coconut.
I am of opinion that the alimony should be reduced to Rs. 200 a month.
The decree ordered the defendant to pay the plaintiff permanentalimony from June 13, 1935, that is, from the date the action was filed.This order was clearly made per incuriam, for under the provisions ofsection 614 of the Civil Procedure Code, 1889, alimony, pendente lite ispayable until the decree is made absolute, and permanent alimonybecomes payable from that date.
Section 615 of the Code indicates that an order for the payment ofpermanent alimony should be made only after the decree nisi dissolvingthe marriage is made absolute.
As. this section was not referred to at the first hearing of the appeal, weheard Counsel on September 30 on the question whether an order for thepayment of permanent alimony could be made before the decree wasmade absolute.
The. appellant’s Counsel contended that the Court had no jurisdictionto make the order before the decree nisi was made absolute; and that• there must be a fresh inquiry and a fresh order made after the decree ismade absolute.
It would be most regrettable if we were constrained to uphold thiscontention. In my opinion we are not bound to do so.
The Court clearly determined the amount payable as permanent ali-mony, when it did, at the invitation of the parties, as one of the issuesagreed to was (7) What amount is plaintiff'entitled to as permanentalimony ? ” I can see no reason why the parties should not by consent39/23
280MAARTENSZ J.—Karunanayake v. Karunanayake.
have this question determined before the decree is made absolute. Itook this view in the case of Silva v. Silva et al., D. C. Colombo, No. 10,899,which I tried as District Judge. In that case I made an order under theprovisions of section 617 of the Civil Procedure Code before the decreewas made absolute at the invitation of the parties, although, as I pointedout in my judgment, such an order could properly be made only afterthe decree nisi was made absolute.
There was an appeal from this judgment, and my order under section617 was Varied as regards the amount of income I had ordered the firstdefendant to pay the plaintiff, but it was not set aside on the ground thatI had no jurisdiction to make the order.
As regards the property to be hypothecated as security for the paymentof alimony, the appellant complains that his property may not be worthRs. 20,000. Tp obviate the possibility I direct him to hypothecate assecurity the three lands planted with rubber, namely, Galpotta-ela-mamana, Medahena and Ketakellagahahena for the sum of Rs. 20,000.
The next question for decision-is whether the plaintiff is entitled torestitution of the sum of Rs. 5,000 which she claims was given by herfather on her behalf to the defendant as her dos. The defendant averredthat the sum of Rs. 5,000 was given to him as a wedding present.
The District Judge has held that the sum of Rs. 5,000 was dowryintended for the plaintiff, and I see no reaspn to dissent from his findingof fact.
Under the Roman-Dutch law “ ‘ dos ’ or dowry consists of the propertywhich is given by a wife or by some person on behalf of the wife to thehusband for the purpose of sustaining the burdens of marriage ” and“ included, in the. absence of proof to the contrary, all the property givento the husband for administration by the wife ” (Nathan’s Common Lawof South Africa, s. 420, pp. 266 and 267).
“ Where a marriage has taken place in community, the dowry or itsvalue must be brought into collation, for the purpose of ascertaining thesum total of the estate owned in community and dividing the same ”(Ibid, page 268).
The marriage in this case did not take place in community of propertyand the plaintiff would under the Roman-Dutch law be entitled to claimrestitution of the sum of Rs. 5,000. Nathan in section 505, page 317,commenting on Voet’s statement that the right to claim restitution ofthe dowry -may be forfeited by misconduct on the part of the wife, says :“ It is submitted, that if there is to be any restitution whatsoever of dotalproperty, it must proceed upon the supposition that it belongs to the wife,and not to the husband. Dotal property is not to be looked upon as abenefit arising out of the marriage, except in so far as, during marriage,the husband has the usufruct of the same ; and therefore a decree offorfeiture of benefits, following on divorce, given as against the guiltyspouse, should not deprive the wife of her total property, provided theparties are married out of community ”.
It appears to me from the above statement of the law that the right torestitution of the dos results from the fact that the dos is the property ofthe wife, and not of the husband.
MAARTENSZ J.—Karunanayake v. Karunanayake.
281
The Roman-Dutch law as regards the matrimonial rights of husbandanH wife in respect of property has been abrogated by the MatrimonialRights and Inheritance Ordinance, 1876.
Section 6 of this Ordinance enacts as follows : —“ The respective matri-monial rights of every husband and wife domiciled or resident in thisIsland, and married after the proclamation of this Ordinance, in, to, or inrespect of movable property shall, during the subsistence of such marriageand of such domicile or residence, be governed by the provisions of thisOrdinance
Sections 10 and 11 enact that the wages and earnings of a wife, herjewels, implements of trade and agriculture shall be deemed and takento be part of her separate estate.
Section 19 enacts as follows : —“ All movable property to which anywoman, married after the proclamation of this Ordinance, shall beentitled at the time of her marriage or may become entitled during hermarriage, shall, subject and without prejudice to any settlement affectingthe same, and except so far as is by this Ordinance otherwise provided,vest absolutely in her husband ”.
In terms of this section, if there was no settlement affecting it the sumof Rs. 5,000 became the absolute property of the defendant.
There was admittedly no settlement of this sum in writing.
The plaintiff’s father who provided the money stated : “ The Rs. 5,000was money given to my daughter for her upkeep. We handed it todefendant but it was meant for the upkeep of my daughter ”. Again hesaid: “ I gave that money to my daughter. I may have handed themoney to the defendant as it is the custom. Defendant had to preservethat money for the plaintiff ”.
Now if the Rs. 5,000 was money given to the daughter without referenceto her intended marriage, that money would on her marriage become theabsolute property of her husband in terms of the provisions of section 19of the Ordinance. I am unable to distinguish between such a gift and agift of Rs. 5,000 given to her as dowry in the absence of any agreementon the part of the intended husband that that sum should not become hisabsolute property on the marriage taking place.
I am accordingly of opinion that where movable property to whichsection 19 applies is given as dowry, that property becomes the absoluteproperty of the husband in the absence of any proof that he has contractedhimself out of the provisions of the section.
It is the custom in this Island to give a dowry to the wife. Money isalmost invariably a part of the dowry, and it is significant that this is thefirst case to my knowledge in which restitution of the dowry was claimed.
I am of opinion that the order of the District Judge directing thedefendant to pay the plaintiff the sum of Rs. 5,000 must be set aside.
The decree of the District Court is varied as follows : —
By the deletion of the order directing the defendant to pay the
plaintiff the sum of rupees five thousand (Rs. 5,000) given to heras dowry.
By substituting “ Rs. 200 ” for the sum of “ Rs. 225 ”, and the
words “ from the date the decree is made absolute ” for thewords “ from the 13th day of June, 1935 ”.
FERNANDO A.J.:—Tambiah v. Sangarajah.
‘282'
By substituting the words “ that the defendant shall within onemonth of the return of the record to the District Court enter intoa bond in the sum of Rs. 20,000 and hypothecate as security thelands called Galpotte-elamamana, Medahena and Ketakella-gahahena.
I would not interfere with the order of the District Judge as to costs.
There will be no costs of this appeal.
Hearne J.—1 agree.
Judgment varied.