100-NLR-NLR-V-42-KARUNAWATHIE-v.-WIMALASURIA.pdf
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KEUNEMAN J. Karunavoathie v. Wimalasuria
1941Present: Keuneman and de Kretser JJ.
KARUNAWATHIE v. WIMALASURIA66—D. C. Colombo, 9,734
Breach of promise of marriage—Agreement in writing alone—No resort to oral
evidence—Marriage Registration Ordinance (Cap. 95), s. 19 (3) Proviso.
An agreement in writing in order to support an action to recoverdamages for breach of promise to marry must be evidenced in writingand writing alone.
It is not sufficient that the document in the light of oral evidence bearsa promise to marry.
Jayesinghe v. Per era (9 N. L. R. 62), distinguished.
^^•PPEAL from a judgment of the District Judge of Colombo.
H. V. Perera, K.C. (with him G. P. J. Kurukulasuriya), for defendant,appellant.-
N. Nadarajah (with him C. T. Olegasegaram), for plaintiff, respondent.
.Cur. adv. vult.
July 1, 1941. Keuneman J.—
The plaintiff brought this action against the defendant claimingdamages for breach of promise of marriage, and seduction. The DistrictJudge found in her favour on both grounds, and awarded damages ofRs. 1,000 for breach of promise, and Rs. 1,000 for seduction. Thedefendant appeals from this judgment.
As regards the seduction, the evidence of the plaintiff has been corro-borated, and in fact to a great extent admitted by the defendant. The
KEUNEMAN J.—Karunavoathie v. Wimalasuriya
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defendant attempted to prove that the plaintiff was not a virgo Intacta,but this attempt failed completely. The appeal as regards damagesawarded on this ground cannot be sustained.
The defendant also contended that the plaintiff had failed to prove thatthere was a promise of marriage in writing as required under Chapter 95,section 19, and that no damages could be awarded for a breach of thepromise.
Several letters between the parties have been put in evidence, and itseems clear that from an early stage, the plaintiff and the defendant hadgenuinely fallen in love with each other. The plaintiff herself was- clearlyof opinion that their position should be regularised by the defendantgiving her a promise of marriage in writing and on more than one occasionshe requested the defendant to do so. This promise the defendant wasreluctant to give, and he explained to her the reason why he did not do so.In P 4, probably written in March, 1938, after saying that he could notremain without seeing the plaintiff even at a distance, the defendantexplained “ I am not a free person. There are many to govern me.Cannot do what I wish in any manner. Therefore Darling should notmisunderstand me ”, but added “ you are my only love ”. D 1, bearingdate March 19, 1938, appears to be the plaintiff’s reply to P 4. In D 1,the plaintiff proceeded to give instances from ancient history to showthat for love persons of high position had sacrificed everything, andprinces and Brahmins had married Chandala girls. The reply to D 1appears to be P 6. In P 6 the defendant begins his letter by saying “ Ithink it is important that we, being Sinhalese Buddhists, should, unlikepersons of other communities, not hurt the feelings of our parents whobrought us up and be obedient to them. It is our duty more especiallyif they are aged persons. Darling will agree with me in regard to this ”.He then proceeded to approve the cases cited by the plaintiff from ancienthistory, and to cap them with a more modern example, and added “ Iagree to everything which you have mentioned ”. I have dealt morefully with these letters, because the plaintiff now contends that theycontain the promise to marry in writing. I cannot so read them.Undoubtedly the defendant approved of the noble examples which hadbeen mentioned, and accepted the arguments which plaintiff urged, butit is clear that he was not willing to give a promise of marriage, becausehe thought he would hurt the feelings of his parents, who “ govern ” him.Further the plaintiff does not appear to have regarded these letters as apromise of marriage. In D 3 written shortly before the Sinhalese NewYear (April 13, 1938), the plaintiff asked for “ an agreement or writingstating that you will marry none but me ”, and promised to give a similarwriting. In D 5, also written about this time, she reiterated her requestfor this agreement.
In the next month, on Wesak day, i.e., May 13, 1938, the plaintiff andthe defendant with some others went on an excursion to the KelaniyaTemple, and afterwards had refreshments at the Maliban Hotel. It is inevidence that on this occasion they kissed each other and that thedefendant verbally agreed to marry plaintiff. This evidence has beenaccepted by the Judge, I think correctly. Shortly- after this, the defend-ant wrote letter P 3 in which he said “Darling the enjoyment we had
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KEUNEMAN J.—Karunawathie v. Wimalasuriya
by meeting each other^on that day was immense, was it not? ….The love which was confirmed on the 13th has become firmer and notcooler. When I remember how on that day I sucked honey from yourlips and how the deliciousness of your lips ran through my veins, my heartand body both get roused and awakened alike ”. The defendant thenexpresses his gratitude to a girl friend of the plaintiff. “ Had it not beenfor her assistance we would not have been able to come to this stage norwould there have been a way to confirm our love ”.
Thf plaintiff contends that the “ confirmation of love ” referred to isthe promise of marriage I have mentioned. The defendant argues thatthe “ confirmation ” consists of the kisses exchanged between the parties.It is perhaps a question of doubt as to which was actually referred to by ‘the defendant. But even if the plaintiff’s contention is correct, it has tobe remembered that the document itself does not contain the promise ofmarriage in writing, but the document as interpreted in the light of theoral evidence may perhaps bear that meaning. I do not think this issufficient to satisfy the requirements of the law. I think the law requiresthat the promise to marry must be evidenced in writing, and in writingalone.
Great reliance was placed by the plaintiff on the case of Jayesinghe v.Per era', but that case can be differentiated. The plaintiff in that casewrote a letter to the defendant asking for a written record of his verbalpromise to marry. This was done at the suggestion of the plaintiff’sfather. The defendant replied by letter that he was not agreeable to thesuggestion, that if he trusted the plaintiff, she should- in turn trust him,if her parents had no faith in his word, he could not help it, if they did notbelieve his word, he was not to blame. It is true that the plaintiff’s letterwas not produced, but as it was in the possession of the defendant,secondary evidence was given of its contents. In deciding the caseWendt J. said, “ So read in connection with the letter to which it Was ananswer, the letter contains an unqualified admission under the hand of thedefendant of the existence of his promise to marry the plaintiff, and inmy opinion that is all the Ordinance requires ”. Layard C.J. was alsoof the opinion that the two letters read in conjunction established thepromise to marry.
This Kcase has subsequently been subjected to considerable criticism,but-it was later supported in Misi Nona v. Amolis by Lascelles J. onthe ground that the letters in question amounted to “ a repetition inwriting of a prior verbal promise ”. I incline to the opinion that this is abetter view, than that of Wendt J. who merely stated-that it was anadmission of a verbal promise.
But whatever the correct point of view may be, in this case ofJayesinghe v. Perera (.supra) the whole of the promise was contained intwo letters. There was no resort to verbal evidence as such, to establishthe promise.
I may mention that in the view of Lascelles C.J. the principle on whichJayesinghe v. Perera (supra) was decided cannot be carried further“ without straining the language of the Ordinance to breaking point ”.
1 0 N. L. R. 62.* 17 N. L. R. 425
Noordeen v.- Badoordeen
393
I do not think this case falls within the principle of Jayesinghe v. Perera.The plaintiff’s action with regard to the breach of promise of marriagefails, and she is not entitled to damages on that account.
In the result, the judgment of the District Judge is set aside, andjudgment entered for the plaintiff in the sum of Rs. 1,000, namely, for theseduction. The plaintiff is entitled to costs in the Court below. Inappeal the defendant has succeeded on one point but failed in the otherand, in the circumstances of the case, I make no order with regard to the
costs of appeal.de Kretseb J.—I agree.
Varied.