054-NLR-NLR-V-05-LEMPHERS-v.-ANTHONY-APPUHAMY.pdf
( 181 )
LEMPHEBS v. ANTHONY APPUHAMY.D. C., GaUe, 12,m.
1901.
July 30 andAvgust 6.
Divorced wife—Action against tier former husband for delivery of separateestate—Civil Procedure Code, s. 34—Cause of action.
Per Lawrib, A.C.J., and Moncbbiff, J.—The claim of a divorcedwife against her husband for the delivery of her separate property maybe made in an action other than the divorce suit, because such claim isnot, in the words of section 34 of the Civil Procedure Code, inrespect of the cause of action which was concerned in the divorce suit.
T
HIS was ail action brought by a woman, who had beendivorced, against her former husband for the recovery of
certain money and other movable property given to her by her
parents as dowry, and alleged to be unlawfully detained by him.The District Judge dismissed the action on the ground that this.claim should have been presented for adjudication in the divorce.suit under section 34 of the Procedure Code, and could not formthe subject of a separate action.
riaintiff appealed.
Wendt, for appellant—The action has been prematurely dis-missed. The issues raised by – the pleadings were whether thedefendant was bound by the decree of divorce, inasmuch as hehad no opportunity of being heard at the trial; and whetherplaintiff could recover in this suit what she could have done inthe divorce case. Section 84 of the Code does not apply, becausethe wife’s claim in regard to her separate property could notarise until after the marriage had been dissolved.
Van Langenberg. for the respondent.—This is dowry property.Section .618 of the Code gives the Court power to ordervthe wife’sproperty to be given in the divorce case. A claim should have beenexpressly made in that case. The plaintiff did not do so then,and section 34 forbids its being done in any but the first suit.Otherwise it means that in every divorce case the Court of itsown motion must determine the extent of, and the parties right to,the matrimonial property. Section 618 says that “ the Courtmay inquire ”. This is merely a power to be exercised on dueapplication. Was it impossible to have added a prayer in thedivorce plaint asking for a division of this property ? If plaintiffcould not have made it, then c-adit quaestio. Form 97 shows the
( 182 )
1901. form of decree in the divorce case. It is a comprehensive decreejxHy 30 and embracing several points in dispute between husband and wife.
Avgvgt 5. an(j the words et cetera take in other causes of dispute.
Wendt.—Under section 34 plaintiff can sue in respect of thesame cause of action. Adultery is one cause of action, but deten-tion of property is another cause of action.
Cur. adv. vult.
5th August, 1901. Lawrie, A.C.J.—
The law of communio bononim deprived either spouse fronthaving a separate estate. So long as the marriage subsisted,neither had a right to sue the other for the goods in community.
The Ordinance No. 15 of 1876 recognizes the right of a wife to aseparate estate, and I think it follows that she may sue even herhusband for. restoration or delivery to her of that estate. I do notsee that her claim for delivery to her of her jewellery dependedon her success in the action for divorce.
The plaintiff doubtless could have joined this cause of. action,viz., the illegal, detention of her separate estate, with the othercause of action, the adultery and cruelty of her husband, but asthese are distinct causes of action, the 34th section of the Codedoes not (in my opinion), apply.
I would sustain the competency of the action and remit forfurther procedure. Defendant to pay costs of the appeal.
MfoNCRElFF. J.—
In 1898 the plaintiff obtained a decree for a divorce a vinculamatrimonii, and her decree was made absolute in 1899. She nowsues for the return of property, consisting of jewellery, brassornaments, and Rs. 140 cash, which, according to the plaint, was“ given to the plaintiff and defendant as dowry by plaintiff’sparents ”.
If I had been satisfied that, the cause of action becamedefinitive upon the decree of divorce, I should have hesitated tosay that the claim was not part of the “ whole claim ”, which theplaintiff was entitled to make “ in respect of the cause of action ”,upon which she obtained a decree absolute for a divorce. Theclaim might have beeu touched by section 34 of the CivilProcedure Code. But in her evidence she speaks of the propertyas her own, and I think it was by virtue of Ordinance No. 15 of 1876part of her separate estate. It does not appear, therefore, that theclaim is in respect of the cause of action in the proceedings fordivorce. I agree in the conclusion of the Chief Justice.