106-NLR-NLR-V-71-N.-J.-CANEKERATNE-Appellant-and-R.-M.-D.-CANEKERATNE-Respondent.pdf
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T. S. FERNANDO, J.—Canekeratne v. Canekeratne
1968Present: T. S. Fernando, J., and Alles, J.
N. J. CANEKERATNE, Appollant, and
R.M. D. CANEKERATNE, Rospondont
S.C. 332)64—D. C. Colombo, 58606JM
Husband and wife—Matrimonial home—Right of deserted wife to remain in occupationof it—Prevention of Frauds Ordinance {Gap. 70), s. 2
A wife who has been deserted by her husband is not liable to bo ejected by herhusband from the matrimonial home (unless alternative accommodation orsubstantial maintenance to go and live elsewhere is offered to her).
A.PPEAL from a judgment of the District Court, Colombo.
C. Thiagalingam, Q.C., with P. N. Wikramanayake and P. Edussuriya,for the plaintiff-appellant.
Miss Maureen Seneviratne, with Clarence Fernando, for the defendant-respondent.
Cur. adv. vult.
February 17, 1968. T. S. Feknando, J.—
The appellant married the respondent in the year 1960 and theyappear to have lived together till December 1954 when they separated,and the appellant left the matrimonial home which at the time he wasleaving was the fiat from which he seeks in these proceedings to ejectthe respondent. The parties appear to have moved into this flat aboutJune 1953.
A divorce action in which both husband and wife were claiming adivorce from each other was filed by the appellant in March 1956, andthat action was eventually decided in the District Court on 20th December1962 with the entering of a decree nisi in favour of the respondent.Decree absolute could therefore not have been entered before 20thMarch 1963. The appellant filed an appeal against the judgment of theDistrict Court granting decree nisi, an appeal that was finally disposedof only sometime in 1967.
The action we are concerned with on this appeal was instituted bythe appellant on 20th February 1963, and in the plaint filed by him onthat day he alleged that the respondent occupied the flat in question—(the appellant is the owner of the flat)—with his leave and licence.On 29th December 1962 he had given her notice to quit the flat and
T. S. FERNANDO, J.—Canekeratne v. Ccmekeratne523
prayed in the action for her ejectment with damages at the .rate ofRs. 600 per mensem which he alleged was the reasonable rent therefor.The loomed trial judgo has hold that on the date of tho notico to quitas well as on tho date of the institution of this action the divorco actionwas ponding — indeed it was tho appellant himself who had presentedthe appeal against the judgment of tho District Court — and thereforethe parties woro then still husband and wifo in law, and that tho actionso filed was not maintainable. Wo are in complete agreomont with .thatviow of the learned judgo, and indeed appellant’s counsel was constrainedto abandon an argumont to the contrary ho had begun to outline inthis court.
Somo argument was addressed to us as to whether a dosortod wifehas an irrevocable licenco to romain in occupation of the matrimonialhomo or whether she is only a contractual liconseo, and it was pointedout to us that certain English cases relied on by the respondent hadrecently boen overruled by tho House of Lords in National ProvincialBank Ltd. v. Ainsworth1, but wo need not ontor hore upon an examinationof a deserted wife’s right under tho English law to occupation of thematrimonial homo as against , third parties. It is sufficient to say thatunder tho Roman-Dutch law the husband, by reason of his duty ofsupport, has to provide his wife with accommodation, food, clothing,medical attention, and whatever else she reasonably requires. ProfessorHahlo in his treatise “ The South African Law of Husband and Wife ”—(2nd ed., 1963, at p: 101)—states : “ The husband’s duty to support hiswife does not necessarily come to an end if the joint household breaks .up. On the principle that no one can escape his legal obligations by hisown wrongdoing, the husband’s duty of support continues if the separationwas due to his fault—-he deserted his wife without just cause or droveher away by his misconduct.”
Mr. Thiagalingam referred to a certain issuq_ raised in the course ofthe trial relating to the effect of section 2 of the Prevention of FraudsOrdinance (Cap. 70) upon the wife’s claim to remain in the flat, andcontended that the upholding of her claim may involve a recognitionof a new kind of land tenure in; this Country. I do not think that theupholding of a deserted wife’s right to remain in the matrimonial homeunless alternative accommodation or substantial maintenance to goand live elsewhere is offered to her means establishing any such tenure.
I need only refer to certain observations made by Lord Upjohn in thecase to which I have referred above — see page 485 — as to the, positionof the wife in relation to her matrimonial home. “ A wife does not remain,lawfully in the matrimonial home by leave or licence of her husbandas the owner of the property. She remains there because, as a result ofthe status of marriage, it is her right and duty so to do and, if her husbandfails in his duty to remain there, that cannot affect her right to do so.She is not a trespasser, she is not a licensee of her husband, she is lawfullythere as a wife, the situation is one eui generis. She may be described asa licensee if that word means no more than one who is lawfully present,
» (1965) 2 A. E.B. 472.
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WUAYATILAKE, J.—JaycUisaa v. Ebert Silva
but it is objectionable for the description of anyone as a licensee at onceconjures up the notion of a licensor, which her deserting husband mostemphatically is not.”
Certain other arguments were addressed to us bearing on the questions :(1) whether in an action for recovery of immovable property a claim torecover movables can be added and (2) whether on a decree grantinga divorce or a separation the wife can be granted a right to receive alimony.These questions involve the interpretation of sections 35 and 615respectively of the Civil Procedure Code. We do not propose on thisappeal to examine these arguments as in regard to (1) the inclusion ofthe claim to recover movables was the act of the husband himself and inregard to (2) the question is one which should have been raised in thedivorce case if it was ever intended seriously to pursue it.
For reasons briefly outlined above we have dismissed the appeal withcosts.
Alles, J.—I agree.
Appeal dismissed.