Simon AppU v. Somawathie
1953Present: Swan J.
T). SIMON APPU, Appellant, and N. H. SOMAWATHIE,
S. C. SS9—M. C. Walasmulla, 12,676
Maintenance—Ostler of court in favour of wife—Subsequent covenant in a deed ofseparation—Effect thereof on maintenance suit—Maintenance Ordinance,S3. 'J, 5.
AVhero a mv cried woman obtains an order for maintenance against her husband,n subsequent deed of separation between thorn puts an end, in effect, to thowife’s rights and the husband’s liability under tho order. Tn such a case, thohusband would bo entitled to claim a cancellation of tho order under soclion 5of tho Maintenance Ordinance.
Parupathipillai v. Arumugam (1944) 46 N. L. Tt. 35, not followed.
PPEAT, from a judgment of the Magistrate’s Court, Walasmulla.l. II7. Jayeivardene, with P. Ranasinghe, for the defendant appellantsIvor Misso, with B. E. de Silva, for the applicant respondent.
Cur. ado. vult.
SWAN J.—Simon Appit v. Somawathie
December 7, 1953. Swan J.—
In this case the applicant-respondent obtained an order for maintenanceagainst her husband the defendant-appellant. The application wasmado in October, 1940. The defendant appearing on summons saidthat ho was willing to tako the applicant to his houso in Polhcnagt^lora.Tho applicant was willing to go with the defendant there, but apparent^’they could not live happily together. On 6.10-41 the applicant com-plained that the defendant’s mother assaulted her and drove her out.On the 5th of January, 1942, after inquiry, the learned Magistrate orderedtho defendant to pay tho applicant maintenance at Rs. 3 -50 per monthas from tho 1st February, 1942. On the 27th May, 1942, the applicantmoved for a distress warrant for Rs. 14 being maintenance for four months.There being no property available for seizure warrant was issued for thoarrest of the defendant. On 20- 9. 42 an open warrant was issued, butno steps were taken thereon. On 25. 2. 52 tho applicant moved for anotico on the defendant who, she said, was at the time residing atKirinda in Matara. As the defendant could not be found the courtissued a warrant on him. This too could not bo executed and on G- 12. 52tho court ordered an open warrant to issue. On 18. 12. 52 the defendantsurrendered to court and was ordered to give bail to appear on 16. 1.53.On that day he produced a deed of separation entered into betweenhimsolf and the applicant bearing No. 28760 and dated 23rd November,1945 (marked Dl). It was contended at the inquiry that the deed ofseparation terminated tho defendant’s liability to pay maintenance asordered by tho court. After inquiry the learned Magistrate held on theauthority of Pantpathipillai v. Kandiah Arumugam1 that tho agreementwas not binding on tho applicant. Giving tho defendant credit for thosum of Rs. 100 paid under Dl he ordered distress warrant to issue fortho balance duo, namely Rs. 302.
In tho case referred to above Jayetileke J. held that an agreementwhereby an applicant who had an order of maintenance in her favourand to whom a largo amount was duo as arrears accepted a lump sumand waived all future claims for maintenance was contrary topublic policy and should be set aside. The order was made of consent on18.11.1937 that the defendant should pay maintenance at Rs. G permensem. This was subsequently increased to Rs. 8. On 15.4.1943 thoapplicant moved for and obtained a distress warrant for Rs. 40 beingarrears for 5 months. On 14. 5. 43 the parties appeared in court and thelearned Magistrate mado the following entry in the record :—
“ Distress warrant twice returned by Fiscal unexecuted as respondentis not possessed of any movable property. Demand mado of him wasnot complied with. The respondent pays Rs. 200 in court. Theapplicant receives sarno waiving all future claims for maintenance againstthe respondent. The applicant signs the record. ”
It may appear to have been an unfair bargain but in my opinion itput an end, in effect, to the applicant’s rights and tho defendant’s liabilityunder tho order. If the applicant filed a fresh application thore can beno question that the compromise of 14. 5. 53 would have been no defence.
1 (1944) 46 N. L. R. 35.*
SWAN J.—Simon Appu v. Scmatoaihie
Let me now nyaminp the authorities upon which, the learned Judgebased Iris conclusion in Parupathipillai v. Kandiah Arumugam l. Thefirst case was that of Madduma Hamy v. Kalu Appu K In that caseClarence J. observed that an agreement in writing by which a wife agreedto relieve her husband of the burden of maintaining her and their childrenwas invalid. The charge was made under clause (3) sub-section (2) of■Ordinance 4 of 1841 and was dismissed by the Police Magistrate. Onappeal the order of dismissal was affirmed. In the course of his judgmentClarence J. said :—
'■ Such an agreement as this, between husband and wife, is invalid ;but nevertheless, if the defendant has been induced to abstain fromaffording due support to the complainant and their children by a beliefthat this agreement exonerated him from liability so to do, he oughtnot to be criminally convicted on this charge. ”
Xakamutku. v. Kanthan 3 was a case under the Maintenance Ordinance,11) of 1889. There the defendant sought to escape liability by relying onan agreement whereby the applicant had accepted a sum of Rs. 50 asmaintenance for herself and her child during their lifetime. Grenier A. J.described tho agreement as an unconscionable bargain. Undoubtedlyit was. It certainly could not defeat the application for maintenance.
In Ilinnihamy v. Gunawardene 4 the applicant had obtained an orderof maintenance for herself and five children. Subsequently tho defen-dant applied to the Magistrate and obtained his sanction to pay theapplicant a sum of Rs. 250 in full discharge of the maintenance payabloby him. Sometime later the applicant applied again for an order ofmaintenance. Tho Magistrate who entortained that application tookthe view that the compromise did not relieve the defendant of his obliga-tion and ordered him to pay. De Sampayo J. in affirming that ordersaid :—.
The Ordinance does not contemplate the settlement of a lumpsum. It only provides for making a ‘ monthly allowance ’. Thopayment of a lump sum may, of course, negative the basis of the appli-cation, namely, that the father neglects or refuses to maintain hischildren. But in such a case the money should be so settled as toensure tho continued maintenance of the children. But in this casetho income to be derived from Rs. 250 is by no means sufficient tomaintain five children. It was never invested or socured. Thomother appears to have exhausted it and the children are presumablyleft once more without maintenance …. The appellantrelics on the circumstances that the court had sanctioned tho com-promise in t.lii j, but I do not think it makes any material difference. ”
What I wish to emphasize is that (1) it was a fresh application and (2)the original application was for the maintenance of illegitimate children.Regarding the latter there can be no question that a woman cannot by
1 (1014) 46 y.L.B. 35.
– (1880) 3 .S'. a. C. 132.
(1908) 1 S. C. T). 48.(1921) 3 C. L. Rec. 161.
SWAN J.—Simon Appu v. Somawathie
the acceptance of a lump sum compromise the claim for maintenanceof her children legitimate or illegitimate. As regards the former I wouldsay that in a fresh application entirely new matters arise for considerationand decision. I must, however, state that the point was taken that theapplicant should not have filed another case but applied for relief in thefirst action. Do Sampayo J. dealing with this submission said “ that maybe so With due deference to that most learned Judge I say that couldnot bo so.
In Hyman v. Hyman 1 the House of Lords held that a wife who cove-nanted by a deed of separation not to take proceedings against herhusband to allow her alimony or maintenance beyond the provisionmade for by the deed and thereafter obtained a decree for dissolution ofthe marriage on the ground of her husband’s adultery was not precludedby hor covenant from petitioning the court for permanent maintenance.It was entirely a question of the jurisdiction of the court, whether itcould be ousted by the covenants in a deed of separation.
Referring t o deeds of separation Lord Atkin said :—
“ Wo have to deal with a separation deed, a class of documentwhich has had a chequered career at law. Not recognized by theEcclesiastical Courts, such contracts were enforced by the commonlaw. Equity at first frowned. Lord Eldon doubted but enforcedthem. Finally they were fully recognized in equity …. Fulleffect has therefore to be given in all Courts to theso contracts as t<>all other contracts. It seems not out of place to mako this obviousreflection, for a perusal of some of the cases in the matrimonial courtssoems to suggest that at times they are still looked at askance andenforced grudgingly. But there is no caste in contracts. Agreementsfor separation are formed, construed and dissolved, and to be enforcedon procisoly the same principles as any respectable commercial agree-ment of whoso nature indeed they sometimes partake. As in othercontracts stipulations will not be enforced which are illegal either asbeing opposed to positive law' or public policy. But this is commonattribute of all contracts, though we may recognize that the subject-matter of separation agreements may bring them more than othersinto relation with questions of public policy. ”
The Roman Dutch Law recognizes the validity of deeds of separation.Thoro are two cases in which our courts have considered agreements byspouses to livo in separation. In Mitcho Hamine v. Girigoris Appu -Wood Benton J. said :—
I do not think that there is anything contrary to public policyunder our law in a husband and wife agreeing to livo separately wherethoy find that it is impossible for thorn to live happily together and.in my opinion, such a case comes under Section 5 of tho MaintenanceOrdinance 1880…. ” *
’ (1929) A. C. r,nt.
* (’912) 10 X. L. li. 191.
SWAN J.—Sit non Appu v. Somawathie
In Silva v. Silva 1 Pereira and Shaw JJ. held that an agreement betweenhusband and wife for a separation a mensa et thoro and for payment bythe husband to the wife of a monthly allowance was enforceable but thatit was terminable at the will and option of either party.
The question to determine is the effect of such an agreement upon asuit for maintenance. If an order is made I would say that the defendantwould be entitled to claim a cancellation of the order under Section 5which provides :—
“ On proof that any wife in whose favour an order has been madeunder Section 2 is living in adultery, or that without sufficient reasonshe refuses to live with her husband, or that they 'are living separatelyby mutual consent, the Magistrate shall cancel the order. ”
If no order has been made the fact that there exists a deed of separationwhich is being honoured by the husband would not oust the jurisdictionof the court to entertain the application and make an order. In decidingwhether an order should be made the court would have to consider :—
whether in fact the spouses are living apart by mutual consent.
Authority for this proposition will be found in Mitcho Haminer. Cirigoris Appu 2 and Maliappa Ghetty v. Maliappa 3.
whether the provision made in the agreement is reasonable and
In Hyman v. Hyman * Lord Hailsham L.C. observed :—
“ It may very well be that when the facts come to be investigated,the Court will say tliat a sum of this magnitude, so secured, voluntarilyaccepted as a sufficient maintenance ten years ago, and faithfullypaid ever since, is a sufficient provision, and that the Court will notdeem it to lie reasonable to order any further payment to be made.”
As regards the point that arises for decision in this case I hold thatthe deed of separation extinguished the applicant’s right and terminatedtlio defendant’s liability under the order made, and that the learnedMagistrate should have given effect to it by refusing the applicant’sapplication for a distress warrant. Acting on the principle that anorder could bo made nunc pro tunc he should have cancelled the orderus from 3.11.19-15 and directed the applicant to file a fresh application,if so advised.
Learned Counsel for the respondent contended that D1 was an un-conscionable bargain. I do not think so. Assuming-that on 3.11.1915more money was due to the applicant under the order than she receivedunder D1 it was perfectly legitimate for the defendant to pay and forher to accept a smaller sum in full settlement. As regards the waiverof future maintenance the fact that the parties decided to live in separation
1 (191-1) IS X. L. R. 26.
* (1912) 15 X.L.It. 191
3 (1927) 29 N. L. R. 78.•(1929) A. C. 601
Wickreiruunnghe v. Abdul Baheem
by mutual consent as from that date is a good causa or considerationfor the agreement which, however, would as laid down in Silva v. Silva 1be terminable at the option of either party. Until so terminated itwould be enforceable. In my opinion to allow the applicant to obtainpayment for a period when she was living in separation from the defen-dant by mutual consent is without question unconscionable.
The only other matter that calls for comment is the fact that therewas no formal cancellation of the order. In Kadiravail Wadivel v.Sandanem2 where after an order was made the parties lived again to-gether (which fact the court recorded) Akbar J. said that inasmuch asthere was no cancellation of the order the applicant could enforce it.The point to note is that the applicant did not seek to obtain paymentfor the period during which she was living apart from her husband.
In this present case there was no cancellation of the order, but Ido not think that could stand in the way of giving effect to the deed Dl.It would be artificial to contend that because the order was not formallycancelled a right that had been extinguished could be revived and aliability that had been terminated could be enforced.
The order made by the learned Magistrate is set aside. Theappellant will be entitled to the costs of this appeal.
D. SIMON APPU, Appellant, and N. H . SOMAWATHIE, Respondent
Simon AppU v. Somawathie