WICKREMASINGHE AND OTHERS
COURT OF APPEAL.
DE SILVA. J..WEERASURIYA. J.
D.C. KANDY 971/D.
19th MAY. 1999.
29th JUNE. 1999.
14™ OCTOBER. 1999.29™ NOVEMBER. 1999.
Matrimonial Action – Divorce granted – Alimony and damages awarded -Appeal lodged – Respondent dies – Testamentary proceedings – Executorclaimed the sum as part of the estate of the deceased.
The Plaintiff Petitioner sought a Divorce from his wife the DefendantRespondent on the ground of constructive malicious desertion. TheDefendant Respondent (wife) filed answer alleging adultery and statedthat the Petitioner was living in open adultery with Lhe 2"d Respondentand counter sued for divorce on the ground of adultery and desertion.She claimed permanent alimony, damages and several other reliefs.
After trial the Defendant Respondent was granted the Divorce, and wasawarded Rs. 100,000/= as permanent alimony, Rs. 500.000/= onaccount of the 1st Defendant's house which the Plaintiff Petitioner hadsold and taken the money; the Plaintiff Petitioner was also asked toreturn Rs. 30.000/= the dowry money with accrued interest and a sumof Rs. 1000,000/= has been awarded as damages against the 2"dDefendant.
The Plaintiff Petitioner and the 2nd Defendant appealed against the saidJudgment, and while the appeals were pending, the Is' Defendant -Respondent died, and the appeals were abated.
While the said appeals were pending the lsl Defendant (wife) made anapplication to the District Court of Kandy for sequestration of a sum ofRs. 1,618,709.46 out of Rs. 4,00000/= which the plaintiff Petitionerhad deposited with a Finance Company. The said sum was seized and
DeAlwis v. Wickremasinghe and Others
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brought to the credit of the case. After the death of the 1st Respondent(wife) the Plaintiff Petitioner made an application seeking an order thatthe said sum of Rs. 1,618,709.46 should be released to the Petitioner.The Executor intervened and resisted. The District Court held that theExecutor could not intervene in the Divorce case.
The District Court held that the said sum had become part of the estateof the deceased. However Court directed the Executor to obtain an orderin the Testamentary case to have the money credited within one month.
On Appeal –
Where one of the spouses dies after a decree of divorce has beenentered and while the appeal against the decree is pending, the appealfalls away and the decree stands, but the surviving spouse or theexecutor may continue the appeal if this is necessary in order to have theproperty rights of the spouses and their heirs determined.
In this case, a decree for divorce and a decree for payment of moneywere made against the Petitioner. The decree for money is under severalheads – permanent alimony, monies taken from the 1st Defendant'sSavings Account, payment in respect of Is1 Defendant's house, which hadbeen sold and money taken by the Petitioner.
Where alimony is concerned, it is purely a personal right whichsubsists only so far as the wife is entitled to support. It ceases on herdemise. The claim to alimony being of a personal nature extinguisheswith the death of the wife, and the decree for alimony ceased to beexecutable.
Apart from the alimony ordered the rest of the money forms part ofthe estate of the deceased and should be remitted to the testamentary
APPLICATION in Revision against the order of the District Court ofKandy.
Faiz Musthapha P.C., with H. Wilhanachchi for Petitioner.
P.A.D. Samarasekera, P.C., with Ms K. Wyetunge for the. Respondent.
Cur. adu. vult.
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February 25, 2000.
DE SILVA, J.
This is an application to revise two orders dated 22. 03.1996 and 23. 05. 1996 made by the Learned AdditionalDistrict Judge Kandy wherein she has held that the sumdeposited in the divorce case had become part of the estate ofthe deceased now being administered in the District Court ofGalle. She further held that the executor, Srinath AsokaWickremasinghe, could not intervene in the divorce case andunless the executor took steps to obtain an order in thetestamentary action to have the money credited within onemonth, the petitioner would be entitled to withdraw the same.
The petitioner filed action bearing D.C. Kandy No. 971 /Dto obtain a divorce from his wife Shanthilini Jayashri de Alwis(nee Wickramasinghe) and seeking custody of two children ofthe marriage. The basis of the said action was that the wifetreated the petitioner with such contempt and cruelty that hewas compelled to leave the matrimonial home. The wife (whowill be referred to as the 1st defendant) filed answer allegingthat the said plaintiff had committed adultery and was livingin open adultery with one Carolyne Rainer who was added asthe 2"d defendant in the divorce case and counter sued thepetitioner for divorce both on the ground of adultery anddesertion. She also claimed permanent alimony in a sum ofRs. 1,000,000/= and several other reliefs. She also claimeddamages in a sum of Rs. 1,000,000/= from the addeddefendant.
After trial the learned Additional District Judge deliveredjudgment on 29. 03. 1993 holding that adultery on the part ofthe petitioner had been established and awarded the Is'defendant a sum of Rs. 1,000,000/= as permanent alimonyand further sum of Rs. 500,000/= on account of the 1stdefendant's house which the petitioner has sold and takenmoney. The petitioner was also ordered to return the dowry
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money of Rs. 30,000/= with accrued interest which thepetitioner had withdrawn from her sayings account. Thus theaggregated sum that was ordered against the petitioner wasRs. 1,618,709.46/=. A sum of Rs. 1,000,000/= had also beenawarded as damages against the 2nd defendant.
The petitioner and the 2nd defendant appealed against thesaid judgment to this Court. While the aforesaid appealsbearing Nos. CA.212/93(7) and CA.213/93(7) were pendingbefore this Court the 1st defendant was affected by a terminalillness and at her instance, the hearing of the above appealswere accelerated by this Court. On 30. 11.1994 the case wastaken up on top of the list and the argument commenced butcould not be concluded on that day. The 1st defendantsuccumbed to her illness and died on 01. 12. 1994 the verynext day. Thereafter on 02. 05. 1995 the petitioner's counselinformed Court that no substitution would be effected inrespect of the deceased 1st defendant and consequently thesaid appeals were abated.
Whilst the said appeals were pending the lBt defendantmade application to the District Court of Kandy,purportedly under section 653 of the Civil Procedure Codefor sequestration of a sum of Rs. 1,618,709.64/= out ofRs. 4,000,000/= which the petitioner had deposited withSinhaputhra Finance Company Ltd. and the said sum wasseized and brought to the credit of this case.
After the death of the 1sl defendant, the petitioner made anapplication to the District Court on 31. 07. 1995 seeking anorder that the said sum of Rs. 1,618,709.46/= should bereleased to the petitioner on the basis that the rights of thelsl defendant, which were personal in nature had beenextinguished by her death.
The 1st respondent, by virtue of his appointment as theExecutor of the 1st defendant, intervened, and claimed thatthe said sum was part of the estate of the deceased. The
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1st respondent, further sought to be substituted as thejudgment creditor of the case.
The petitioner filed objections to the said application of the1st respondent and maintained that whatever personal rightspossessed by the 1st defendant had ceased to exist with herdeath.
By order dated 22. 03. 1996 the learned AdditionalDistrict Judge held, inter alia, that the said sum had becomepart of the estate of the deceased now being administered inthe District Court of Galle.
The learned Additional District Judge further held thatthe aforesaid Executor of the 1sl defendant could not intervenein the divorce case and that unless the Executor took steps toobtain an order in the testamentary action to have the moneycredited within one month the petitioner would be entitled towithdraw same.
The petitioner, being aggrieved by the said order, duly gaveNotice of Appeal and thereafter the Petition of Appeal was filedin the District Court.
In the meantime the respondent, as the Executor of the 1sldefendant, had tendered a deposit note on 17. 04. 1996 issuedby the District Court of Galle. The petitioner objected to thesaid money being transferred to the testamentary action inview of the failure on the part of the respondent to obtain anorder within one month under and in terms of the previousorder of the Court.
The learned Additional District Judge, by her order dated23. 05. 1996 directed the respondent to obtain an order in thetestamentary action for the credit of the said sum within onemonth and gave an opportunity for the petitioner to move thisCourt for a stay of the transfer of the said money.
De Alwis v. Wickremastnghe and Others
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The present dispute relates only to the fate of the moniesso seized and brought to the credit of the case in satisfactionof the money decree which the 1st defendant has obtainedagainst the petitioner.
At the hearing of this application the learned President’scounsel for the petitioner sought to revise the impugned ordersof the Additional District Judge broadly upon two grounds,namely that,
(a) The death of the defendant terminated the marriageand consequently all proceedings in the divorceaction and
fb) In any event the respondent has not complied withthe order dated 22. 03. 1996 and for that reason thepetitioner should be permitted to withdraw the sumsdeposited in Court.
In support of the first submission counsel relied on thefollowing authorities "Aspects of Actio Injuriarum in theRoman Dutch Law” by Dr. C.F. Amerasinghe and The Law ofDelict in Ceylon" by E.B. Wikramanayaka.
It was further submitted by Mr. Mustapha P.C. that anyappeal that may lie for the termination of the marriage wouldbe abated by the supervening death of a party to the marriageand any payments made on the basis of the order of the originaldecree of divorce, which is the subject matter of an appeal willrevert back to the party making payment in as much as thecause of action in a divorce proceedings is extinguished withthe death of a party to a marriage.
Mr. Samarasekara P.C. submitted that upon the death ofeither party to the actio injuriarum the cause of action lapses,the maxim actio personalis moritier cum persona applies,unless the action has reached the stage of litis contestalio, in
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which event the action passes to the executor of the wrongedperson or persists against the executor of the wrongdoer as thecase may be. He relied on Wille – Principles of South AfricanLaw 5th Edition page 530 and Law of Delict by Wikramanayakepage 125.
Mr. Samarasekara P.C. cited South African Law ofHusband and Wife by Hahlo 5lh Edition at page 419 where hesays "a divorce suit is essentially a personal action. It comesautomatically to an end if one of the spouses dies before adecree of divorce is pronou need. Where one of the spouses diesafter a decree of divorce has been entered and while the appealagainst the decree is pending, the appeal falls away and thedecree stands, but it is submitted that the surviving spouse orthe executors of the deceased spouse may continue the appealif this is necessary in order to have the property rights of thespouses and their heirs (or, possibly as to costs) determined.On the other hand where an appeal had been lodged againsta judgment refusing a divorce and one of the spouses dies thematter is at an end."
In the instant case from the facts and circumstances it isclear that the case is now over. The appeal that was filedagainst the decree of the District Court is no longer pending.The appeals have been abated and the decree of the DistrictCourt stands.
In this case there was a decree for divorce and a decree forpayment of money made against the petitioner. The decree ofmoney is under several heads, such as permanent alimony,monies taken from the 1st defendant's Saving Bank Account,payment in respect of lsl defendant’s house at Galle which hadbeen sold and money taken by the petitioner.
The only question that has to be considered at this pointis whether the decree so entered by the District Judge hascome to an end in regard to the payment of alimony.
De Alwis v. Wickremasinghe and Others
(De Silva, J.)
In Blacks Law Dictionary 6th Edition, at page 73, alimonyis defined as follows:
“Alimony comes from Latin “altmonai” meaningsustenance, and means, therefore, the sustenance or supportof the wife by her divorced husband and stems from thecommon law right of the wife to support by her husband.Allowances which husband or wife by court order pays otherspouse for maintenance while they are separated, or after theyare divorced (permanent alimony), or temporarily, pending asuit for divorce Ipendente life). Generally, it is restricted tomoney unless otherwise authorized by statute. But it may beallowance out of the spouse’s estate . .
Likewise, in Wharton’s Law Lexicon 14th Edition at page51, Alimony is defined as:
"Alimony (fr. Allmonia. Lat.), the allowance made to a wifeout of her husband’s estate for her support, either during amatrimonial suit or at its termination, when she proves herselfentitled to a separate maintenance, and the fact of a marriageis established. But she is not entitled to ft if she elopes withan adulterer, or wilfully leave her husband without any justcause for so doing.”
From the above citations it is quite clear that alimony is apurely personal right which subsists only so far as the wife isentitled to support. It ceases on her demise. The claim toalimony being of personal nature extinguishes with the deathof the wife, and the decree for alimony ceases to be executable.
In these circumstances we hold that apart from thealimony ordered the rest of the money forms part of the estateof the deceased and should be remitted to the testamentarycase filed in Galle.
In view of the above findings the time limit given by theAdditional District Judge in her order dated 22. 03. 1996 isunwarranted. We set aside that order.
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The application bearing No. C.A.L.A. 128/96 filed in thisCourt stands dismissed in view of the order made in this case.We make no order with regard to costs.
WEERASURIYA, J. – I agree.
Application partly allowed.