SWAN J.—Somawathie ■». John Fernando
1954Present: Gratiaen J. and Gunasekara J.
FREDA WICKREMASINGHE, Appellant, and D. H.
KIRIMUTTTJ et al., Respondents
S. C. 80—D. C. Kegalle, 7,194
Kandyan Law—Kandyan widow—Diga association with another man after deathof husband—Forfeiture of her rights in former husband's property.
A Kandyan widow (whose husband died before the Kandyan Law Declarationand Amendment Ordinance, No. 39 of 1938, came into operation) forfeitsher life-interest in her husband’s acquired property if, without contracting avalid marriage, she forms a diga association with another man.
Appeal from a judgment of the District Court, Kegalle.
H. Aluivihare, with W. D. Gttnasekera, for the 3rd defendantappellant.
H. W. tfayewardene, with D. It. P. Goonetilleke, for the plaintiffrespondent.
Cur. adv. vult.
GRATIAEN J— Wickremasinghe v. Kirimultu? 83
March. 9, 1954. Gratiaen J.—
The only question which calls for consideration in this appeal is whethera Kandyan widow (whose husband died before the Kandyan LawDeclaration and Amendment Ordinance, No. 39 of 1938, came intooperation) forfeits her life-interest in her husband’s acquired propertyif, without contracting a valid marriage, she forms a diga associationwith another man.
In Ukkubanda v. Heenmenika1 a Divisional Bench of this Court authori-tatively decided that a Kandyan widow’s remarriage in diga is visitedwith forfeiture of her rights over the acquired as well as the paraveniproperty of her former husband. It has now been argued that no suchforfeiture takes place unless the subsequent diga association is regularisedby formal registration as a marriage under the Kandyan MarriageOrdinance (Cap. 96). In my opinion, however, the ratio decidendi ofUkku Banda's case (supra) is of wider import.
As Garvin J. points out, the principle underlying the rule of forfeitureon remarriage is that it generally results in “ the quitting of the familyhouse by the widow …. involving a severance of the familytie ”. Similarly, Dr. Hayley observes that “ the essence of the offenceseems to have been the departure from the home rather than the re-marriage ”—Sinhalese Laws and Customs p. 359. According to the NitiNiganduwa, a Kandyan woman’s “ marriage right ” entitles her to bemaintained and supported from the profits of her husband’s propertyeven after his death, but only so long as she retains her connection withthe “ home ” into which she was admitted on her marriage.
It seems to me that the test which ought to be applied in cases of thiskind is whether all the circumstances in which a widow has “ quittedthe family home ” and formed a diga association with another man aresufficient to justify the inference that she thereby intended finally andcompletely to sever “ the family tie ” which previously subsisted.An analogy may be found, mutatis mutandis, in the eases where a personvoluntarily abandons his existing place of domicile animo non revertendi,and, by permanently settling in another country, acquires a new domicileof choice.
If we apply this test to the facts of the present case, we find that>shortly after her husband Pun chi Banda died in 1937, his widow DingiriMenika returned to the home of her mother and her brothers in the villageof Maneloluwa. Not long afterwards, she and a man called Ukkubandaformed an association which, though not registered as a formal marriagewas intended (and has so far proved) to enjoy a permanent character.Ever since then, they have lived together in Ukkubanda’s house inBamunugedera &£ if they were man and wife, and three children havebeen bom to them. Should their association, even at this late stage,be formally regularised under the Kandyan Marriage Ordinance, itwould be recognised retrospectively as a valid diga marriagq, and theirchildren would be legitimated—Dissanayake v. Punchi Menike 2. But,
1 (1928) 30 N. L. R. 180.
8 (1953) 55 N. L. R. 10S.
GRATIAEN J.—Wiclcremasinghe v. Kirivnuttu
in the meantime, the severance of her tie with the family of her formerhusband and the consequential forfeiture of her rights in respect of hisproperty are already complete. Her position is in no way better thanthat of a Kandyan daughter who forfeits her paternal inheritance by“ going out in diga ” without contracting a valid marriage.
For these reasons, I am of the opinion that the appeal should bedismissed with costs."
Gunasekaea J.—I agree.