029-NLR-NLR-V-36-IN-THE-METTER-OF-AN-APPILICATION-BY-CAROLINE-NONA-UNDER-ORDINANCE-No.15-of-1876.pdf
AKBAR J.—Fradd v. Fernando.
131
* Present: Bertram C.J. and Garvin J.
In the Matter of an Application by Caroline Nona underOrdinance No. 15 of 1876.
Weerasoorio (with Hulugalle), for appellant.
Canjimanathan, as amicus curiae.
November 20, 1924. Bertram C.J.—
This question we have to consider is a very simple one, and the parties are notin any disagreement. An order has been made by the District Judge, which heappears subsequently to have seen occasion to review in another case.' The questionwhich we have to consider it this. When a married woman, married before theAmending Ordinance No. 18 of 1923, desires to alienate property acquired beforethe commencement of that Ordinance, is it necessary for her to obtain the consentof her husband in pursuance of section 9 of the Matrimonial Rights and InheritenceOrdinance of 1876, and if her husband refuses his consent is she entitled to obtainfrom the District Court an order authorizing her to dispose of the property withouther husband’s consent ? It seems to me that both these questions must beanswered in the affirmative. By section 4 of the Amending Ordinance No. 18 of1923, sections 5 to 19 of the principal Ordinance are repealed. The repealedsections thus include both section 9 and section 12 ; but it is provided that thisrepeal shall not affect any right acquired while such sections are in force. Bytheir marriage while those sections were in force, the husband and wife in this case
1 13 N. L. R. 201.
132
MACDONEL.L. C.J.—Fradd v. Fernando.
acquired certain mutual rights. The husband under section 9. acquired a right torestrain his wife from disposing of her immovable property without his own consent.The wife acquired a corresponding right, in the event of her husband refusing hisconsent, to apply to the District Court for an order dispensing with that consent;the conditions under which the Court could dispense with that consent beingdefined in the section. Both these rights are consequently unaffected by the repealof sections 9 and 12, and in so far as the District Court requires any authority forexercising the jurisdiction to give that consent—a point which seems to haveoccasioned some difficulty in the learned Judge in the subsequent case referred to—it seems to me that jurisdiction is impliedly given by preservation in favour of thewife of her right to apply to the District Court for the purpose. I may point outat the same time that section 10 (2) of the Ordinance clearly implies the view ofthe law which I have just expressed. It implies that any woman married beforethe commencement of the Ordinance would require the written consent of herhusband in order to dispose by sale of any immovable property to which she hadbecome entitled before the commencement of the Ordinance.
The situation, therefore, appears to he this; the learned District Judge in thiscase now before us expressed the opinion, of her immovable property acquiredbefore the Amending Ordinance, that the wife in this case should obtain the consentof her husband. He also expressed the opinion that the District Court has nolonger any jurisdiction to make the order applied for. The views on furtherconsideration the learned Judge has seen fit to abandon for those which I havealready expressed.
The case must go back to the District Court with a view to the District Judge'sconsidering whether the conditions under which the District Court may make anorder dispensing with the husband’s consent have been satisfied ; in particular,as to whether the husband’s consent, in the circumstances, has been unreasonablywithheld. The appeal, therefore, should be allowed, but there shall be no orderas to costs.
Garvin J.—I agree.