GRATIAEJST J.—Wimalawathie Kumarihamy v. Imbuldeniya
Present : Gratiaen J.
WIMALAWATHIE KUMARIHAMY, Appellant, andW. S. B. IMBULDENIYA, Respondent
S. C. 785—M. G. Kandy, 30,754
Kandyan Marriage Ordinance (Cap. 96)—Dissolution of marriage—Maintenance—Temporary re-union—Effect on future maintenance—Section 20 (6).
Whore a wife obtains an order of maintenance against her husband ondissolution of their marriage under the provisions of the Kandyan MarriageOrdinance, a temporary re-union between them subsequently with a view tore-marriage does not amount to a waiver of her right to future maintenanceif the contemplated re-marriage does not take place.
PPEAT, from an order of the Magistrate’s Court, Kandy.
N. D. M. Samarakoon, with G. Manohara, for the applicant appellant.
V. Perera, Q.C., with Ivor Misso, for the respondent.
Cur. adv. vult.
February 23, 1953. Grattakk J.—
The appellant was until March 29th, 1949, the respondent’s wife. On thatdate their marriage was dissolved by an order made by the ProvincialRegistrar, Kandy, under the provisions of the Kandyan MarriageOrdinance. This order also directed that the respondent should pay tothe appellant a sum of Rs. 75 per mensem for her future maintenance.
On 21st January, 1952, the appellant applied to the Magistrate’s Courtof Kandy for the enforcement, in terms of sec. 20 (6) of the Ordinance, ofthe order for maintenance in her favour in respect of the months ofOctober, November and December, 1951, A .distress warrant was dulyissued by the learned Magistrate, but "the respondent intervened andmoved that the warrant be recalled on the ground that the appellanthad, on 21st June, 1951, entered into an agreement with him wherebyshe waived her right to claim future maintenance under the Registrar’sorder.
After inquiry the learned Magistrate upheld the respondent’s objectionand recalled the warrant.
The parties gave conflicting versions as to the circumstances in whichthe appellant had signed a document dated 21st June, 1951, whereby,inter alia, sh£ “ promised not to proceed with the case or claim any moneyfrom (the respondent) ”. It is common ground that in or aboutFebruary, 1951, after their marriage had been dissolved, the parties livedtogether fur approximately three months as if they were still man and wife.The learned Magistrate has found as a fact that the applicant signed the
Thesigar v. Oaneshalingam
document in question “ with, full knowledge of the contents thereof and… with a view to remarrying the respondent ”. He l^eld that in
the circumstances she had “ waived all her rights to enforce the order ofthe Registrar
The learned Magistrate seems to have taken the view tj(at when the’parties resumed their association with one another they genuinely con-templated remarriage, and that this contemplated regularisation of theirrenewed relationship formed the basis of the appellant’s si-called waiverof her right to future maintenance. It is unnecessary for me to considerMr. Samarakoon’s submission that such a waiver would be contrary topublic policy, because it is clear that in the present case the entire=foundation for the alleged agreement disappeared when the respondentdecided (as he was undoubtedly entitled to do) not to remarry his formerwife. It is impossible to interpret the document in question as anunconditional promise by the woman to release the respondent from his-obligation even if the contemplated remarriage did not take place.
Mr. H. V. Perera submitted that, upon the admitted facts, the-respondent is entitled to a cancellation of the Registrar’s order formaintenance because the appellant has been “ habitually cohabitingwith a man ”—namely, the respondent himself—within the meaning ofthe proviso to sec. 20 (6) of the Ordinance. Suffice it to say that no-application for cancellation on this ground has yet been made to theRegistrar. If the question were to arise for consideration in properproceedings, I should certainly hesitate, without further considerationof the true meaning of the proviso, to hold that a man’s temporaryirregular cohabitation with his former wife would relieve him for alltime of his obligation to maintain her in terms of an order previouslypronounced against him. In any event, I am not disposed to pronouncean obiter dictum on the point.
set aside the order made by the learned Magistrate and direct that theappellant’s application dated 21st January, 1952, be allowed. Theappellant is entitled to her costs both here and in the Court below.
. Appeal allowed,