067-NLR-NLR-V-02-LEVO-NONA-v.-ELENIS.pdf
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LEVO NONA v. ELENIS.1806. .
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September 23.
D. G., GaMe, 2,135.
Action for seduction—The Roman-Dutch Law and Ac English Law as todamages for seduction—Ordinance No. 6 of1847, s. 30.
By the Roman-Dutch Law, if a girl of previous good characterwas seduced by a man, she had the right to sue him, and to requirethat he must do one of two things—either marry her, or provideher with a dowry suitable to her condition in life; while underthe English Law the girl could not bring an action, but it wasopen to her father or guardian to sue the seducer-for damages forloss of her services by reason of the seduction.
Sadrishamy v. Subehamy ( S. O. G. 38), in which it was held thatthe'Roman-Dutch Law action for seduction was not taken away bysection 30 of Ordinance No. 6 of 1847, followed.
TN this case the plaintiff sued the defendant for damages andJ- breach of promise of marriage and seduction. The DistrictJudge held that no promise to many was proved, but condemnedthe defendant in Rs. 250 as damages for seduction. The defend-ant appealed.
Sampayo, for appellant.
Domhorst, for defendant.
I
23rd September, 1896. Bonseb, C.J.—
This is an action for seduction under the Roman-Dutch Law,which in this respect is, to my mind, superior to the English Law.By the Roman-Dutch Law, if a girl of previous good character isseduced by a man, she has the right to sue him, and to requirethat he must do one of two things—either many her, or, if unwillingor unable io do that, provide her with a dowry suitable toher condition in life. The object of this is, that the womanmay not be tinned out on the streets penniless to swell the ranksof prostitutes, but that some provision may be made for her inorder that she may either support herself or induce some otherman to marry her. As I have already observed, the English Lawin this respect affords a much less satisfactory remedy for theinjury d«ne to the girl. The English Law does not look to theintesests of the girl. The girl herself cannot bring an action. Itis the father or the master who does that. The right to bring anaction is based on the fiction that he has lost the value of herservices. The interests of the girl are not regarded, fpr the parentor master may recover heavy damages against the seducer andthen turn the girl on the streets. ’
It has been suggested by two eminent Judges of this Court—Chief Justice Phear and Chief Justice Burnside—that this action
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1896. was abolished by section 30 of Ordinance No. 6 of 1847/ If itSeptember 23. were so it would be a most unfortunate thing. But in my opinion,Bonsbr,C.J. 8,8 present advised, it is not necessary to come to thatconclusion; and even if I were of that opinion, I am bound bythe decision of this Court in the case of M. A. Sadrishamy v. K.Subehamy, reported 5 8, C. C. p. 38, where the matter was fullyargued, and it was held that this action still existed. In thepresent case the action was brought on the promise to marry,but the seduction was alleged and damages were claimed, so thatit was a two-fold action.
The District Judge has found the promise not proved, but hehas given Rs. 250 damages for the seduction. The defendantswore that he had made provision for the plaintiff by giving hera sum of Rs. 240, and it was proved that he had deposited thissum in the Post Office Savings Bank in the name of her youngerbrother, and that he had subsequently withdrawn it. He allegesthat he paid it to the plaintiff. The plaintiff gave no evidence atall on this point—she was asked no question about it. The DistrictJudge said that he was not satisfied that the plaintiff ever hadthe money. He ought to have called on her to swear one way orthe other, whether she had received the money. The defendant’sstatement was clear. It was not a vague general statement thathe ha<i given her money, but it was a precise statement that hehad given her a particular sum. The fact of the deposit in theSavings Bank corroborated to a certain extent the defendant’sstatement.
Again, the authorities lay down that the damages are to becomputed in the nature of a dos, and are to be proportioned to thesocial status of the woman. Now, the District Judge had. noevidence before him of the social status of the plaintiff to deter-mine what would be a proper dowry to give to a girl of her stationin life. Therefore the case should go back in order that furtherinquiry may be made on these two points, viz.:—
What sum would be an adequate provision by way ofdowry for a girl in the station in life of the plaintiff.
Whether the defendant has already made any adequateprovision for the girl.
Withers, J., concurred.