067-NLR-NLR-V-11-LUCINAHAMY-v.-DIASHAMY.pdf
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1908.March 23.
Present: The Hon. Sir Joseph T. Hutchinson,'Chief Justice,and Mr. Justice Middleton.
LUCINAHAMY v. DIASHAMY.
D. C., Qalle, 8,431.
Seduction—Causeofaction—Defloration—Damages—Subsequentacqui-
escence.
An action for seduction lies in Ceylon at the instance of theparty seduced, notwithstanding that the Court has no power toorder the specific performance of a 'promise to marry or to ordermarriage as an alternative course by reason of seduction.
The essence of the action for seduction under the Roman-DutchLaw is the defloration of a virgo into eta, and the action might bebrought at once on the completion of the' first act of' intercourse.Levo Nona v. Elenis 1 and Sadriskamy o. Subehamy 2 followed.
A
PPEAL from a judgment of the District Judge of Galle. Thefacts sufficiently appear in the judgments.
Baum, for the defendant, appellant.
The plaintiff was not represented.
Cur. adv. vult.
March 23, 1908. Hutchinson C.J.—
The claim in this action is for damages for seduction of theplaintiff by .the defendant under promise of marriage, and also torecover Es. 88, which the plaintiff alleges that the defendant tookfrom her. The District Judge found, and I see no sufficient reasonto dissent from his finding, .that no promise of marriage was proved;that the defendant seduced the plaintiff, who was previously of goodcharacter; that the plaintiff’s parents acquiesced in the defendantkeeping her as his mistress at their house; that she left the house,some eighteen months after the first seduction, at the defendant’sinstigation, and went to another village, where he again seduced her,» (1896) 2 N. L. R. 173.2 {1882) 6 S. C. C. 38.
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and that on that occasion she took with her Bs. 100, of which the 1908.defendant misappropriated Bs. 88. And he gave judgment for the March 23.plaintiff for Bs. 300 damages on account of the seduction and for Hutchinsonthe Bs. 88.0Jf-
I think we ought to follow the ruling of this Court in Sadriahamy v.
Subehamy,1 approved in Levo Nona v. Elenis,* that an action forseduction can still be maintained in Ceylon.
To succeed in the action the plaintiff must prove that she was avirgin at the time of the first seduction. That, I think, is suffi-ciently proved by her evidence that she was a virgin, corroboratedby her father’s evidence that she was of good character, and not inany way contradicted. The fact that after the first seduction shecontinued for more than eighteen months to allow him to haveimmoral intercourse with her does not debar her from recoveringdamages for the first seduction, there being no plea of prescription.
Bs. 300 seems, however, an excessive amount to give as damages, .considering the circumstances of the parties. There is no evidenceas to the plaintiff’s age; and the only evidence as to her occupationis that she made lace in her father’s house, and that she worked for aconsiderable time in the defendant’s plumbago shed. Her father is amason paid by the day. The defendant is a carpenter, and earns, asthe plaintiff says, 75 cents a day; he himself says that he earns morethan a rupee a day, and that 75 cents is his lowest daily pay; andhe also had a plumbago shed. I think it is clear that there was nopromise of marriage, and that until she became pregnant she and herparents were content that the immoral connection should continue.
Under these circumstances I do .not think it is a case for vindictivedamages, and that Bs. 100 would be quite enough.
I should amend the judgment of the District Court by givingjudgment for the plaintiff for Bs. 188 and the costs of the action.
No costs of the appeal.
Middleton J.—
This was an appeal against a judgment ordering the. defendant topay damages Bs. 300 for the seduction by him of the plaintiff, andBs. 88 for money of the plaintiff appropriated by the defendant forhis use.
The plaintiff claimed damages for breach of promise to marry,but the learned District Judge found that no promise had beenproved, and I am not prepared to say he is wrong on that point.
The points raised on the appeal were (1) that the evidence did notprove that defendant had seduced plaintiff, being virgo intacta; (2)that even if it did she had no right of action; 3 (3) that it was notproved that the defendant appropriated Bs. 88 of the plaintiff’s;
(4) that in any case the damages were excessive.
Him) 5 S. G. C. 38.a (1896) 2 N. L. B. 173.
» 2 S. C. B. 91; 5 S. C. C. 214.
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1908. In Levo Nona v. Elenis 1 the Supreme Court, presided over byMarch 23. Bonser C.J., held that although such eminent Judges as Phear C.J.
Middmton and Burnside C.J. had doubted if this action had not been abolishedJ. by section 30 of Ordinance No. 6 of 1847, yet he was bound by theauthority of the case reported at page 38 of 5 8- C- C-, where thisCourt had held that the action for seduction was not wholly takenaway. I think we also are bound by these authorities to hold thatthe action for seduction still remains, although the law has debarredthe Courts from ordering the specific performance of a promise tomarry, or ordering marriage as an alternative course by reason ofseduction.
It is not necessary for me to express any opinion under the circum-stances on section 30, but the terms of its proviso appear to me towarrant the opinion of Clarence A.C.J., enunciated in 5 S. C. 0. 38.
I think, therefore, I must hold against the contention of the learned,counsel on the second point.
On the first point, I think the evidence is sufficient to prove that"the defendant Seduced the plaintiff, and that she was at the timevirgo intacta, although there is no evidence of her age, and hotparticularly minute details of her association with the defendant orany statement by her mother. At the same time it shows that forlong after her seduction she acquiesced, with the consent of herparents, in the further acts of intimacy with the defendant, and thatshe of her own free will left her father’s house and took up her abodewith the defendant at Walpita, and that it was only after she wasbrought back at the instance of her parents and found to be pregnantthat she instituted these proceedings against the defendant.
The essence of the action for seduction under the Boman-DutchLaw appears to be the defloration of a virgo intacta, when upon thecompletion of the first act of intercourse the action might at oncebe brought.
What, then, is the position of a woman who has not onlysubmitted to an illicit intimacy with a man, but has apparentlydone so with the consent of her parents, and who of her own free willleft her parents’ house with her seducer?
It is impossible to say on the evidence that the plaintiff was at allunwilling to go and live at Walpita with the defendant, or was inany way coerced or deceived into doing so. She may have beenseduced within the true meaning of the word in the first instance,but she has condoned the act and consented to its continuanceopenly. It may be- answered that no other course wa6 open to herunder the circumstances than to yield to what her parents acquiescedin. But what has happened here i6 a recognized condition ofthings in the villages, which those who have anything to do withthe administration of criminal 'justice are well aware of. I think,therefore, it would neither be equitable nor politic under suchi (1896) 2 N. L. R. 178.
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circumstances to give a woman in the social position of the plaintiff, i90S-who appears to be a plumbago sorter, heavy damages against the March 23~man who has seduced her. I would therefore reduce the damages Middleton-allowed to Es. 100.J*
As regards the claim for Rs. 88, I somewhat doubt from a com-parison of the evidence of her father and herself whether the plaintiffhad any such sum with her as she alleges, but the District Judge Beesno reason to disbelieve the plaintiff. She says she had saved Rs. 100from presents given her by her parents for ten years, and her fathersays she had Rs. 40 of his when she left home, but the defendantdoes not deny their allegations in his evidence. I would thereforehesitate to interfere with the learned Judge’s finding on the fact here.
The judgment of the District Judge will therefore stand as to theRs. 88, but should be varied by reducing the amount of damages forseduction to Rs. 100 only.
The costs of the action will be paid on the District Court scale bythe defendant, but there will be no costs of this appeal.
This judgment will not of course affect any claim which theplaintiff may be able to establish against the defendant' for themaintenance of her child, if she is in a position to prove its paternity.
Damages reduced.