084-NLR-NLR-V-63-M.-EMELDA-FERNANDO-Appellant-and-W.-S.-ELARIS-FERNANDO-Respondent.pdf
416
JEmelda Fernando v. J&laris Fernando
Present:H. N. G. Fernando, J., and Tambiab, J.M. EMELDA FERNANDO, Appellant, and W. S. ELARISFERNANDO, Respondent
S. C. 164—D. C. Negombo, 81 {L
Divorce action—•Rights of parties to bring separate actions in respect of settlementof property—Civil Procedure Code, ss. 617, 618—Rule of forfeiture of benefitsas between spouses—Inapplicability of the rule in regard to the separate propertyof the offending spouse—■“ Ante-nuptial contract ”—Matrimonial Rights andInheritance Ordinance, No. 15 of 1876, s. 8.
Where, in a divorce action, the parties do not invite the Court to grant anyrelief by way of settlement of property under section 617 or section 618 of theCivil Procedure Code they may be permitted by the Court, on their election,to reserve their rights to file separate actions under the common law for therecovery of any property in the hands of each other.
“ The common law remedy was not abrogated as a result of the enactmentof those sections (sections 617 and 618 of the Civil Procedure Code), but ratherremedies envisaged by tbese sections are complementary to the- actionavailable under the common law. However … the parties cannot have
the benefit of both remedies but should elect to claim either the remedy underthe common law or those available under the Civil Procedure Code. ”
Under the common law the rule of forfeiture of benefits as between spousesdoes not apply to the separate property of the offending spouse.
Two mouths prior to the marriage between the piaintiff-appellant and thedefendant-respondent (wife and husband respectively) the plaintiff’s brothersdonated certain property to the plaintiff and defendant in equal shares “as atoken of mental pleasure and for their future prosperity ” which the donorshad “ towards the marriage of the said donees After dissolution ofmarriage on the ground of malicious desertion by the plaintiff, the plaintiffand the defendant claimed in the present action each other’s fhare of thedonated property. The trial Judge allowed the claim of the defendant anddismissed that of the plaintiff.
Held, that the defendant, while he was entitled to retain the share which hadbeen donated to him, was not entitled to the share of tho plaintiff, despite thefact that the plaintiff was the offending spouse. It could not be said that theshare which vested in the plaintiff under the deed of donation was as a result,of an ante-nuptial contract. Nor could it be said that the share which theplaintiff received was a benefit she derived from her spouse by marriage. Shewas already vested with title when she married and, therefore, this was herseparate property and, as such, it was not subject to forfeiture.
Wijesundere v. Bartholometis (1885) 6 S. G. C. 141, not followed.
Ap:
PEAL from a judgment of the District Court, Negombo.
J.A. L. Cooray, with N. U. Jctyawardena, for the Plaintiff-Appellant.
H. Wanigatunga, with D. C. W. Wickremasekera, for the Defendant-Respondent.
Cur. adv. vull.
417
TAMBIAH, J.—Emelda Fernando v. Elaris Fernando
June 23, 1961. Tambiatt, J.—
This action is the sequel to a divorce action hied by the respondentagainst the appellant on the grounds of adultery and malicious desertion.
About two months prior to the marriage between the appellant andthe respondent, the appellant’s brothers, by deed No. 10264, dated1st November 1943, marked Pi, donated a half-share of the propertydescribed in the Schedule to the plaint, to the appellant and respondentin equal shares “as a token of mental pleasure and for their futureprosperity ” which the donors had " towards, the. marriage of the saiddonees ”. After dissolution of marriage, the appellant brought thisaction for the settlement of a quarter-share of the said land. Therespondent denied the appellant’s right to this relief and claimed,by way of reconvention, a decree settling the one-fourth share of thesaid land on the respondent, since he had obtained the divorce ongrounds of adultery and malicious desertion by the appellant. Thelearned District Judge, after trial, dismissed the appellant’s action andgranted relief claimed by the defendant in reconvention. The appellanthas appealed from the order of the learned District Judge.
The appellant married the respondent on the 13th of January 1944.On the 2nd of March 1958, the respondent filed an action for divorceagainst the appellant on the grounds of adultery and malicious desertionby the appellant. After an ex parte trial, a decree nisi was enteredin favour of the respondent on both grounds. Before the decree wasmade absolute, the appellant intervened and prayed that the ordernisi be set aside. She alleged that her married life had been exception-ally unhappy as her husband had a propensity towards the commissionof unnatural offences. She also alleged that she had separated fromher husband on the understanding that he should file an action fordivorce against her on the ground of malicious desertion but therespondent had fraudulently obtained a decree for divorce against heron the ground of adultery and malicious desertion, without due serviceof summons on her. ' The appellant’s application to set aside the decreenisi was inquired into by the learned District Judge who vacated thedecree nisi dissolving the marriage on the ground of adultery andentered a decree nisi dissolving the marriage on the ground of maliciousdesertion. The parties were permitted to file separate actions for therecovery of any property in the hands of each other.
The learned District Judge, after citing some authorities, held thatthe appellant had no cause of action to ask for a reconveyance of thequarter-share of the said land which had vested. in the respondentby the deed referred to earlier. He also held that the respondent wasentitled to succeed in the claim for reconvention. Although we seeno reason to differ from the finding of the learned District Judge inholding that the appellant had no cause of action to ask for a re-conveyance of the quarter-share, we cannot agree with the learned
418
TAMJ3IAH, J.—Emelda Fernando v. Elaris Fernando
District Judge when he came to the conclusion that the respondent wasentitled to succeed in his claim in reconvention. After a carefulconsideration of the authorities on this subject, we are of the view thatthe learned District Judge has misdirected himself on tliis matter.
In the divorce action, the parties did not invite the Court to grantany relief under Section 617 or 618 of the Civil Procedure Code(Ordinance No. 2 of 1889). Section 617 empowers the Court whichpronounces a decree for dissolution of marriage on the ground ofadultery by the wife to order a settlement of the wife’s property on thehusband or children. Section 618 further empowers the Court, after adecree absolute for the dissolution of marriage or a decree of nullity ofmarriage, to inquire into the existence of ante-nuptial or post-nuptialsettlements made on the parties whose marriage is the subject of thedecree. The section also empowers the Court to make such orders,with reference to the application of the whole or a portion of the propertysettled, whether for the benefit of the husband or the wife, or of thechildren (if any) of the marriage, or of both children and parents as tothe Court seems fit. The proviso to this section states that the Courtcannot make any order for the benefit of the parents or either of themat the expense of the children. Sections 617 and 618 of the CivilProcedure Code are closely modelled on the English Divorce andMatrimonial Causes Acts of 1857 and 1859 (20 & 21 Viet. C. 85)respectively.
Under the Roman-Dutch Law, the innocent spouse, after dissolutionof marriage, is entitled to maintain an action against the offendingspouse to recover certain benefits which the latter may have derivedas a result of the marriage. In such an action, the Court has nodiscretion to withhold order for forfeiture of benefits when claimed (VideMurison v. Murison 1 and the authorities cited therein). The preliminaryquestion which arises for consideration is whether the statutoryprovisions contained in Sections 617 and 618 of the Civil ProcedureCode have abrogated the action available under the common law.
This question was adverted to by Schneider J. inX>e Silva v. De Silva a.He stated : “ The effect of Sections 617 and 618 might be regardedeither as repealing the Common Law on the subject dealt with in themor of introducing new provisions which are to stand side by side withthe provisions of Common Law, not being opposed to one another,but only alternative each to the other ”. The learned Judge, however,did not venture to express his opinion on this matter as the Court wasonly dealing with an application under Section 617 of the Civil ProcedureCode and consequently it was not necessary to decide this point. Aftera careful consideration of the authorities, we are of the opinion that thecommon law remedy was not abrogated as a result of the enactmentof these sections, but rather the remedies envisaged by these sectionsare complementary to the action available under the common law.
1 (1930) A. D. 157 alp. 163
* (1925) 27 N. L. It. 289 at 305-306.
TAMBIAH, J.—Emeldu Fernando v. Elaris Fernando
419
However, as pointed out by Schneider J. in De Silva'* case (supra atpage 306), the parties cannot have the benefit of both remedies butshould elect to claim either the remedy under the Common Law orthose available under the Civil Procedure Code. In the instant case,as the parties have not claimed any proprietary reliefs under Sections617 or 618 of the Civil Procedure Code, but have elected to reservetheir rights to bring separate actions, their rights under the commonlaw to bring separate actions have been preserved.
The scope and ambit of the rule of forfeiture of benefits as betweenspouses, is discussed in precise terms by the Roman-Dutch authorities.Voet states (vide Voet 24.2.9. Gane’s Translation Vol. 4 page 293) “ Whenhowever one or other spouse is declared a malicious deserter by thedecision of the judge, the penalty on the deserter is that he loses all gainwhich he could have made out of the property of the deserted spouse in virtueof dotal agreement or of statute. He is held liable in addition to hand backall gifts contributed to himself by the innocent party before marriage orat the very time of marriage as well as moiety of the expenses of marriage.So far is this so that an innocent spouse also transmits to his or herheirs the right to claim all these things if he or she has himself or herselfbeen impeded from demanding them by the happening of a fatality. ”
Van Leeuwen in his Commentaries, lays down (vide V.L. 3,1, 20; 4, 24,10), that the adulterous spouse forfeits for the benefit of the innocent spouseeverything that would otherwise have been enjoyed by him or her under theCommon Law or by ante-nuptial contract ; and after enumerating thepunishments for the crime of adultery, he states that “ in addition theinjured party, whether husband or wife, retains his right against theadulterer for a dissolution of the marriage as well as otherwise forcompensation and reparation according to law, which consists herein,that the adulterer forfeits to the injured party everything which accordingto the common law or by ante-nuptial contract or otherwise would have beenacquired by him out of the property of his spouse. " (4, 37, 8).
Professor Hahlo (vide The South African Law of Husband and Wife—Hahlo—(Juta) p. 362) aptly summarises the Roman-Dutch Law onthe subject as follows :—“ Since the law considers that a spouse shouldnot be allowed to benefit financially from a marriage which has beenwrecked through his (or her) fault, the plaintiff, in an action for divorceon the grounds of adultery or malicious desertion, may claim as againstthe defendant the forfeiture of all financial benefits, past and future, whichthe latter has derived from the marriage or is to derive from the marriagein future, whether by way of community of property or under an ante-nuptial contract. "
The South African courts do not favour the forfeiture of any propertyof the offending spouse, which cannot justifiably be considered as afinancial benefit acquired from the other spouse as a result of themarriage. In Celliers v. Celliers 1 the parties were married in community
1 {1904) T. S. 926.
•420
TAMBIAH, J.—Erhelda Fernando v. Elaria Fernando
of property and one of them obtained a divorce on the ground ofmalicious desertion. It was held that the innocent party was entitled
claim a division of the joint estate and ask for forfeiture of anybenefits which the; guilty party may have derived from the marriage.-However, the Court also held that the innocent party cannot deprive theguilty party of the share of the joint estate which he or ^&e may have»contributed to the community. Solomon J., in the course of his judgment,stated : “ Certainly in. the courts of Cape Colony- the law and practice 'on this subject have always been, considered as settled, and theuniversal order which is made in those courts is not for forfeiture ofthe property but for forfeiture of the benefits which may have accrued by<virtue of the marriage.
.The principle of forfeiture of benefits was considered by Van DenHeever J.A., in Allen v. Alien1. The learned Judge stated: “ Thegerm of forfeiture of benefits in Roman-Dutch law is to be found in the48th Article of the Political Ordinance; 1580. This Article deals-expressly only with divorce on the ground of adultery and reserved tothe plaintiff his Roman Law rights conceived as a penalty for the■disruption of the marriage. At first it was doubted whether maliciousdesertion was a ground for divorce (see Grot. Irdeyd (1.5.18) ; Boelad Leon. Beds. Gas. 16 ; Hamerster, Stat v. Friesland Bk. 2, tit. 11 art. 5).The deserted spouse invoked the assistance of the legislature (cf.G. P. B. 6 p. 540). Later the protestant jurists and divines, on theirinterpretation of the Bible, added malicious desertion as a ground uponwhich divorce could be claimed. In Holland this became the communisopinio except that some authorities attributed to malicious desertion agreater disruptive effect than to adultery, holding that whereas adulterymerely gave cause for divorce, malicious desertion itself put an end tothe marriage so that the court did not dissolve a marriage on this groundipso jure by the desertion and granted the injured party leave toremarry (Boel ad Loen., cas. 16 ; Van der Linden, Jud Pract (2.6.7.) ;Arntzenius, Inst. Jur. Belg. (3.7.25) .) The former more logical viewprevailed in South Africa.-”
<e When. malicious desertion was generally recognised as a ground•for divorce the Dutch jurists by analogy of the 18th Article of thePolitical Ordinance had recourse to Roman law for its penalty. Sincethe Roman unilateral repudiation without just cause was in • effectmalicious desertion, they found it i.a. in C. 5. 17. S. 4. accordingto which the guilty spouse if the wife, forfeited her dos and the donatio■ante nuptias. Some authorities e.g. Wessel (£>e Finiend. Connub. Bonor.Societ. (Tr. 2.4.1. et seq.) ) held that the guilty spouse forfeits only gainsand anticipated gains, not as in Roman law, a portion of his or her-own estate brought into the marriage. The more liberal view hasprevailed in South Africa ; one need refer only to Celliers v. Cellierst(supra) and the decisions therein referred to. ”
1 {1951) 3 S. A. L..R. 320 at 326 and 327.
TAMBIAH, J.— Ernelda Fernando v. ELaris Fernando
421
In Ceylon, there are two conflicting decisions of this Court on thequestion of forfeiture of benefits as between spouses. In Wijesunderev. Bartholameus1 it was held by a Bench of two judges that anoffending wife in a divorce action forfeited an article of furniture, whichshe brought in as part of her dowry property, when the divorce wasgranted to the husband on the ground of her malicious desertion. Thelearned judge, who decided the case, has not cited any authority incoming to this conclusion and we are inclined to agree with Schneider J.in De Silva v. De Silva (supra at page 301) when he stated that thecase of Wijesundere v. Bartholomeus was wrongly decided.In
Dondris v. Kudatchi 2 Wendt J., after an exhaustive review of theRoman-Dutch authorities, held that the forfeiture did not apply to theseparate property of the offending spouse. The weight of the Roman-Dutch authorities is in favour of this view.
In De Silva v. De Silva (supra at page 304), Schneider J., in an obiterdictum, also took the view that the forfeiture did not apply to theseparate property of the offending spouse. The learned Judge statedc£ If the plaintiff had been obliged to rely upon the common Jaw, therecan be no question that he would have had no right to claim theforfeiture of the estates which were purchased by the first defendant.They cannot be brought within the meaning of the terms ' dos ' or'* donatio propter nuptias ”
In the instant case, the appellant’s right to the property is derivedfrom the deed of gift executed by the appellant’s brothers. Ascommunity of property is no longer a consequence of marriage in Ceylon(abolished by section 8 of the Matrimonial Rights and InheritanceOrdinance, No. 15 of 1876), there is no community of property betweenthe appellant and the respondent. The learned District Judge appearsto have formed the erroneous view that the wife obtained this propertyby an ante-nuptial contract. “ Ante-nuptial contracts, being of wideapplication ” says Vander KLeesel (vide V.d.K. 228) “ can scarcely beOtherwise defined than as agreements between future spouses or otherinterested persons regarding the terms or conditions by which themarriage is to be regulated ”. It cannot be said that the share whichvested in the respondent by deed No. 10264. was as a result of an ante-nuptial contract. We need not consider whether the benefits whichthe respondent obtained on the said deed were on an antenuptial contractas he is not the offending spouse so long as the decree for divorce stands.
It cannot be said that the share which the plaintiff received by virtueof deed No. 10264, is a benefit she derived from her spouse by marriage.She was already vested with title when she married and, therefore,this was her separate property and as such it is not subject to forfeiture.
1 (1885) 6 S. C. C. 141.
(1902) 7 N. L. F. 107.
422
Mitradasa Fernando v. Sub-Inspector of Police, Kalubowila
For these reasons, we set aside the order of the learned District Judgegiving judgment for the respondent and allow the appeal. We holdthat the respondent is not entitled to succeed in his claim in re-convention and we dismiss his claim. As both parties have failed intheir respective claims, there will be no costs in the District Court.The appellant is entitled to the costs of the appeal.
H. N. G. Fernando, J.—I agree.
Appeal allowed.