013-NLR-NLR-V-29-MALIAPPA-CHETTY-v.-MALIAPPA.pdf
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tm.
Present: Lyall Grant J.
MALIAPPA CHETTY t>. MALIAPPA.
759—P. 0. Colombo, 13,368.
.Maintenance—Separation' by mutual consent—Binding effect—Ordinance
No. 19 of 1889, a. 5.£
’Where an application for maintenance by a wife was resistedby the husband on the ground that they were living separate,—
Held, that – the separation by mutual consent contemplated bysection 5 of the Maintenance Ordinance must be one eutered intounder circumstances which would justify a judicial separation.
^^PPEAL from an order of the Police Magistrate of Colombo.
H. H. Bartholomeusz (with Canakaratne), for appellant.
Weerasooriya, for respondent.
July 1, 1927. Lyall Grant J.—
This is an appeal from an order of the Police Magistrate ofColombo allowing a wife maintenance from her husband. Thefirst hearing of the case was on September 28. 1926. when the-defendant pleaded (1) that the applicant had deserted the respondentof her own accord and without sufficient reason and (2) that theparties were living apart by mutual consent.
Counsel for the applicant stated that the applicant was preparedto return to the defendant and offered to do so. Defendant'scounsel then said that he was not now prepared to take the applicantback.
The question was then argued whether the respondent’sallegations constituted a relevant defence.
The learned Police Magistrate held that they did not do so. Hefound on the authority of Gooncwardenc v. Abeyewickreme1 thatthe continuance of an agreement to live apart depended on thecontinued consent of the parties and that it was put an end to bythe applicant’s offer to return to her husband.
Accordingly he restricted the question of proof to the amount ofmaintenance to be paid. Evidence on that point was led on October20, 1926, and the amount of maintenance was then fixed of consentat Rs. 75 a month.
On October 21 the defendant presented a petition of appealfrom the order of September 28. A preliminary objection wastaken at the hearing that the appeal was out of time. It is obvious,
18 X. L. h. S'9.
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however, that the order of September 30 was an interlocutor}7order and not appealable, and that the appellant could appealagainst the final order only. This appeal was entered at the earliestpossible opportunity. Accordingly I over-rule the objection.
The principal point argued on appeal was as to the bindingcharacter of an extra judicial arrangement for a separation by consent.
’That such an agreement is not illegal under our law wanauthoritatively decided by the Privy Council in Soysa v. Soysa.1 Adictum of de Sampayo J., quoted with approval by the Board inthis case, runs as follows: —
“ The result of all the authorities is that an agreement for voluntaryseparation and a provision as to property are not onlynot illegal, but valid as between the parties themselves,and only ineffectual for certain purposes*'
Maasdorp, Institutes of Cape Law, vol. 1, p. 76, says: —
“ An extra judicial agreement for separation will be effectual asbetween the spouses themselves …. Such anagreement also will not be binding even upon the spousesthemselves, unless circumstances 'existed at the date ofthe separation which would have justified the Court itigranting a decree of separation, the reason of this beingthat such an agreement, being without legal consideration,would amount to a donation between husband and wife.
The grounds which would satisfy such a decree are set forth asfollows by Maasdorp at page 75:—
“ Where owing to habitual cruelty or the illtreatment of onespouse by the other, or continuous quarrels or dissensionsbetween the spouses, or some other equally valid reason,the continued living together of the spouses has becomeinsupportable or dangerous to the life of one or other ofthem.
It must be noted that in the present case no formal agreementfor separation has been entered into. All that is alleged by thehusband is that the parties are living apart by mutual consent.It appears to me that such an averment is not an averment of suchan extra-judicial separation as is contemplated by the law as havingthe binding character attachable to a judicial separation.
The passage quoted from Voet's Pandects, Bh. 24, tit. 2, 8. 19,is too vague to be of much assistance in this matter.
Mr. Justice Wood Renton in Micho Hamy v. Girigoris Appu-expressed the opinion that where the applicant parted from therespondent a number of years before on her own initiative and hadsince been living separate by mutual consent-, the wife could notcompel her husband to take her back or to pay her maintenance,1 19 N.L.R. 146.2 15 N. L. R. 191.
1927.
LyaixGrant J.
MaliappaCheUy v.Maliappa.
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1927.
IiYALLGrant J.
MaliappaOhetty v.Maliappa
In that judgment Wood Benton J. refers to section 5 of theMaintenance Ordinance of 1889, which provides that no wife shall beentitled to receive a maintenance allowance from her husband if theyare living separate by mutual consent. He adds: “ The last^wordsin the section mean/' I think, “ if they have separated by mutualconsent.”
1 find myself unable to reconcile the judgment in this case withthat of Qoonewardene v. Abeywickreme {supra).
The question which this Court has really to decide at present iswhether the words in the Maintenance Ordinance bear the inter-pretation placed upon them by Wood Benton J.
I am very doubtful whether the section can be so construed,unless its application is restricted to cases where the mutual consenthas been entered into under circumstances which would justify ajudicial separation.
Whether those circumstances exist in the present case or not isa matter of which the Court has no knowledge at present.
Another point, however, appears to me to be of some importance,and that is whether the offer by the wife to return to her husbandis bona fide. It is open to any wife suing for maintenance to offerto live with her husband without any intention to do so but knowingthat the offer will be refused. I do not think it is possible toarrive at a satisfactory decision in this case without investigating
the facts.f,
?>
The order for maintenance is accordingly set aside, and the caseremitted to the Police Magistrate for the purpose of inquiring intothe truth of the parties' averments.
Set' aside.