003-NLR-NLR-V-07-MENIKA-v.-DISANAYAKA.pdf
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1903.
July 3 and16.
MENIKA i>. DISANAYAKA.
B., Kandy, 1840.
Husband and wife—Claim for alimony—Period for which alimony may beclaimed.
Where a wife, deserted by her husband and maintained by her fatherfor several months, claimed alimony 'from the date of her husband'sdesertion to the institution of the action and for further alimony till thedecision of the action,—
Held, that she could claim alimony only from the date of the institutionof the suit, and that, as her husband was willing, after action brought,to live with her but the refused to do so, she could not recover alimonybeyond the date of such refusal.
T
HIS was an action brought by a wife (who was living withher father) against her husband to recover alimony. The
parties were married on the 3rd June, 1901. On the very day ofthe marriage the defendant deserted her, without consummatingthe marriage. The wife’s action was instituted about six monthsafterwards—on the 24th February, 1902. She prayed for main-tenance at the rate of Bs. 20 per month from the date of hermarriage to the institution of the action, and for a further sum ofBs. 20 for every month thereafter.
The defendant pleaded that he married the plaintiff on. thecondition that her father should pay him Bs. 1,500 in cash andgive him lands to the value of Bs. 3,000, and that as her fatherneglected to carry out his promise he was not liable to maintainthe plaintiff.
The Commissioner (Mr. J. H. de Saram) found that the matterspleaded in avoidance did not freee the defendant from liability tomaintain his wife; that when the case came on before him on the19th November, 1902, he suggested an amicable settlement, andthe defendant then expressed his readiness to live with theplaintiff as her husband, but that she refused his society; that inthese circumstances the defendant was bound to maintain theplaintiff only up to the date of his willingness to live with her,viz., 19th November, 1902; that the amount of maintenanceshould be at the rate of Bs. *10 per month; and that the plaintiffshould tave judgment for seventeen and a half months, viz.,?.s. 175..0
The defendant appealed. The case was argued on 3rd July,
*■'
Bawa, for the appellant.—The Commissioner* has given judg-ement from the date of 'desertion tq the date of the plaintiff s refusal
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to live with the defendant. But it has been held in Yadtdgoda v. 1908.Herat {2 S. C. G. 33) that where the father has maintained his Jutlanddaughter, the deserting husband cannot be sued by her foralimony for the months during which she has been so maintained.
The Commissioner’s judgment should be modified by reducingher claim from the date of the institution of the suit to the timeof her refusal to live with him.
Van Langenberg, for the plaintiff, respondent.—There isnothing to prevent the father from recovering from his daughterthe costs of her maintenance. The dictum of Clarence, J., referredto by the appellant’s counsel was really not the' point decided inthe case, as the head-note shows. All that was decided there wasthat the wife had the right to ask the Court to assess and awardher maintenance pending desertion. The Supreme Court doesnot lay down in the case cited that a wife cannot recover asalimony any sum of money which had not been actually spent.
That case does not apply here.
Cur. adv. vult.
16th July, 1903. Grenier, A.J.—
This was an action for alimony. The defendant appears tohave deserted his wife on the very day that hey married her, andnever went back to live with her. The desertion took place on the3rd June, 1901, and since that time she has been living with herfather. She claims maintenance at the rate of Its. 20 a month, butI accept the amount fixed by the Commissioner, viz., Rs. 10 amonth. In a similar case decided by a Full Bench of this Court,and reported in 2 S. C. G. 33, it was held that the wife was entitledto maintenance as from the date of the institution of the suit.
I would therefore vary the judgment of the Commissioner andorder judgment to be entered for the plaintiff, decreeing that thedefendant do pay to the plaintiff the sum of Rs. 10 a month asand from the 24th February, 1902, up to the 19th November, 1902,being the date of her refusal to live with him. No costs.