054-NLR-NLR-V-25-MOHOTIAPPU-et-al-v.-KIRIBANDA-et-al.pdf
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Present: Garvin A.J. and Jayewardene A.J.MOHITIAPPU et al. v. KTRIBANDA et at.
1923.
98—D. C. Kegalla, 6,197.
Refusal of a husband to consummate marriage—Action by wife fordamages against husband and person instigating the husband todo so.
The refusal of a husband to consummate a marriage doe^ notamount to a tort giving rise to a claim for damages. Refusalto cohabit, that is, to consummate the marriage, amounts in lawto desertion, and entitles the wife to obtain a dissolution of themarriage.x
Both under the Roman-Dutch law and the English law husbandshave been entitled to bring action for damages against persons,who maliciously or without just cause, have enticed away theirwives and procured them or have induced them to absent them-selves from their husbands. In the Roman-Dutch law no casecan be found where a wife has been held entitled to bring a similaraction when the husband is kept away from her—probablybecause she has no locus standi in judicio without her husband.A Kandyan wife is in the eye of the law a femme sole, and enjoysall the rights which a married woman in England has under theMarried Woman’s Property Act, 1882, and more especially ifshe is married in binna, and there is no reason why 6he should beheld disentitled to maintain an action of this kind.
'T'HE plaintiffs sued the defendants, appellants, in the DistrictCourt of Kegalla in case No. 6,197 for the recovery' of a sumof Rs. 350, being damages sustained by the refusal of the firstdefendant to consummate his marriage with the second plaintiff.
Of consent a preliminary issue of law was argued, whether therewas a misjoinder of parties and of causes of action, and the learnedDistrict Judge on June 12, 1923, held on that issue in favour of theplaintiffs.
The defendant appealed.
F. de Zoyza, for defendants, appellants.Keuneman, for plaintiffs, respondents.
The following authorities were cited at the argument:—8 C. W. R.149 ; 16 Halsbury, 318, 319, sections 627-630 ; 9 H. L. 577, at page591; 4 N. L. R. 316 ; De ViUiers, p. 36, p. 82.
Cur. adv. vult.
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1923.
MoMtiappu
v.
Kiribanda
September 13, 1923. Jayewardene A.J.—
This is a* peculiar action. The parties are Kandyan Sinhalese.The second plaintiff is the wife of the first defendant. She allegesthat she married the first defendant with the consent of the firstplaintiff and the second defendant. I presume they are the fathersof the second plaintiff and first defendant respectively. Shefurther alleges that since the date of the marriage her husband,the first defendant, at the instance of the second defendant, hasrefused to consummate the marriage and has deserted her. Byreason of this conduct the plaintiffs say they have been greatlydisgraced in the eyes of the public and have suffered damage inreputation, which they estimate at Rs. 350. They claim this sumjointly and severally from the defendants.
The defendants filed a joint answer containing a general denial ofall the allegations in the plaint, including the averment of marriage.They further pleaded that this action was not maintainable inlaw as there was a misjoinder of parties and causes of action. Noobjection was taken on the ground that the plaint disclosed nocause of action. From the issues suggested for the defendantsit would appear that they now admit the marriage between thesecond plaintiff and the first defendant. The first issue whichraised the question of misjoinder of parties and causes of actionwas taken up, and the Court's decision invited on it as a preliminaryissue. The learned District Judge held that there was no misjoinderof parties and causes of action. On the plaint, as it stands, thereis clearly no misjoinder of. either parties or causes of action.Damages are claimed against both defendants as a result of atort committed by the first defendant at the instance of the second.They can be sued in the same action if the action is maintainable.But during the argument it appeared to us that the real objectionof the defendants was that the action in its present form wasnot maintainable, at least against the husband, the first defendant.We, therefore, invited counsel to argue the question whether theaction was maintainable in law against the defendants or either ofthem. Now, the cause of action alleged against the husband isthat he refused to consummate the marriage. In my opinion therefusal of a husband to consummate a marriage does not amountto a tort giving rise to a claim for damages, whatever mighthave been the object or intention of the husband in so refusing.Marriage, especially among Kandyans, under the Kandyan'MarriageOrdinance of 1870 is a purely civil contract. Such a marriageinduces the usual consequence of marriage—the duty of thehusband to live together, and cohabit with his wife. Refusal tocohabit, .that is, to consummate the marriage, amounts in law todesertion, and entitles the wife to obtain a dissolution of thecontract of marriage. Refusal to cohabit may in some casesdisgrace the wife in the eyes of her friends and relatives, but I know
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of no case, and none have been cited to us, where such a refusal hasenabled a wife to treat it as a tort sounding in damages whetherunder the Kandyan, the English, or the Roman-Dutch law. Heronly remedy is to obtain a divorce. In my opinion, therefore,the plaint does not disclose any cause of action against the firstdefendant, and the action against Him must be dismissed, withcosts.
To the case against the second defendant different considerationsapply. Perhaps owing to the novelty of the action the plainthas not been properly framed. It is in substance a claim fordamages against the second defendant for inducing the husbandto refrain from cohabitation, that is, to desert his wife and todeprive her of the consortium of her husband. Is a wife entitledto bring such an action ? Both under the Roman-Dutch law andunder the English law husbands have been entitled to bring actionsfor damages against persons, who maliciously or without justcause, have enticed away their wives and procured them or haveinduced them to absent themselves from their husbands. 3 Nathan,p. 1666, s. 1623, and Halsbury's Laws of England, vol. 16, p. 318,s. 623. In the Roman-Dutch law no case can be found where awife has been held entitled to bring a similar action where thehusband is kept away from her. This may be due to the factthat in the Roman-Dutch law a wife is supposed to be under thetutelage of her husband, and t£e difficulties in the way of herinstituting such an action, as she has no locus standi in judiciowithout her husband. But in England such an action was recentlybrought, and was held to be maintainable. See Gray v. Gee.1The absence of any previous case was attributed to the fact thatthe wife could not sue alone prior to the passing of the MarriedWoman’s Property Act, 1882. In an old case which came beforethe House of Lords, Lynch v/Knight2 from the Irish Courts, LordCampbell L.C. and Lord Brougham strongly favoured the viewthat such an action would lie, but Lord Cranworth and LordWensleydale took the opposite view. In Gray v. Gee (supra)Darling Jt, in over-ruling the objection that the action was notwell founded, said:—
“ In this country a woman was never a chattel of her husband.He had potestas over her and his children, but potestasand proprietor were very different things. He (HisLordship) had come to the conclusion that there was nodistinction to be drawn here to the effect that the husbandcould bring the action because his wife was his property,and that the wife could not because her husband washot her property. If a man was allowed to bring suchan action, why should not a woman ? He could see no* (1923) 39 T. L. R. 429.3 (1861) 9 H. L. B. 576.
1923.
Jaybwab-
DENB Aaif.
Mohitiappu
v.
Kiribanda
>( 224 )
1928.
Jayhwar-DBNG A J.
Mohitiappu
v
Kiribanda
reason. A woman might not lose quite as much as herhusband, but if another woman enticed the husbandaway, she lost far more than necessities and far more thanmoney could replace. " This form of action had beenallowed in the United States andin Canada, and althoughthese decisions were not binding upon a Judge in thiscountry, they laid down what was the old law of England.He thought it was entirely consistent with the principlesof our Common law, and he thought the reason whysuch an action had never been brought before was thatthere had been difficulties of procedure. These had nowbeen swept away by the Married Woman’s Property Act,1882. He was of opinion that the rights of the twoparties were the same. The difficulty had been, notthat there was not the right, but that the remedy hadnot been devised. The law had devised that remedy bythe Act which gave a ‘married woman the right to sue inher own name for her own benefit. The legal objectionwas bad, and the action should proceed.”
A Kandyan wife by the Common law which regulates her rightsis, and has always been, in a stronger position than her Englishsister. She was in the eye of the law a femme sole, and enjoyedall the rights which a married woman in England has underthe Married Woman’s Property Act, 1882, and more especially,if she was married in binna. So that the reasoning of Darling J.'entirely applies to her, and there is no reason why she should beheld disentitled to maintain an action of this kind. It is notnecessary to decide whether wives whose rights are governed bythe Roman-Dutch law and the Ordinance No. 15 of 1876 are in thesame advantageous position. If the allegation in the plaint beconstrued as meaning that the second defendant instigated orinduced the first defendant not to consummate the marriage, thatis, not to live with her, and thereby the second plaintiff has lostthe consortium of and joint residence with her husband, it disclosesa cause of action against him. Perhaps the plaint requires amend-ment, and the plaintiff should be allowed to make the necessaryamendments. If the action of the first defendant was intendedto cause, and did cause, disgrace to the plaintiff, that circumstancesmay be taken into consideration in awarding damages. It isdifficult to understand the first plaintiff’s presence in the case. Hisname should be struck out. I do not think he has any place in theaction. The appellants are entitled to their costs of appeal.
Gabvin A.J.—I agree.
Varied.