044-NLR-NLR-V-65-MUTHUKUDA-Appellant-and-SUMANAWATHIE-Respondent.pdf
Muthukuda v. Sumanawaihie
205
J962 Present: Weerasooriya,and H. W. G. Fernando, J.
MUTHUKUDA, Appellant, and SUMANAWATHIE, RespondentS. C. 556—jD. C. Kaiutara, 3175S
JBreach of promise of marriage—Promise in writing—Sufficiency of nekath paper—
Acceptance of promise—Writing not necessary—Injuria suffered by plaintiff—
Right of plaintiff to bus ex delicto—Marriage Registration Ordinance, s. 19 (3).
The proviso to section 19 (3) of the Marriage Registration Ordinance readsas follows :—
“ No action shall lie for the recovery of damages for breach of promise ofmarriage, unless such promise of marriage shall have been made inwriting. ”
Held, that proof of writing is necessary only in respect of the promise ofmarriage and not in respect of the acceptance of the promise. Acceptancemay be made by the conduct of the parties and by a definite understandingbetween them that a marriage is to take place.
Plaintiff sued the defendant for the recovery of damages on two causes of■action. The first cause of action was based on a breach of promise to marry.The second cause of action was based on injuria suffered by the plaintiff byreason of the failure of the defendant to attend the poruwa ceremony when theplaintiff and a large number of guests were awaiting the arrival of thedefendant.
The only document relied on by the plaintiff as constituting a promise ofmarriage in writing was the nekath paper which was a memorandum of theastrologically auspicious times associated with the wedding fixed to take placeon a fixed day between the plaintiff and the defendant. It was written inthe first person, the defendant being mentioned by name as the author of it.
Held, (i) that the nekath paper constituted a promise in writing by thedefendant to the plaintiff.
that it was not necessary to prove that the promise was accepted inwriting by the plaintiff. Acceptance could be inferred from the conduct of theparties.
that the injuria suffered by the plaintiff gave rise to a cause of actionex delicto even had there been no breach of promise and the defendantcontinued thereafter to be ready to marry the plaintiff
206
WEERASOORIYA, S.P.J.—MuiMJcnda v. Svmanawathia
a—
Appeal from a judgment of the District Court, Kalutara.
H. W. Jayewordene, Q.C., with G. P. Fernando, for defendant-appellant.
N. E. Weerasooria, Q.C., with Nimal SenanayaJce, for plaintiff-respondent.Cur. adv. wit.
December 21, 1982. Weerasookiya, S.P.J.—
The plaintiff-respondent sued the defendant-appellant on two causesof action. The first cause of action was that the defendant “ by hiswritings and more specially by his letter dated 10.9.56 ” promised tomarry the plaintiff, that after the parties had given the statutory noticeof marriage and exchanged rings, and cash Rs. 5,000 had been paid to thedefendant as dowry by the plaintiff’s father, the defendant maliciously,fraudulently and with intent to disgrace the plaintiff failed to attend theporuwa ceremony and the office of the Registrar of Marriages on the 7thNovember, 1956, for which date the wedding was fixed, and otherwisefailed and neglected, and by his conduct unequivocally refused, to marrythe plaintiff. On this cause of action the plaintiff claimed a sum ofRs. 2,500 as damages for breach of promise to marry. The second causeof action was that on the strength of the promise to marry and in thepresence of a large number of invited guests, the plaintiff on the 7thNovember, 1956, attired in her bridal clothes and attended by friends andrelations awaited the arrival of the defendant, who maliciously and with-out any cause whatsoever failed and neglected to attend the poruwaceremony and the office of the Registrar of Marriages, with the result thatthe plaintiff suffered great pain of mind, humiliation and disgrace in theeyes of her friends and relations and the public, and her chances of marri-age were completely blasted. On this cause of action the plaintiffclaimed a sum of Rs. 2,500 “ on account of injuria thus suffered ”.
After trial the District Judge entered judgment awarding the plaintiffRs. 2,000 on the first cause of action and R6.1,500 on the second causeof action, and costs. Prom this judgment the defendant has appealed.
The case for the plaintiff is that her marriage with the defendant, whowas previously a stranger to her, was arranged by her parents in thecustomary way. Preliminary negotiations in regard to the proposalhaving proceeded satisfactorily, the 10th August, 1956, was fixed for thenotice of marriage. On that date the betrothal also took place, rings wereexchanged and a sum of Rs. 5,000 representing a part of the agreed dowrywas handed to the defendant. Prior to that, the plaintiff’s parents hadexecuted in favour of the plaintiff, as a gift in consideration of her marri-age, the deed P7 conveying to her a land called Maragahawatte said to beworth about Rs. 25,000. On the 10th September, 1956, the defendant,attended by his elder brother and other closed relatives, visited theplaintiff’s residence and brought with him the printed document, PI,
WEBRASOOR.IYA, S.P.J.—Muthulcuda v. Sumanawathie
207
described in the evidence as a nekath paper, and about which more willhave to be said later. As announced in this document, the weddingwas fixed for the 7th November, 1956. The defendant regularly visitedthe plaintiff up to the 4th November. Even though the parties did notmeet thereafter, the defendant gave no indication to the plaintiff or herparents until the~7th November that he did not intend to marry her.The present action was filed on the 7th December, 1956. Accordingto the certificate of marriage P8, the defendant married one DonaLeelawathie Goonetilleke on the 31st January, 1957.
In the answer filed by the defendant he admitted that notice of marriagewas given on the 10th August, 1956, but denied that the marriage cere-mony was fixed for the 7th December, 1956. By way of further answerthe defendant averred that—(a) “a proposal of marriage was made to thedefendant by the plaintiff’s father on the understanding that a house andproperty worth Rs. 40,000 and a cash dowry of Rs. 2,500 would be givento the defendant on the day of the engagement between the plaintiff andthe defendant ” ; (b) “on the day of the engagement contrary to theaforesaid promise the defendant was given only a sum of Rs. 500 as dowry,thereby deceiving the defendant which fraudulent conduct resulted in themarriage falling through ” ; (c) “ the defendant informed the plaintiffand her father that owing to the fraud and deception practised on him hewas unable to agree to the proposal of marriage ”.
The evidence given at the trial by the defendant and his witnesses insupport of the averments at (a), (b) and (c) above was rejected by theDistrict Judge. The defendant said that as a result of what took placeon the 10th August, 1956, there was no question of his marrying the plain-tiff either on the 7th November, 1956, or at all, and that shortly after the10th August he made that quite clear to the plaintiff and her parents.The defendant’s evidence on this point is, however, flatly contradicted bythe document PI, which bears the date 10th September, 1956, and refersto the wedding ceremony fixed for the 7th November, 1956. The defen-dant’s evidence that the date 10th September, 1956, in PI is a mistake forthe 10th August, 1956, was also rejected by the District Judge. Thesefindings of fact were not seriously challenged by Mr. Jayewardene whorepresented the defendant at the hearing of the appeal.
Under the proviso to section 19 (3) of the Marriage Registration Ordi-nance (Cap. V) no action shall he for the recovery of damages for breachof promise of marriage unless such promise of marriage shall have beenmade in writing. Although the plaint averred that the defendant had“ by his writings and more specially by his letter dated 10.9.56 ” promisedto marry the plaintiff, the only document relied on by plaintiff’s counselat the trial as constituting a promise of marriage in writing was thedocument referred to as the “ letter dated 10.9.56 ”, which is the nekathpaper, Pi. Unless, therefore, Pi constitutes a promise of marriage inwriting within the terms of the proviso to section 19 (3), the plaintiff’sclaim on the first cause of action must fail. The substantial point urgedby Mr. Jayewardene in regard to this claim at the hearing of the appeal
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W1EELRASOORIYA, SJP.J.—Muthukuda v. Stmanawathie
was that Pi does not constitute such a promise in writing and thatthe learned District Judge was wrong in holding that it did.Mr. tlajewardene argued, firstly, that PI is not a promise of marriage,secondly, that even if it is a promise of marriage, it is not a promise bythe defendant and, thirdly, that even if it is a promise of marriage by thedefendant, it is not a promise made to the plaintiff.
Pi purports to be a memorandum of the astro logically auspicious time*associated with the wedding fixed to take place on the 7th November,1956, between the plaintiff and the defendant. It is written in the firstperson, the defendant being mentioned by name as the author of it. Itrecites inter alia as follows—
,c I, native Physician Somatilleke Muthukuda being their son inanticipation of the marriage to be taken place according to ancientcustoms and rites with Sumanawathie Liyanage the daughter ofLiyanage James Appuhamy and K. D. Mary Nona shall step out withthe right foot, front facing East, at the auspicious hour at 7.59 a.m.on the 7th day of November, 1956 A.D. with my relations to yourresidence.
On the same day at 9.45 a.m. facing East I shall ascend the bridalthrone with the bride, present jewellery and clothes and offer beteland linen, accomplishing Sinhalese customs and rites, and shall enterinto the Assembly Hall. ”
According to Mr. .Jayewardene, the portion of PI quoted above is at themost only a declaration of intention and is not a promise. I am unableto agree, for there is not only a declaration of intention to do the actsspecified, but there is also an undertaking or assurance that they willbe performed. In my opinion this part of PI constitutes a promise tomarry.
The evidence of Weerastnghe, the manager of the printing press whereP 1 was printed, is that the defendant himself brought the manuscriptT2, on the lines of which Pi was to be printed. The defendant, at therequest of Weerasinghe, signed P2 and paid an advance of Rs. 10. Onthe 9th September, 1956, the defendant came again and removed Pi, andpaid the balance Rs. 10 out of the sum of Rs. 20 charged for printing PI.Both the plaintiff and her father stated that the defendant brought PIto their residence on the 10th September, 1956, and in their presencePi was formally read out by the defendant’s brother and thereafter handedto the plaintiff’s father. The District Judge held that in the circum-stances Pi was a promise made by the defendant to the plaintiff. Itseems to me that the learned Judge’s findings on these points are ampljsupported by the evidence.
Lastly, Mr. Jayewardene argued that even though PI be construed as apromise in writing by the defendant to the plaintiff, no written acceptanceof the promise having been proved, there was no “ promise ” of marriagewithin the meaning of the proviso to section 19 (3) of the MarriageRegistration Ordinance. It is an elementary rule that every contract
WEERASOORIYA, S.P.J.-^Jlfu/Aw*uda v. Sumanawathie
209
requires an offer and an acceptance. An offer or promise which is notaccepted is not actionable, for no offer or promise is binding on the personmaking the same unless it has been accepted. These principles would,of course, be applicable to a promise of marriage. The promise, or offer,proceeding from one of the parties would not be binding on him or herunless accepted by the other. Under the common law mutual oralpromises of marriage constitute a binding contract which is actionableon a breach therof. Section 19 of the Marriage Registration Ordinancedoes not declare such a contract to be null and void. It only providesthat no action shall lie for the recovery of damages for a breach of promiseof marriage unless such promise is in writing. While I agree withMr. Jayewardene that the promise of marriage contemplated in the sectionis a binding promise, i.e., a promise which has been accepted by the otherparty, I am unable to agree with his further contention that the trueconstruction of the section is that the acceptance also has to he in writing.Such a construction would mean that the entire contract must be inwriting which, however, is not what the section states. In the precedingprovisions of section 19 there is a distinction between a contract ofmarriage and a promise of marriage. In view of this distinction, theexpression “ promise of marriage ” in the final provisions of the sectioncannot, in my opinion, be construed as meaning a contract of marriage.
In Udalagama v. Boange1 the Privy Council held that the kind of writing-required under the proviso to section 19 (3) of the Marriage Registra-tion Ordinance “ must contain an express promise to marry or confirm aprevious oral promise to marry, i.e., admit the making of the promise andevince continuing willingness to be bound by it In my opinion, Pisatisfies the requirement stipulated by the Privy Council, in that itcontains an express promise to marry. There is no specific evidence thatthis promise was accepted by the plaintiff, “ but acceptance maybe made by the unequivocal conduct of the parties and by a definiteunderstanding between them that a marriage is to take place ”—Ghittyon Contracts2. The conduct of the plaintiff subsequent to the 10thSeptember, 1956, being the date on which PI was brought by the defen-dant, was such that acceptance by her of the promise contained in PI mayreasonably be inferred.
As for the second cause of action, Mr Jayewardene submitted that theclaim under it also arises from the alleged breach of promise of marriageand not from a distinct cause of action ; and he relied on the same objec-tions against the maintainability of this claim as were advanced by himin regard to the claim on the first cause of action. As these objectionshave been rejected by me for the reasons already given, the appealagainst the award of damages on the second cause of action also fails,even if the claim did arise from the breach of promise of marriage. Nodoubt, as Mr. Jayewardene contended, a breach of promise of marriagewould give rise to an action ex contractu as well as ex delicto■ It would
■{1959) 61 N. L. B. 25.
8 Vol. 2 (1955 caitiiU <198.
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Ocddara t?. WijmoarfatM
appear, however, from the plaint that the claim under the second causeof action is not based on the delictual element of the breach of promise,but is in respect of pain of mind, humiliation and disgrace suffered bythe plaintiff as a result of the events of the 7th November, 1956, forwhich the”defendant was responsible and which caused injuria to theplaintiff independently of the breach of promise. Although these eventscoincided with the breach of promise, I do not think that they were anecessary consequence of it, for even if the defendant did not intend tomarry the plaintiff he need not have exposed her to the pain of mind,humiliation and disgrace which she suffered on the day in question.In my opinion, the events referred to would have given rise to a cau3e ofaction ex delicto even had there been no breach of promise and thedefendant continued thereafter to be ready to marry the plaintiff.
The appeal is dismissed with costs.
H. N. G. Fminakdo, J.—I agree.
Appeal dismissed.