030-NLR-NLR-V-14-PINHAMY-v.-BABYNONA-et-al.pdf
( 104 )
Jan. 25,1911
Present: Hutchinson C.J. and Middleton J.PINHAMY v. BABYNONA et al358—Z). C. Nuwara Eliya, 70.
Husband and wife—Separation by agreement—Covenant not to take legalproceedings—Condonation—Action for divorce—Agreement bar toaction—Past misconduct.
An agreement between husband and wife contained the followingclause : “ From henceforth we shall live separate from each other,and that while our modes of living hereafter shall be as both of usshall individually and separately will and desire, our deeds, acts,conducts, and behaviours can and shall be independent of oneanother and as each party shall separately will and desire, andthat both of us shall not hereafter seek any legal remedy againstone another according to law
In an action for divorce by the husband against the wife, on theground of adultery, where the husband was unable to prove anyadultery subsequent to the agreement,—
Held, that the agreement was a bar to this action.
T
HE plaintiff, and his wife, the defendant, entered into anagreement to live separately, and further agreed not to “ seek
any legal remedy against one another according to lawThe plaintiff sued the defendant and the co-defendant to obtaindivorce on the ground of adultery with the co-defendant. TheDistrict Judge dismissed the action on the ground that (1) noadultery was proved, (2) that the agreement was a bar to this action.
The plaintiff appealed.
H. J. C. Pereira (with him J. W. Silva), for the plaintiff, appellant.—The agreement cannot be pleaded as a bar to this action, for it isan immoral agreement and against public policy. If the agreementbe upheld, it would give the defendant full liberty to lead animmoral life, and the plaintiff would be deprived of his right underthe law. A private agreement like this should not be allowed toprevent the course of the law. See Gooch v. Gooch ;1 Rose v. Rose ; 2.Pereira's Laws of Ceylon, vol. //., p. 476.
Bawa, S.-G., for respondent, not called upon.
January 25, 1911. ^Hutchinson C.J.—
This is the plaintiff’s appeal against the dismissal of- his action.He sued his wife and the co-defendant to obtain a divorce from hiswife on the ground of her adultery with the co-defcndant. The
1 {1SV3) P. D. Vi).- (1SSZ) r. D. vs.( 105 )
District Judge dismissed the action on the ground that no adulteryhad been proved. But there was also a legal objection taken bythe defendant founded on an agreement made between the husbandand the wife about two months before the action was commenced.The agreement is in Sinhalese, and according to the translation filedthe parties agreed “ that from henceforth we shall live separatefrom each other, and that while our modes of living hereafter shallbe as both of us shall individually and separately will and desire,our deeds, acts, conducts, and behaviours can and shall be indepen-dent of one another and as each party shall separately will anddesire, and that both of us shall not hereafter seek any legal remedyagainst one another according to law ”. The defendants contendedthat this agreement was a bar to the action, and the District Judgewas of opinion that it was so ; and I think that he was right. Thatis the only matter which has been argued on the appeal, and wehave not heard the appellant’s argument against the finding of theJudge that no adultery was proved. Mr. Pereira, for the appellant,contended that this agreement was immoral, and therefore notenforceable, because it, in effect, stipulates that the wife may liveas she pleases, and that no matter how she lives, and even if she livesin adultery, the husband will not sue her for divorce or separationin respect of such misconduct.
If the agreement does, in effect, include such stipulation, it wouldprobably; so far as regards that stipulation, be void. The agreement,however, to my mind includes a stipulation that neither party shallsue the other in respect of any transaction prior to the agreement,and, so far as regards that stipulation, there is no reason for holdingit to be invalid. See the opinion on that point expressed by thePresident in Gooch v. Gooch.1 There is no evidence here that thewife has been guilty of any misconduct since the agreement. Ithink that the agreement binds the husband not to sue the wife inrespect of any transaction which took place before, and which hewas aware of at the date of the agreement, and that such a stipula-tion is valid, and is a bar to this action. I think, therefore, that theappeal should be dismissed with costs.
Jqn. 26,1911
Hutchinson
O.J.
Pinkamyo♦ Babynona
Middleton J.—I entirely agree.
Appeal dismissed.
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1 L. li. (1S03) P. D. 106.