PREMANIE SAMARASINGHE v. LEELARAJA SAMARASINGHE

005-SLLR-SLLR-1990-V-1-PREMANIE-SAMARASINGHE-v.-LEELARAJA-SAMARASINGHE.pdf


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CAPremanie Samarasinghe v. Leetaraja Samarasinghe
PREMANIE SAMARASINGHE
V. 'LEELARAJA SAMARASINGHE
COURT OF APPEAL.
P.R.P. PERERA, J. AND WIJEYARATNE, J.
C.A. APPLICATION No. 587/89 .
NOVEMBER 06, 1989.
Family Law- Civil Procedure Code, sections 61S(i) and 618-Judicial separation-Dowry- When can dowry property be claimed in a suit for divorce or separation ? – Forfeiture ofbenefits.
Dowry is a marriage portion where movable or immovable property is given by a parent ora third party to a woman in consideration ol marriage. The (act that this gift is given incontemplation of marriage distinguishes it from an ordinary free will gift.
A married woman is capable of acquiring, holding or. disposing by will or otherwise anymovable or immovable property as her separate property as if she were a feme-sole.
When dowry or any portion thereof given on behalf of a wife is actually given to or used bythe husband, or if the husband has already derived any benefits therefrom or will derivein the future any benefits by reason of that marriage, then if the marriage'is dissolved dueto the fault of the husband, he has to forfeit those benefits.
In an action for judicial separation too, it would appear that an order for forfeiture of accruedbenefits (but not future benefits) could be obtained.
If the marriage is dissolved owing to the fault of the husband he is liable to forfeit thosebenefits. This could be done in one of the following ways
Restitution of total property on the basis that it belongs to the wife and that thehusband had only the usufruct thereof;
Where dominium has passed to the husband, it could be reclaimed on the basisof forfeiture of benefits;
On the basis that the husband holds such property in trust for the wife;
Where cash Is given to or expended on his behalf by the wife, the wife can askfor return of same on the basis of forfeiture of benefits.
(1)
(2)
(3)
.
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(1990] 7 SriL.R.
Under section 618 of the Civil Procedure Code the Court may. if it thinks fit, upon'pronouncing a decree of divorce or separation, after going into these matters (i.e. matterswhich relate to the forfeiture of benefits) at the main trial itself, order the settlement ofproperty. Questions which can relate to forfeiture of benefits by the guilty spouse could beput in issue at a trial for divorce .or separation.
Per Wijeyaratne, J, "The Roman-Dutch law rule that a guilty party forfeits the benefitsderived from the marriage has long been part of our law and has been recognised as suchby many decisions of the Supreme Court over the years'. To obtain relief on this basis itmust be shown that there was some matrimonial fault on the part of the guilty spouse bywhich he forfeits these benefits for which purpose the other party must pray for a divorceor separation.
Where the wife has not put matrimonial fault of her husband in issue, she cannot seeksettlement of properly on the basis of forfeiture of benefits. The defendant petitioner hasnot put matrimonial fault of the spouse in issue and is therefore not entitled to such relief.Application dismissed.
Cases referred to:
Senadhipathi v. Senadhipathi 43 NLR 272.
Fernando v. Fernando 63 NLR 416
Karunanayake v. Karunanayake 39 NLR 275, 280.
Cooray v. Lilide Silva S.C. 80/75 (F) – D.C. Panadura 12356/M- SC Minutes of15.08.1978.
Abeyratne v. Nanda Wickremaratne (C.A.) (S.C.) I31/75F – D.C. Colombo70204/M ,S.C. Minutes of 31.07.1980.
Grace de Alwis v. Walter do Alwis 76 NLR 444.
APPLICATION for revision of the order of the District Judge of Colombo.
I.G:N. Jacolyn Seneviratne with F.C. Perera and Miss Damayanthi de Silva lor defendant- petitioner.
Romesh de Silva P.C. with Ian Fernando and Geethaka Goonev/srdena for plaintiff -respondent.
Cur. adv. vuil.
December 13.1989.
WUEYARATNE, J.
The plantiff-respondent (husband) filed this action on 7.11.1984 againstthe defendant-petitioner (wife) for a decree of separation on the groundsset out in the plaint (a copy of which is annexed, marked “A"). Thedefendant-petitioner filed answer denying that any cause of action hasaccrued to the plaintiff-respondent to sue her, and prayed that theplaintiff-respondent's action be dismissed.
CA Preman'm Samarasinghe v. Leelaraja Samarasinghe (Wijayaratne, J.)33
The defendant-petitioner further averred that she is entitled to a dec-laration –
that the legal title of the matrimonial home, 66/7, AnandaCoom-araswamy Mawatha (Green Path), Colombo 3, was in her andthat she is entitled to the beneficial interest therein. =
that she is entitled to the movables set out in paragraph 29 of theanswer and the schedule, or the value thereof.
that she is entitled to judgment in a sum of Rs. 30,000 being thedowry provided at the time Of the. marriage:
On 19.7.1987, when the trial was resumed, learned counsel for thedefendant-petitioner raised issues 4 to 13. Learned counsel for, theplaintiff-respondent raised objections to issues 9 to 13, which are asfollows :-
(a) As set out in paragraphe 9 and 11(a) of the answer, did the
defendant spend monies for the purchase of the land, construc-tion and improvement of the buildings standing on premises No.
66/7, Greers Path ?
II so, is the defendant entitled to a declaration that the saidproperty is held in trust for the benefit of.the.defendant?
(a) From 1970 to 1984 were a!i monies earned by the defendant
spent for the purchase of the said land, construction of the house,on the said land and for effecting improvements thereon?
Did the defendant directly or indirectly or in any other waycontribute for the purchase of the said property?
If issues 10(a) and 10(b) are answered in the affirmative, is thesaid property held in trust by the plaintiff for the benefit of thedefendant?
In any event is the defendant entitled to the return of the dowryof Rs. 30,000?
is the defendant entitled to the return of the movables mentionedin paragraph 3 of the answer and the schedule thereto, or thevalue thereof?
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[1990] 1 Sri L.R.
13 (a) Are premises No.66/7, Green Path, Colombo 3, the matrimonialhome ol the parties ?
(b) It so, is the defendant entitled to the rights of residence therein?
. Learned oounsel for the plaintiff-respondent objected to the issues onthe ground that they cannot be set up in a divorce action or in an actionfor judicial separation.
The learned Additional District Judge held that these reliefs can besought only after the decree absolute has been entered and that section'618 of the Civil Procedure Code does not permit these matters to beraised in this, action.
The learned Additional District Judge relied on the decision ofSenadhipathi y. Senadhipathi (1) and by her order dated 21.7.1989disallowed the said issues.
Being dissatisfied, the defendant-petitioner has filed this application inrevision.
The defendant-petitioner has also filed an application for leave toappeal from this order (bearing No. 83/89) and counsel agreed that theorder in the leave to appeal application will abide the order in this case.
I have considered the submissions made by Mr. I.G.N. JacolynSeneviratne for the defendant-petitioner and Mr. Romesh de Siiva,President's Counsel, for the plaintiff-respondent.
The practice of giving dowry on behalf of a woman has long beenprevalent among the indigenous people of this country (and also in theadjoining Indian sub-continent). The origin is lost in the dim past.
Hayley in his treatise on the Laws and Customs of the Sinhalese(Kandyan Law) -1923 Edn. at page 333 – says, “among the Sinhalese thedowry is an important part of marriage which is still a matter of arrange-ment between the bride's parents and the bride-groom or his family". Thisis in reference to the Kandyan Sinhalese.
The same observation applies to the Low Country Sinhalese. Thepractice prevails even more strongly among the Tamil population of this
CA . Ptemanie Samarasinghe v. Lealaraja Samarasinghe (Wijoyaratne, J.)35
country. (See sections 1 to 6 of the Thesawalamai Code, which isgenerally applicable to the Tamils of the Northern Province. In-section 1dowry is referred to as “Chidenam”). Among the Muslims there is “Kaikuli"which is a dowry given by the bride's parents to the groom, while “Mahr”is given by the groom to the wife. The practice is so well recognised thata daughter's share in the parental inheritance, is thereby affected as thisis an alternative method of providing for her. (See also section 35 of theMatrimonial Rights arid Inheritance Ordinance, No. 18 of 1876, relatingto hotchpot or collation).
In Roman-Dutch Law (which is the common law of this country.
matter by their own special laws as set out above) there was “dos” arid“donatio propter nuptias". “Dos” (or dowry) is described by Voet as“properly which is given by a woman or someone else on Her behalf to ahusband so that he may bear the burden of the marriage” – (23.3.2).
“Donatio propter nuptias” (or donation on account of marriage) is givenfrom the side of the husband to the wife by way of return and as securityfor the dowry. (Voet 23.3.21). We are not concerned with that aspect here ,in this case.
In Roman-Dutch Law, community of property prevails between thespouses and was pari of our common law until its abolition by theMatrimonial Rights and Inheritance Ordinance, No.;18 of 1876 (section7).
“Dos" (or dowry) could be excluded from the community by ante-nuptial contract.
Hahlo in hisbook “The South Afticari Law of Husband and Wif e” 1953,1st Edition] at page 174, says that an ante-nuptial contract is an ‘agreement between intending spouses as to the terms and conditions bywhich their marriage is to be governed.
: Hahlo in the same book at page 203 states that in modern law thereis, to all intents and purposes, only one form of ante-nuptial contract and ..that it is one which excludes community of properly and profit and loss andthe marital power of the husband. An ante-nuptial contract could also deal,with marriage settlements which are given in consideration of marriage.
a-
{1990] 1 Sri L.R.
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These are the variable consequences of marriage in contrast to otherconsequences which could not be varied even by agreement, such as thereciprocal duties of cohabitation, fidelity and support.
Professor R. W. Lee in his book “An Introduction to Roman-Dutch Law"5th Edn. -1953, in Appendix “A” at page 414, gives the form of such anante-nuptial contract in South Africa signed before a notary public and twoattesting witnesses by a man and a woman about io enter matrimony.
Thus a gift like “dos” (ordowry) could be excluded from the communityof property by a settlement under such an ante-nuptial contract. It isnecessary to understand this historical background as our Civil Proce-dure Code refers to settlements of property, ante-nuptial settlements andpost-nuptial settlements.
Since community of property of spouses is no longer a pan of our law,there is no necessity for spouses normally to enter into such ante-nuptialcontract; but there could be ante-nuptiai settlements or post-nuptiaisettlements of property.
Giving of dowry is such a marriage settlement. Dowry is a marriageportion where movable or immovable property is given by a parent or athird-party to a woman in consideration of marriage.
The fact that this gift is given in contemplation of marriage distin-guishes it from an ordinary free will gift. A dowry is a gift created for themarriage. If this dowry or any portion thereof is given to the woman andremains her own separate property, then no problem can arise if andwhen a divorce does take place. (See Fernando v. Fernando, (2)).
In this country, for example, a woman can be given cash, jewellery, aparcel of land, a house, furniture, a motor vehicle, stocks, bonds andcompany shares as dowry. It these remain in her name and are soregistered, then there is no problem in the event of a divorce. They remainher own separate property.
Section 5(1) of the Married Women's Property Ordinance, No. 18 of1923, lays down that a married woman shall be capable of acquiring,holding or disposing by vyill or otherwise any movable or immovableproperty as her separate property as if she were a feme^sole.
CA Premanie Samarasinghe v. Leelaraja Samarasinghe (Wijeyaratne, J.)37
Section 7 lays down that a married woman shall be entitled to have andto hold as her separate property and to so dispose movable andimmovable property which shall belong to her at the time of marriage prwhich is acquired by her or devolves upon her after marriage, includingearnings and property gained or acquired by her in any employment,trade or occupation or by the exercise of any literary, artistic or scientificskill.
Section 13 makes similar provision in the case of bank deposits,shares, stocks, debentures or other interests in any corporation, com-pany, public body or society.
However, when this dowry or any portion thereof (given on behalf of awife) is actually given to or used by the husband, or if the husband hasalready derived any benefits therefrom or will derive in the future anybenefits by reason of that marriage, then if the marriage is dissolved dueto the fault of husband, he has to forfeit those benefits.
In an action for judicial separation too, it would appear that an orderfor forfeiture of accrued benefits (but riot future benefits) could beobtained. (See Hahlo in the same book at 248 and 363). In respect of suchproperty the wife has the right to recover such property even if thedominium has passed to the husband. The character o* dowry property ■does not change merely because the property given as dowry is used orinvested in some other form of property.
The Roman-Dutch Law rule, that a guilty party forfeits the benefitsderived from the marriage has long been part of our law and has beenrecognised as such by many decisions of the Supreme Court over theyears.
Hahlo in the same book at page 362 says –
‘The effect of a divorce on the property rights of the spousesdepends upon whether they were married in or out of community ofproperty. If further depends upon whether or not an order for forfeitureof benefits was made against the defendant.
. Since the law considers that a spouse should not be allowed tobenefit financially from a marriage which has been wrecked through
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(1990] 1 Sri L.R.
■ his (or her) fault, the plaintiff, in an action for divorce on the grounds ofadultery or malicious desertion, may claim as against the defendantthe forfeiture of all financial benefits, past and future, which the latterhas derived from the marriage or is to derive-from the marriage infuture, whether by way of community of property or under an ante-nuptial contract: An order for forfeiture of benefits will not be made bythe court unless it is claimed by the plaintiff, but if it is claimed and adivorce is granted, the court has no discretion to withhold the order."
I might, mention that some changes have been effected since then inSouth African law by.the enactment.in that country of the Divorce Act, No.70 of 1979 (section 9).
For example, in this country, a husband could be given by way of dowryfrom or on behalf of the wife a house or parcel of land or cash. With thecash he may have bought a house or a motor vehicle in his name. Duringthe marriage the wife may have contributed her earnings for a similarpurpose by the husband. The wife may have even contributed her moneyfor the building of a house by the husband. Then il the marriage isdissolved owing to the fault of the husband he is liable to forfeit thosebenefits.
Then the next question that arises Is in what form such relief should beclaimed in an action. It seems to me that this could be done in one ot thefollowing ways >
For the restitution of total property on the basis that it belongs toihe wife and that the husband had only the usufruct thereof. (Seethe observations of Maartenz, J, in Karunanayake v.Karunanayake, (3) and the unreported case of Cooray v. Lili deSilva [A).
Where the dominium has passed to the husband, it could be re-claimed on the basis of forfeiture of benefits.
On the basis that the husband holds such property in trust for thewife. This is on the basis thai though the legal title is in thehusband, the wife is entitled to the beneficial interest therein.Section 83 of the Trusts Ordinance is relevant and applicable. Inthis case issues 9 (b) and 10 are on the basis of a trust.
CA Premanie Samarasinghe v. Leetaraja Samarasinghe (Wijeyaratne, J.)39
See the judgment of Wimalaratne, J., in the case of Abeyratnev. Nanda Wickremaratne (5), where K was held that the moneygiven to the husband and which was used by him to purchase acar was held in trust for the benefit of the wife.
Where cash is given to or expended on his behalf by the wife, thewife can ask for return of same on the basis of forfeiture ofbenefits. (See the decision in Grace de Alwis vs. Walter de Alwis,(6)).
It is precisely for this type of forfeiture of benefits that issues Nos. 9 to13 have been framed in this case on behalf of the defendant wife.
In the case of Fernando vs. Fernando (2) it was held that the statutoryprovisions in sections 617 and 618 of the former Civil Procedure Codehave not abrogated the remedies available under the common law andthat the parties should elect to claim eitherthe remedy .underthe commonlaw or those available under the Civil Procedure Code.
It is also appropriate to add at this stage that section 23 (1) of theMarried Women's Property Ordinance, No. 18 of 1923, provides that inany question between husband and wife as to the title or possession ofproperty, either party or any such bank, corporation, company, publicbody or society as aforesaid, in whose booksany stocks, funds or sharesof either party may be standing, may apply by petition by way of summaryprocedure to the District Court and the District Judge may make suchorder as he thinks fit after inquiry, it is doubtful whether this section canbe used where the husband and the wife have been divorced.
Then the important question arises whether those matters covered byissues 9 to 13 can be set up in a divorce action or an action for judicialseparation.
The learned Additional District Judge followed the decision inSenadhipathi v. Senadhipathi (1) and held that they cannot be set up inthe present case. In that case where the plaintiff (wife) sued the defendant(husband) for a divorce on the ground of malicious desertion and aduiteiy,and the defendant counter-claimed for divorce on the ground of plaintiff'sadultery and in his answer claimed similar reliefs as covered by issues 9to 13 in this case. Soertsz, J , held that these matters cannot beintroduced into the trial of a divorce case.
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The main question to be decided in that case related to the amount ofstamp duty for the appeal. For the purpose of that decision Soertsz, J.,(with Heame, J., agreeing) held that these matters cannot be introducedinto the trial of a divorce action. He' carefully analysed sections 597,607and 608 of the Civil Procedure Code and held that these sections did not'contemplate any other kind of relief, and also held that section 36 of theCivil Procedure Code did not apply to matrimonial actions.
Wijeyewardene, J., (as he.then was) in a dissenting judgment held thatsection 598 of the Civil Procedure Code merely enlarges the rights of aparty with regard to joinder of causes of action and does not have theeffect of preventing a plaintiff from joining several causes of action ascontemplated by section 36 of the Civil Procedure Code. He stated, “l am,therefore, of opinion that in the case,contemplated by me, the wife couldin accordance with law make a claim in respect of movable property,subject of course to the right of the court under section 36 to order aseparate trial."
However, since then, by amending Law, No. 20 of 1977, some of thesesections have been amended or repealed.
Sections 597, 607 and 608 of the Civil Procedure Code in force nowleave these sections unchanged except that sections 597 and 608 havebeen sub-divided and new subsections have been added, which arenumbered as 597(2) and 608(2) respectively.
Sections 597(2) lays down that the Conciliation Board Act shall notapply to matrimonial actions. Sectiort 608(2) provides that under certaincircumstances a decree of separation could lead to a decree of dissolu-tion of marriage.
The old section 615 has been replaced with a new section 615. Thenew section 615 (1) reads as follows
Sec. 615(1) new. ‘The court may, if it thinks fit, upon pronouncinga decree of divorce or separation, order for the benefit of eitherspouse or of the children of the marriage or of both, that the otherspouse shall do any one or more of the following
CA Premanie Samarasinghe v. Laelaraja Samarasinghe (Wijeyaratne, J.)41'
make such conveyance or settlement as the court thinksreasonable of such property 6r any part thereof as he maybe entitled
pay a gross sum of money;
pay annually or monthly such sums Of hioney as the courtthinks reasonable;
secure the payment of such sums of money as may beordered under paragraph (b) or paragraph (c) by the hy-pothecation of immovable property or by the execution of aborKl with or without sureties , of by the purchase Of a policyor annuity in an insurance company or other institutionapproved by court ”
Section 616 and 617 have been repealed (the latter section gives thecourt power to order the settlement ofproperty belonging to an adulterouswife in favour of her husband or children).
. Section618remainsunchanged,butunderthissectionordersrelatingto application of the property settled can be made only after decree fordivorce or separation.
How then can court make an order under the new section 615(1) inrespect of property which a party is entitled to or order the payment ofsums of money as the court thinks reasonable except by going into thesematters at the main trial itself. in my opinion the words " upon pronouncinga decreie of divorce or separation" imply that these questions which canrelate to forfeiture of benefiis by the guilty spouse could be put in issueat a trial for divorce or separation. Though it can embarrass the trial of themain issues by introducing a whole volume of other evidence, neverthe-less it has the following advantages
The parties are already before court and it is convenient to go intothese matters in the same case itself;
(f>) If a separate action is filed for forfeiture of benefits (as has beendone in the cases cited above except in the case of Karunanay-ake v. Karunanayake (3)) there will be delay and expense to beincurred by the parties.
In Karunanayake’s case a claim for the return of the dowry wasmade by the plaintiff wife in the divorce action against her
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husband. At the hearing in appeal,, learned counsel tor thedefendant-appellant had argued that the court having matrimo:nial jurisdiction cannot try a claim tor damages for breach of trust.In this case it was held that the wife was not entitled to recover.Rs.5,000 given as dowry as movable property vested in thehusband under section 17 of the Matrimonial Rights and Inheri-tance Ordinance, No. 18 of 1876, (under which Ordinance theparlies were married). .~
It could be argued that sections 34 and 207 of the Civil ProcedureCode oblige a party to set up every kind of relief which could beset up. Thereby a multiplicity of actions is avoided.
What is most important is the wording of the new section 615 (1) of theCivil Procedure Code which strongly suggest that reliefs by way offorfeiture of benefits could be clairried in an action for divorce or separa-tion, upon pronouncing the decree.
I am therefore of the view that these issues 9 to 13 could be raised inan action for divorce or judicial separation.
However in this particular case-before us there are two very goodreasons why the matters covered by issues 9 to 13 cannot be raised inthe present action. They are –
The defendant-petiiioner in her answer has not counter-claimedfor a divorce or separation on the ground of any matrimonial faulton the part of the plaintiff-respondent, but has merely asked forthe dismissal of the plaintiff's action. To obtain the kind of reliefclaimed in issues 9 to 13, it must be shown that there was somematrimonial fault on the part of the plaintiff-respondent by whichhe forfeits these benefits. For this purpose the defendant-peti-tioner must pray for a divorce or separation, which she has notdone.
If the defendant succeeds in this action, the plaintiff’s action willbe dismissed and she will not be entitled to the reliefs claimed byher.
If the plaintiff succeeds in the action, then he will obtain judicialseparation on account of some matrimonial fault on the part of thedefendant.
CAPremanie Samarasinghe v. Leekraja Samarasinghe (Wijeyaratne. J.)43
Therefore thedefendantinthis case is on the horns of a dilemma.Whatever th$ result of the case will be, she cannot get the reliefsset up in issues 9 to 13. Hence on this around these issues cannotbe allowed.
(2} Case No. ZL/4940of the District Couit of Colombo lias been filedby the plaintiff-respondent against the defendant-petitioner; thecase has been heard and the judgment is reserved in the case.Several of the issues framed in that case (for iostance issues 7,9,10 and 12) are identical or almost identical With issues 9 to l 3in the present case.
Any court has an inherent power to stay an action in one court whereanother action on the same subject-matter is pending in another court.Here only the judgment remains to be delivered in the other Case. For.thisreason too issues 9 to 13 cannot be allowed in the present action: .
Therefore, for thesereasons I am of opinion that issues 9 to 13 cannotbe allowed in this case and I affirm the order of the Additional DistrictJudge dated 21.7.1 S89 rejecting these issues.
The application of the defendant-petitioner is dismissed with costspayable to the plaintiff-respondent.
As it was agreed by counsel that leave to appeal application No. 83/
89 will abide the decision in this case, that application also standsdismissed.
P.R.P. PERERA, d. -1 agree.Application dismissed.