130-NLR-NLR-V-54-S.-D.-M.-DEAN-Appellant-and-E.-A.-ANTHONISZ-et-al-Respondent.pdf
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Dean v. A.nthonisz
XIn the Privy Council]
Present: Lord Normand, Lord Cohen, Sir Lionel Leachand Mr. L. M. D. de SilvaS. D. M. DEAN, Appellant, and E. A. ANTHONISZ,et al., Respondents
Privy Council Appeal No. 48 op 1951
S. C. 492—D. G. Colombo, 1,580
Divorce—Adultery of wife—Assessment of quantum of damages.
In an action for divorce instituted by a husband against his wife on theground of adultery, the two main considerations governing the award ofdamages as against the co-respondent are (a) the actual value of the wife tothe husband, (6) compensation to the husband for injury to his feelings, theblow to his marital honour and the loss to his matrimonial and family life.In assessing the damages the Court may take into account the fact that theplaintiff was indiscreet in allowing the close association of the co-respondentwith his family too long and only took action when matters had gone too far.
PPEAiL from a judgment of the Supreme Court.
Stephen Chapman, for the second defendant appellant.
t.
No appearance for the respondents.
Cur. adv. vult.
SIR LIONEL LEACH—Dean v. A.nthorvisz
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Juse 29, 1953.[.Delivered by Sib Lionel Leach]—
This is an appeal from a judgment and decree of the Supreme Courtof Ceylon, dated the 1st September, 1950, affirming a judgment anddecree of the District Court of Ceylon, dated the 21st December, 1948,in matrimonial proceedings instituted by the first respondent againstLin wife, the second respondent, in which the appellant was cited as aco-defendant. The first respondent claimed against his wife a decree ofdivorce a vinculo matrimonii on the grounds of malicious desertionand adultery with the appellant and against the appellant an order forthe payment of Its. 25,000 as damages. The second respondent deniedthat she had maliciously deserted her husband,, but admitted adulterywith the appellant. The appellant admitted the averments in the plaintin so far as they concerned him, but resisted the claim for damages.He contended that having regard to the first respondent’s conduct andto all the circumstances of the case the Court should not award damages.
The District Judge negatived suggestions of connivance and condona-tion on the part of the first respondent and found that the second respon-dent had maliciously deserted her husband, that she had been living inadultery with the appellant since the month of October, 1946, and thatthe first respondent was entitled to recover from the appellant Its. 10,000as damages. Accordingly he granted the first respondent a decree nisidissolving his marriage with the second respondent and ordered the appel-lant to pay to the first respondent Its. 10,000 and his costs of the action.He also directed that the first respondent should have the custody ‘of thetwo children of the marriage. The appellant appealed to the SupremeCourt against the finding of the District Judge on the issue as to damages,but his appeal was dismissed with costs. In his appeal to Her Majestyin Council the appellant asks that the award of damages be set aside ormodified.
Before the Board Sir. Chapman on behalf of the appellant raised two-contentions. In the first place he said that in awarding Rs. 10,000 asdamages the District Judge was wrongly influenced by a finding that theappellant had won the affections of the second respondent by his wealthand the giving of expensive presents and submitted that it had not beenproved that expensive presents had been given. In the second place hesaid that the figure of Rs. 10,000 was so large that it was out of all pro-portion when taken into consideration with the class of people concerned.
The first and second respondents were married on the 28th December,1933. The first respondent was then employed by a commercial firm inColombo, apparently as a stenographer, at a salary of Rs. 175 a month.At the time of the hearing his salary was Rs. 250 a month “ plus allow-ance*’. The second respondent supplemented the family income bydressmaking and supplying meals to pupils and teachers at a school in theneighbourhood in which they were then living.
The appellant is the proprietor of a paint shop and is of a differentcommunity from that of the respondents. He is himself a married manwith seven children. He made the acquaintance of the respondents in1944 and became a visitor at their house. Later he took his meals thefe
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SIR LIONEL LEACH—Dean v. Anthonisz
and in June, 1945, he began to sleep there. In the course of his evidencethe first respondent said that he found that his wife and children weregoing too often with the appellant to cinemas. He objected to this andin September, 1945, he spoke to the appellant about the matter. Theappellant took offence at this and kept away from the house. Thesecond respondent then commenced staying away from home at night.When her absences became more frequent and for longer periods hediscovered that the appellant bad bought a house in the name of thesecond respondent in another district and was living with her there. Inorder to see her children she used to go back to the family house duringthe day time when the first respondent was away and would leave beforehe returned in the evening. That continued throughout 1946. The firstrespondent also stated that he asked his wife to return to him for thesake of the children. On the 20th December, 1946, he met her and sheconfessed that she was pregnant. She said that if she got over hertrouble she would come back, but on the 31st December, 1946, sheinformed him that she had changed her mind. He instituted the proceed-ings in March, 1947, when he found there was no hope of her everreturning to him.
It is not necessary for their Lordships to discuss the evidence on whichthe District Judge came to the conclusion that it was the wealth of theappellant and the giving of expensive presents that won the second respon-dent’s affections and resulted in the breaking up of the first respondent’shome, because it is clear that the District Judge was not influenced bythis finding when he came to assess the damages. The appellant didbreak up the home and the only question is whether the District Judgeassessed them on a proper basis. In dealing with this question theDistrict Judge said :
“ I am of opinion that the plaintiff is entitled to some substantialdamages. As pointed out by the Supreme Court in the case of Alles v.Alles the two main considerations governing the award of damagesare (a.) the actual value of the wife to the husband, (b) compensationto the husband for injury to his feelings, the blow to his maritalhonour and the loss to his matrimonial and family life. The first defen-dant in this case was of some value to plaintiff as she ran his housewell and helped to supplement the family income. Taking into accountthe fact that plaintiff was rather indiscreet in allowing the closeassociation of the 2nd defendant with his family to continue so longand only took action when matters had gone too far, I assess thedamages under heads (a) and (6) already referred to at Rs. 10,000.”
There is here stated in precise terms the basis on which the District Judgeproceeded to make the assessment and their Lordships consider that itwas the correct basis.
The judgment of the Supreme Court in Alles v. Alles to which theDistrict Judge refers is reported in 46 N. L. R. at page 217. In that casethe trial Court awarded the husband Rs. 15,000 as damages, but on appealthe Supreme Court reduced the amount to Rs. 10,000. The SupremeCourt’s judgment was the subject of an appeal to Her Majesty in Council
The Queen v. iSathasivam
54 r
and the award of Rs. 10,000 damages was upheld by the Board (51JNT. L. R. 416). In delivering the judgment of the Board in that case-Lord Radcliffe observed:—
“ It is avowedly based partly on the scale of damages usuallyawarded in the Courts of Ceylon : moreover the assessment of thequantum of damages, as indeed the assessment of what is prudentand of what is careless in social relations, depends essentiallyupon a familiarity with local conditions which is possessed by theSupreme Court to a much greater extent than it can be by themembers of this Board.”
Those observations have full force here and there is the additional factorthat in the present case the Supreme Court accepted the figure arrived atby the trial Court. In these circumstances there is really no room leftfor argument.
Their Lordships will humbly advise Her Majesty tha^ the appeal shouldbe dismissed. As the respondents were not represented at the hearingthere will be no order as to costs.
Appeal dismissed.