SAMARASINGHE v. SAMARASINGHE

018-SLLR-SLLR-1989-V-2-SAMARASINGHE-v.-SAMARASINGHE.pdf


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SAMARASINGHE
v.
samarasingKe
COURT OF APPEAL
P.R.P. PERERA, J. AND WIJEYARATNE, J.
A. APPLICATION No. 587/89
C. COLOMBO 12599/DNOVEMBER 06, 1989.
Divorce – Forfeiture of benefits – Who can claim it and when – Civil Procedure Code,s.615(1)
The words "upon pronouncing a decree of divorce or separation" in the new section615(1) of the Civil Procedure Code imply that issues relating to forfeiture of benefits bythe guilty spouse could be raised in an action for divorce or separation.
As forfeiture of benefits can be ordered only against a guilty spouse on proof ofmatrimonial fault in this particular case as the defendant wife had not counterclaimedfor a divorce or separation, it is not open to her to raise such issues.
Senadhipathi v Senadhipathi 43 NLR 272 not followed.
Cases referred to :
.Senadhipathi vs. Senadhipathi 43 N.L.R. 272
Fernando vs. Fernando 63 N.L.R.416
Karunanayake v Karunanayake 39 NLR 275, 280
Cooray v Leili de Silva S.C. 80/73(F) – D.C. Panadura No. 12356/M. S.C. MinutesOf 15.8.1978
Abeyratne v. Nanda Wickremaratne C.A.(S.C.) 131/73(F) – D.C. Colombo70204/M – S.C. Minutes of 31.7.1980
Grace de Alwis vs. Walter de Alwis 76 N.L.R. 444
APPLICATION for revision of order of District Court of Colombo.
I.G.N. Jacolyn Seneviratne with F.C. Perera and Miss. Damayanthi de Silva for defen-dant-petitioner.
Romesh de Silva, P.C. with Ian Fernando and Geethaka Goonewardena forplaintiff-respondent.
Cur adv. vult.
December 13, 1989.
WIJEYARATNE, J.
The plaintiff-respondent (husband) filed this action on 7.11.1984against the defendant-petitioner (wife) for a decree of separation on
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the grounds set out in the plaint. The defendant-petitioner filed ans-wer denying that any cause of action has accrued to the plaintiff-res-pondent to sue her, and prayed that the plaintiff-respondent’s actionbe dismissed.
The defendant-petitioner further averred that she is entitled to adeclaration –
that the legal title of the matrimonial home, 66/7, AnandaCoomaraswamy Mawatha (Green Path), Colombo 3, was in herand that she is entitled to the beneficial interest therein;
that she is entitled to the movables set out in paragraph 29 ofthe answer and the schedule, or the value thereof;
that she is entitled to judgment in a sum of Rs. 30,000/-, beingthe dowry 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 paragraphs 9 and 11(a) of the answer, didthe defendant spend monies for the purchase of the land,construction and improvement of the buildings standingon premises No.66/7, Green Path?
If so, is the defendant entitled to a declaration that thesaid property is held in trust for the benefit of thedefendant?
(a) From 1970 to 1984 were all monies earned by the
defendant spent for the purchase of the said land,construction of the house on the said land and foreffecting improvements thereon?
Did the defendant directly or indirectly or in any other waycontribute for the purchase of the said property?
. (c) If issues 10(a) and 10(b) are answered in the affirmative,is the said property held in trust by the plaintiff for thebenefit of the defendant?
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 movablesmentioned in paragraph 3 of the answer and the schedule
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thereto, or the value thereof?
(a) Are premises No.66/7, Green Path, Colombo 3, thematrimonial home of parties?
(b) If so, is the defendant entitled to the rights of residencetherein?
Learned counsel for the plaintiff-respondent objected to the issueson the ground that they cannot be set up in a divorce action or in anaction for judicial separation.
The learned Additional District Judge held that these reliefs can besought only after the decree absolute has been entered and thatsection 618 of the Civil Procedure Code does not permit thesematters to be raised in this action.
The learned Additional District Judge relied on the decision ofSenadipathi vs. Senadhipathi (1) and by her order dated 21.7.1989disallowed the said issues.
Being dissatisfied, the defendant-petitioner has filed this applicationin revision.
The defendant-petitioner has also filed an application for leave toappeal from this order (bearing No.83/89) and counsel agreed thatthe order in the leave to appeal application will abide the order in thiscase.
I have considered the submissions made by Mr I.G.N. JacolynSeneviratne for the defendant-petitioner and Mr Romesh de Silva,President’s Counsel, for the defendant-respondent.
The practice of giving dowry on behalf of a woman has long beenprevalent among the indigenous people of this country (and also inthe adjoining 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 theSinhalese the dowry is an important part of marriage which is still amatter of arrangement between the bride’s parents and thebride-groom or his family”. This is in reference to the KandyanSinhalese.
The same observation applies to the Low Country Sinhalese. Thepractice prevails even more strongly among the Tamil population ofthis country. (See sections 1 to 6 of the Thesawalamai Code, which
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is generally applicable to the Tamils of the Northern Province. Insection 1 dowry is referred to as “Chidenam”). Among the Muslimsthere is “Kaikuli” which is a dowry given by the bride’s parents to thegroom, while “Mahr” is given by the groom to the wife. The practiceis so well recognised that a daughter’s share in the parentalinheritance is thereby affected as this is an alternative method ofproviding for her. (See also section 35 of the Matrimonial Rights andInheritance Ordinance, No. 18 of 1876, relating to hotchpot orcollation).
In Roman-Dutch Law (which is the common law .of this countryapplicable to the Low Country Sinhalese and others not governed inthis matter by' their own special laws as set out above) there was“dos” and “donatio propter nuptias". “Dos” (or dowry) is describedby Voet as “property which is given by a woman of someone else onher behalf to a husband so that he may bear the burden of themarriage” – (23.3.2).
“Donatio propter nuptias” (or donation on account of marriage) isgiven from the side of the husband to the wife by way of return andas security for the dowry. (Voet 23.3.21). We are not concerned withthat aspect here in this case.
In Roman-Dutch Law, community of property prevails between thespouses and was part of our common law until its abolition by theMatrimonial Rights and Inheritance Ordinance, No.18 of 1876
(section 7).
“Dos” (or dowry) could be excluded from the community byante-nuptial contract.
Hahlo in his book “The South African Law of Husband and Wife” -1953, 1st Edition, at page 174, says that an ante-nuptial contract isan agreement between intending spouses as to the terms andconditions by which their marriage is to be governed.
Hahlo in the same book at page 203 states that in modern lawthere is, to all intents and purposes, only one form of ante-nuptialcontract and that it is one which excludes community of property andprofit-and loss and the marital power of the husband. As ante-nuptialcontract could also deal with marriage settlements which are given inconsideration of marriage.
These are the variable consequences of marriage in contrast toother consequences which could not be varied even by agreement,such as the reciprocal duties of cohabitation, fidelity and support.
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Professor R.W.Lee in his book "An Introduction to Roman-DutchLaw” – 5th Edn. – 1953, in Appendix “A" at page 414, gives theform of such an ante-nuptial contract in South Africa signed before anotary public and two attesting witnesses by a man and a womanabout to enter matrimony.
Thus a gift like "dos" (or dowry) could be excluded from thecommunity of property by a settlement under such an ante-nuptialcontract. It is necessary to understand this historical background asour Civil Procedure Code refers to settlements of property,ante-nuptial settlements and post-nuptial settlements.
Since community of property of spouses is no longer a part of ourlaw, there is no necessity for spouses normally to enter into suchante-nuptial contract; but there could be ante-nuptial settlements orpost-nuptial settlements of property.
Giving of dowry is such a marriage settlement. Dowry is a marriageportion where movable or immovable property is given by a parent ora third party to a woman in consideration of marriage.
The fact that this gift is given in contemplation of marriagedistinguishes it from an ordinary free will gift. A dowry is a gift createdfor the marriage. If this dowry or any portion thereof is given to thewoman and remains her own separate property, then no problem canarise if and when a divorce does take place. (See Fernando vs.Fernando, (2).
In this country, for example, a woman can be given cash, jewellery,a parcel of land, a house, furniture, a motor vehicle, stocks, bondsand company shares as dowry. If these remain in her name and areso registered, then there is no problem in the event of a divorce.They remain her 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 will or otherwise any movable or immovableproperty as her separate property as if she were a femme-sole.
Section 7 lays down that a married woman shall be entitled to haveand to hold as her separate property and to so dispose movable andimmovable property which shall belong to her at the time of marriageor which is acquired by her or devolves upon her after marriage,including earnings and property gained or acquired by her in anyemployment, trade or occupation or by the exercise of any literary,
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artistic or scientific skill.
Section 13 makes similar provision in the case of bank deposits,shares, stocks, debentures or other interests in any • corporation,company, public body or society.
However, when this dowry or any portion thereof (given on behalfof a wife) is actually given or used by the husband, or if the husbandhas already derived any benefits therefrom or will derive in the futureany benefits by reason of that marriage, then if the marriage isdissolved due to the fault of the husband, he has to forfeit thosebenefits.
In an action for judicial separation too, it would appear that anorder for forfeiture of accrued benefits (but not future benefits) could'be obtained. (See Hahlo in the same book at 248 and 363). Inrespect of such property the wife has the right to recover suchproperty even if the dominium has passed to the husband. Thecharacter of dowry property does not change merely because theproperty given as dowry is used or invested in some other form ofproperty. ,
The Roman-Dutch Law rule that a guflty party-forfeits the benefitsderived from the marriage has long been part of our law and hasbeen recognised as such by many decisions of the Supreme Courtover the years.
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 ofcommunity of property. It further depends upon whether or notan order for forfeiture of benefits was made against thedefendant.
Since the law considers that a spouse should not be allowedto benefit financially from a marriage which has been wreckedthrough his (or her) fault, the plaintiff, in an action for divorce onthe grounds of adultery or malicious desertion, may claim asagainst the defendant the forfeiture of all financial benefits, pastand future, which the latter has derived from the marriage or isto derive from the marriage in future, whether by way ofcommunity of property or under an antenuptial contract. Anorder for forfeiture of benefits will not be made by the courtunless it is claimed by the plaintiff, but if it is claimed and a
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divorce is granted, the court has no discretion to withhold theorder."
I might mention that some changes have been effected since thenin South African law by the enactment in that country of the DivorceAct, No.70 of 1979 (section 9).
For example, in this country, a husband could be given by way ofdowry from or on behalf of the wife a house or a parcel of land orcash. With the cash he may have bought a house or a motor vehiclein his name. During the marriage the wife may have contributed herearnings for a similar purpose by the husband. The wife may haveeven contributed her money for the building of a house by thehusband. Then if the marriage is dissolved owing to the fault of thehusband he is liable to forfeit those benefits.
Then the next question that arises is in what form such reliefshould be claimed in an action. It seems to me that this could bedone in one of the following ways
For the restitution of dotal property on the basis that it belongsto the wife and that the husband had only the usufruct thereof. (Seethe observations of Maartenz, J., in Karunanayake vs. Karunanayake
, and the unreported case of Cooray vs. Leili de Silva (4).
Where the dominium has passed to the husband, it could bere-claimed on the basis of forfeiture of benefits.
On the basis that the husband holds such property in trust forthe wife. This is on the basis that though the legal title is in thehusband, the wife is entitled to the beneficial interest therein. Section83 of the Trusts Ordinance is relevant and applicable. In this caseissues 9(b) and 10 are on the basis of a trust.
See the judgment of Wimalaratne, J., in the case of Abeyratne vs.Nanda Wickremaratne (5), where it was held that the money given tothe husband and which was used by him, to purchase a car was heldin trust for the benefit of the wife.
Where cash is given to or expended on his behalf by the wife,the wife can ask for return of same on the basis of forfeiture ofbenefits. (Seethe decision in Grace deAlwis vs. Walter de Alwis.( 6)).
It is precisely for this type of forfeiture of benefits that issues Nos.9to 13 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
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statutory provisions in sections 617 and 618 of the former CivilProcedure Code have not abrogated the remedies available underthe common law and that the parties Should elect to claim either theremedy under the common law or those available under the CivilProcedure 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 thatin any question between husband and wife as to the title orpossession of property, either party or any such bank, corporation,company, public body or society as aforesaid, in whose books any.stocks, funds or shares by either party may be standing, may applyby petition by way of summary procedure to the District Court and theDistrict Judge may make such order as he thinks fit after inquiry. It isdoubtful whether this section can be used where the husband andthe wife have been divorced.
Then the important question arises whether those matters coveredby issues 9 to 13 can be set up in a divorce action or an action forjudicial separation.
The learned Additional District Judge followed the decision 'inSenadhipathi vs. Senadhipathi (1) and held that they cannot be setup in the present case. In that case where the plaintiff (wife) sued thedefendant (husband) for a divorce on the ground of maliciousdesertion and adultery, and the defendant counter-claimed for adivorce on the ground of plaintiff’s adultery and in his answer claimedsimilar reliefs as covered by issues 9 to 13. Soertsz, J., held thatthese matters cannot be introduced into the trial of a divorce case.
The main question to be decided in that case related to the amountof stamp duty for the appeal. For the purpose of that decisionSoertsz, J., (with Hearne, J., agreeing) held that these matters cannotbe introduced into the trial of a divorce action. He carefully analysedsections 597, 607 and 608 of the Civil Procedure Code and held thatthese sections did not contemplate any other kind of relief, and alsoheld that section 36 of the Civil Procedure Code did not apply tomatrimonial action.
Wijeyewardene, J., (as he then was) in a dissenting judgment heldthat section 598 of the Civil Procedure Code merely enlarges therights of a party with regard to joinder of causes of action and doesnot have the effect of preventing a plaintiff from joining several
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causes of action as contemplated by section 36 of the CivilProcedure Code. He stated, “I am, therefore, of opinion that in thecase contemplated by me, the wife could in accordance with lawmake a claim in respect of movable property, subject of course to theright of the court under section 36 to order a separate trial."
However, since then, by amending Law, No. 20 of 1977, some ofthese sections have been amended or repealed.
Sections 597, 607 and 608 of the Civil Procedure Code in forcenow leave these sections unchanged except that sections 597 and608 have been sub-divided and new subsections have been added,which are numbered as 597(2) and 608(2) respectively.
Sections 597(2) lays down that the Conciliation Board Act shall notapply to matrimonial actions. Section 608(2) provides that undercertain circumstances a decree of separation could lead to a decreeof dissolution of marriage.
The old section 615 has been replaced with a new section 615.The new section 615(1) reads as follows
Sec. 615(1) new: "The court may, if it thinks fit, uponpronouncing a decree of divorce or separation, order for thebenefit of either spouse or of the children of the marriage or ofboth, that the other spouse shall do any one or more of thefollowing
make such conveyance or settlement as the court thinksreasonable of such property or any part thereof as he maybe entitled to;
pay a gross sum of money;
pay annually or monthly such sums of money as the courtthinks reasonable;
Secure the payment of such sums of money as may beordered under paragraph (b) or paragraph (c) by thehypothecation of immovable property or by the execution ofa bond with or without sureties, or by the purchase of apolicy or annuity in an insurance company or otherinstitution approved by court.”
Sections 616 and 617 have been repealed (the latter section givesthe court power to order the settlement of property belonging to anadulterous wife in favour of her husband or children).
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Section 618 remains unchanged, but under this section ordersrelating to application of the property settled can be made only afterdecree for divorce or separation.
How then can a court make an order under the new section 615(1)in respect of property which a party is entitled to or order thepayment of sums of money as the court thinks reasonable except bygoing into these matters at the main trial itself. In my opinion thewords "upon pronouncing a decree or divorce or separation” implythat these questions which can relate to forfeiture of benefits by theguilty spouse could be put in issue at a trial for divorce or separation.Though it can embarrass the trial of the main issues by introducing awhole volume of other-evidence, nevertheless it has the followingadvantages
The parties are already before court and it is convenient to gointo these matters in the same case itself.
If a separate action is filed for forfeiture of benefits (as hasbeen done in the cases cited above except in the case ofKarunanayake vs. Karunanayake (3), there will be a lot of delay andexpense to be incurred 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 husband.At the hearing in appeal, learned counsel for the defendant-appellanthad argued that the court having matrimonial jurisdiction cannot try aclaim for damages for breach of trust. In this case it was held that thewife was not entitled to recover Rs.5,000/- given as dowry asmovable property vested in the husband under section 17 of theMatrimonial Rights and Inheritance Ordinance, No.18 of 1876, (underwhich Ordinance the parties were married).
It could be argued that sections 34 and 207 of the CivilProcedure Code oblige a party to set up every kind of relief whichcould be set up. Thereby a multiplicity of actions is avoided.
What is most important is the wording of the new section 615(1) ofthe Civil Procedure Code which strongly suggests that reliefs by wayof forfeiture of benefits could be claimed in an action for divorce orseparation, upon pronouncing the decree.
I am therefore of the view that these issues 9 to 13 could be raisedin an action for divorce of judicial separation. However in thisparticular case before us there are two very good reasons why the
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matters covered by issues 9 to 13 cannot be raised in the presentaction. They are –
The defendant-petitioner in her answer has not counter-claimedfor a divorce or separation on the ground of any matrimonial fault onthe part of the plaintiff-respondent, but has merely asked for thedismissal of the plaintiff’s action. To obtain the kind of relief claimedin issues 9 to 13, it must be shown that there was some matrimonialfault on the part of the plaintiff-respondent by which he forfeits thesebenefits. For this purpose the defendant-petitioner must pray for adivorce or separation, which she has not done.
If the defendant succeeds in this action, the plaintiff’s action will bedismissed and she will not be entitled to the reliefs claimed by her.
If the plaintiff succeeds in the action, then he will obtain judicialseparation on account of some matrimonial fault on the part of thedefendant.
Therefore, the defendant in this case is on the horns of a dilemma.Whatever the result of the case will be, she cannot get the reliefs setup in issCies 9 to 13. Hence on this ground these issues cannot beallowed.
Case No.ZL/4940 of the District Court of Colombo has beenfiled by the plaintiff-respondent against the defendant-petitioner, thecase heard and the judgment is reserved in the case. Several of theissues framed in that case (for instance issues 7, 9, 10 and 12) areidentical or almost identical with issues 9 to 13 in the present case.
Any court has an inherent power to stay an action in one courtwhere another action on the same subject-matter is pending inanother court. Here only the judgment remains to be delivered in theother case. For this reason too issues 9 to 13 cannot be allowed inthe present action.
Therefore, for these, reasons I am of opinion that issues 9 to 13cannot be allowed in this case and I affirm the order of the AdditionalDistrict Judge dated 21.7.1989 rejecting these issues.
The application of the defendant-petitioner is dismissed with costspayable to the plaintiff-respondent.
. As it was agreed by counsel that the leave to appeal applicationNo. 83/89 will abide the decision in this case, that application alsostands dismissed.
P.R.P. PERERA, J. – I agree.
Application dismissed.