( 101 )
SILVA HAMINE o. AGONIS APPUHAMY.
D. C., Negombo, 4.
Husband, and wife—Separate estate of wife desiring to deal with it, without herhusband’s consent or concurrence—Ordinance No. 15 of 1876, s. 12-Proper course to take.
Where a wife, owning immovable property, lives separate from herhusband and desires to lease a portion of it without his consent andconcurrence, the proper course, under section 12 of Ordinance No. 16of 1876, is not to apply for a general order empowering her to leasewithout her husband’s consent and concurrence, but to bring theproposed lease before the court and ask that her husband’s concurrencein it should be dispensed with.
HIS was an application made under section 12 of OrdinanceNo. 15 of 1876 by the wife of one Agonis Appuhamy, the
respondent, for an order authorizing her to deal with one of herproperties without his consent. It appeared that the applicantand respondent were married in 1885, and that since July, 1898,the applicant had left the respondent’s house and lived apart fromhim, apparently by mutual consent. The District Judge, afterhearing the parties, ordered that the applicant should have powerto lease out one-fourth of the separate estate without therespondent’s consent, but that she should file in Court a statement
( 102 )
1900.showing what property she wished to lease out, to whom, and upon
June 6.what terms, and that upon such information being submitted the
Court would make a definite order in respect of the lease.
The applicant appealed.
Sampayo, for appellant.—In view of section 9 of the Matri-monial Rights and Inheritance Ordinance of 1876, the applicantpetitioned the District Court under section 12. The property isnow in charge of her husband, and as she lives separate from himshe desires to lease it herself. [Bonser, C.J.—Section 12necessitates proof that the husband withheld his consent unreason-ably. Before coming into Court you should present to thehusband a deed of lease, and if he refuses to give his consent youmay pray that his consent may be dispensed with.] The wife hasalleged that her husband has withheld his consent unreasonably.It being admitted that the property in question is her separateestate, she is entitled to the profits of the whole. The DistrictJudge is wrong in imposing conditions upon her.
Van Langenberg, for respondent.—The conditions imposed areproper under section 12, and seem to be required by the justiceof the case. Section 9 of Ordinance No. 15 of 1876 gives the wifehaving a separate estate full power of disposing of and dealingwith such property with the written consent of her husband.The order of the District Judge, so far as it goes, is correct. If theappellant wants further powers, she could apply to the Courtagain.
I think this appeal must be dismissed.
The appellant has mistaken her rights. She is the owner ofcertain immovable property, and she and her husband are livingseparate, apparently by mutual consent. She wishes to leasepart of the property, and she has applied to the Court under section12 of Ordinance No. 15 of 1876 for a general order empoweringher to lease the property without her husband’s consent andconcurrence in the lease.
It seems to me that what she ought to have done was to havebrought the proposed lease before the District Judge and to haveasked that her husband’s concurrence in that lease should bedispensed with. She could then have brought before the Courtall the facts of the case regarding the lease, the parties to thelease, the rents to be paid, &c., and the Court would then havebeen able to say whether the case was one in which the husband’sconsent might properly be dispensed with. I understand that
( .103 )
the Court is quite willing to make an order, if these conditionsare complied with. I do not understand that the District Judgehas made a formal order that under no circumstances can shelease more than one-fourth of the property. If he made such anorder, it would be wrong. It will be open to her at any time tomake a similar application to the Court in respect of herremaining property.
SILVA HAMINE v. AGONIS APPUHAMY