085-NLR-NLR-V-37-SIVAPAKIAM–et-al.-v.-NAWAMANI-AMMAL.pdf
386
Sivapakiam v. Nawamani Ammal.
1935
Present: Soertsz A.J.
SIVAPAKIAM et al v. NAWAMANI AMMAL.
50—C. R. Colombo, 4,044.
Husband and wife—Liability of husband for necessaries supplied to wife—'Wifeliving separately—Husband’s misconduct—Roman-Dutch law—CourtsOrdinance, s. 39
The rule of the Roman-Dutch law that the liability of the husbandfor necessaries supplied to the wife depends upon their having a commonhousehold does not apply where the wife has separated from the husbandowing to the bad character of the latter.
SOERTSZ A.J.—Sivapakiam v. Nawamani Ammal.
387
^ PPEAL from a judgment of the Commissioner of Requests, Colombo.y'adesan, for second defendant, appellant.
T.S. Fernando (with him H. N. G. Fernando), for plaintiff, respondent.
Cur. adv. milt.
July 17,1935. Soertsz A.J.—
This appeal was pressed before me by Mr. Nadesan, firstly on the lawand secondly, with permission, on the facts. On the law, he maintained thatthe husband, his client, was not liable on the plaintiff’s claim, becauseat the time the claim was created, his wife was, to the knowledge of theplaintiff, living apart from him. It was argued -that the liability of thehusband for necessaries supplied to the wife was dependent upon thehusband and wife living together and having a common household. InJardon v. Watson & Co.' referred to in I Nathan p. 244, it was held thatwhere the wife had left her husband’s house without his consent and thereis no common domestic establishment, the husband is not liable for thewife’s purchases of necessaries for herself. This decision, Nathancomments, is based on the rule laid down by Voet that where a wife iswrongfully away, her husband is not bound to supply her with alimentoutside his house. The passage in Voet which Nathan is paraphrasing is“ Interim durante absentia injusta, maritum ad alimenta uxori extradomum suam praestanda obstrictum non esse,” Monet Groenewegen.. .—Leeuwen Cens. For. Part 1. lib. i cap. 15. Num. 19.
“Rodenbruch de Jure Conj'Ugum ….” t tit 2, parte, altera, cap. 1,
num. 4, p. 106, diver sum esset,—“ si autoritate publica separatio thoriac mensae impetrata esset et ita mulier extra viri domum haereat:tunc enim congrua uxori alimenta a viro subministranda essent, sivtri ipsus mali mores isti separationi thori et mensae causam dedissent. ”
Now in this case the order made in Additional Police Court, Colombo,No. 15,159, was read in evidence. That was a maintenance case andthe learned Commissioner says with reference to it “ It is not deniedthat the first defendant had to leave her husband on account of his cruelty ”and that an order of maintenance has since been made against him. Thecase therefore .falls within the provision that says that if the separationfrom bed mid board is due to the husband’s bad ways “ viri ipsius malimores ”, the husband had to provide maintenance suitable to her station“ Congrua uxori alimenta subministranda ”. In this case the“ maintenance” of the wife cost Rs. 20 a month and it cannot be said thatthis is excessive or “ non congrua ”. I, therefore, hold that the firstpoint taken on appeal fails. As regards the second point, counselfor the appellant contended that the plaintiff came into Court on thefooting that the first defendant had borrowed various sums aggregatingRs. 86.25, but that the evidence did not disclose a case of borrowingat all, but that it was a case in which the plaintiff had expended certainsums of money on behalf of the first defendant. It is said that theCommissioner has awarded the plaintiff Rs. §0 for money spent byher in connection with the funeral of the defendant’s child, whereas
* 6 Natal Law Reports.
388
Silva v. Silva.
this sum was included in the Rs. 86.25 as money borrowed. If theissue had been definitely raised “ whether the plaintiff had incurred thisexpenditure on account of the funeral, the second defendant appellantwould have been able to .show that he had spent for the funeral ”. Thereis technical merit in this contention, but I think it is the kind of contentioncontemplated in section 39 of the Courts Ordinance which says nojudgment, sentence, or order pronounced by any Court shall on appeal…. be reversed, altered, or amended on account of any error,
defect, or irregularity which shall not have prejudiced the substantialrights of either party ”. In this case the plaintiff said in the course ofher evidence “ The second defendant did not come either for the birthor for the funeral of the child ”. This was not contradicted. In factthe second defendant gave no evidence and I do not think he can nowsuccessfully contend that he spent for the funeral. The sum allowed onthis account is moderate.—
I would, therefore, dismiss the appeal with costs.
Appeal dismissed.