020-NLR-NLR-V-28-SOPIE-NONA-ABEYADEERA-v.-PODISINGHO.pdf
( 158 )
1926.
Present: Schneider A.C.J. and Maartensz A..J.
SOPIE NONA ABEYADEEBA PODISINGHO.
76—D. C. Matara, 1,815.
Seduction—Claim for damages—Prescription.—Section 10 of OrdinanceNo. 22 of 1871.
A claim for damages, arising from seduction, is prescribed intwo years from the date of defloration.
A
PPEAL from a judgment of the District Judge of Matara.The facts appear from the judgment.
H. V. Perera, for defendant appellant.
Navaratnam, for plaintiff, respondent.
October 14, 1926. Maartensz A.J.—
The defendant appeals from a decree directing him to pay toplaintiff a sum of Bs. 300 as damages for seducing her.
The plaint was filed on June 25, 1925. The seduction accordingto the plaint took place on or about December 8, 1921; accordingto the evidence, on October 26 in the same year.
The only question argued in appeal was whether the claim wasprescribed. The answer to the question depends on whether theprescription began to run from the date of the seduction or from asubsequent date and on the section of the Prescription Ordinanceapplicable to the claim.Sl '
t 150 ,)
Injuries ore classified by Voet us (1) real. (2) vcrlml or oral, (3)literal or written, and (4) consensual.
Real injuries include* seducing a virgin (4S.5.1.). The foundationof the Roman-Dutch law action for seduction of a virgin avisos fromthe injury to herself. I am therefore of opinion that the sectiongoverning the claim is section 10 of Ordinance No. 22 of 1871, whichenacts that no action shall be maintainable for any loss, injury, ordamages unless the same (shall be commenced within two yearsfrom the time when the cause of action shall have arisen.
My opinion is supported by the judgment*of Withers J.f withwhich Bonser C.J. agreed, in an anonymous case reported in Koch9*Reports at page 59, where he held that actions for damages fo>*seduotion came within the provisions of section 10 of the Ordinance.It was in effect held in the case that prescription began to run fromthe date the seduction took place.
Respondent’s counsel, however, contended that iu this case thecause of action arose from the date when the defendant by hismarriage with another woman put it out of his power to marrythe plaintiff. This argument is based on the facts. The learnedDistrict Judge has found that the defendant lived with the plaintiffunder a promise to marry from 1921 to 1924, and then deserted herand married another woman.
1 am unable to agree with this argument put forward byrespondent’s counsel that the cause of action must be taken tohave arisen from the date of defendant's marriage. It bears, Ithink, its own condemnation, for carried to its logical conclusionif defendant deserted plaintiff but did not marry another womanshe would have no cause of action. Such a result must follow theattempt to fix the date of the cause of action arising from one*iajury by reference* to the date on which another injury wascommitted.
Kotze in his translation of Van Leenwen's Commentaries, Volt II..page 303, notes that the action for defloration and lying-in expensesis prescribed in five years quoting from Cons. Bat Vol. /. cons. 148.Van Zyl quoting from the same authority says definitely that theaction for seduction becomes prescribed and cannot be broughtafter a lapse of five years from the alleged date of defloration. SeeJudicial Practice, page 48.
It may be taken, therefore, that under the Roman-Dutch lawprescription begins to run from the date the injury was committed.
The same view was expressed in the anonymous case referred toabove. The facts in that case are very similar, the plaintiff having-lived with the defendant after seduction for two years before he*deserted her. Again, in the case of Lucinahamy v. Diashamy '
28/14
1926.
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, ( 160 )
Afr. Justice Middleton observed thm an action lor deflorationmust be brought ut once on the completion of the first act oiintercourse.
The authorities, in my opinion, clearly establish that prescriptionbegins to run from the date of defloration. I accordingly hold thati lie present action is prescribed and would allow the appeal anddismiss plaintiff’s action, but in the circumstances I am of opinionthat there should be no order as to costs in either Court.
Schxeidkh, A.C.J.—I agree.
Aiqmal allowed.