082-NLR-NLR-V-53-THANGAVADIVEL-Appellant-and-INTHIRAVATHY-Respondent.pdf
DIAS S.P.J.—Thangavadivel v. Inthiravathy
369
1950Present: Dias S.P.J. and Gunasekara J.THANGAVADIVEL, Appellant, and INTHXRAVATHY, RespondentS. C. 49—D. C. Jaffna, D/B30
Jaffna Matrimonial Bights and Inheritance Ordinance (Cap. 48)—Summary proceed-ings under Section 10—Plaintiff’s loss of status as wife pending inquiry—
Proceedings cannot continue. .
Where proceedings by way of summary procedure under section 10 of theJaffna Matrimonial Bights and Inheritance Ordinance were instituted by awife against her husband for the return of certain jewellery, but, while the in-quiry was proceeding, a decree absolute was entered in a divorce case dissolvingthe marriage between the spouses—
Held, that the plaintiff, having ceased to be the wife of the defendant duringthe pendency of the inquiry, lost her status to continue the proceedings. Thegeneral rule that the claims of a litigant are to be ascertained as at thecommencement of the action would not be applicable in such a case.
-^kPPEAL from a judgment of the District Court, Jaffna.
H. Wanigatunga, with V. Kumaraswamy, for the appellant (husband).A. G. Nadarajah, for the respondent (wife).
Cur adv. vult.
June 21, 1950. Dias, S.P.J.—
Spouses governed by the Jaffna Matrimonial Rights and InheritanceOrdinance, 1911 {Chapter 48), are provided with a summary remedy inregard to any questions or disputes which shall arise between themrelative to their “ separate property ”. Section. 10 of the Ordinanceprovides: —
“ 10.(1) If any question or dispute shall arise between any husband
and wife (whether married before (or after the commencement ofthis Ordinance) relative to any property declared by this Ordinance
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DIAS S.P.J.—Thangavadivel v. Inthiravathy
to be the separate property of the wife, either party may apply bymotion in a summary way to the District Court of the district inwhich either party resides, and thereupon the District Judge maymake such order, direct such inquiry, and award such costs as he shallthink fit; and the District Judge may, if either party so require, hearthe application in his private room.
Any order so made shall be subject to appeal to the Supreme. Court.
Every such motion shall require a stamp of ten rupees, but uofurther stamp duty shall be required for any other legal proceedingsunder this section ”.
The respondent to this appeal, who was the wife of the appellant,instituted proceedings against him under section 10 claiming the returnof certain .jewellery valued at Bs. 2,020.50 said to be her separateproperty, and which the appellant is alleged to be wrongfully withholdingfrom her. The appellant, although represented at the inquiry, calledhis father as a witness, but refrained from giving evidence himself- TheDistrict Judge held against him, and decreed that .he should returnto the respondent the jewellery or pay to her the sum of Bs. 2,020.50.
In view of the order I am making in this case, it is inexpedient thatI should express any opinion on the findings .of fact of the District Judge.
It appears that the respondent had proved to be an unfaithful wife,having eloped with 'one man, and was being kept as the mistress ofanother. She had instituted proceedings for divorce against the ap-pellant alleging that he had maliciously deserted her. The appellantdid not contest her claim, and while the present inquiry under section 10was pending a decree absolute had been entered in the divorce casedissolving the marriage between the spouses.
The point taken on behalf of the appellant is that the respondentnaving ceased to be the wife of the appellant during the pendency ofthese proceedings, she lost her status to continue the proceedings undersection 10. This question was raised as Issue 5, namely: —
“ Is the petitioner entitled to avail herself of the summary remedyprovided for under section 10 of Chapter 48 inasmuch as she is nolonger the wife of the respondent?
■Phe Privy Council has laid it down that as a general rule the claimsof a litigant are to be ascertained as at the commencement of the action—Silva v Fernando 1. The facts were that the Crown had conveyed landto the plaintiff, reserving to itself the title to the minerals in the land. Theplaintiff sued the defendant who had trespassed and removed the plum-bago. ALfter action was filed, the Crown by letter informed the plaintiffthat it waiyed its rights to the plumbago. It was held that no retro-spective effect could be given to the letter, because the rights of thelitigants had to be ascertained as at the commencement of the action.Tbe four-judge decision in de Silva v. Goonetilleke 2 is to the same effect—see also de Silva v! Edirisuriya *. It was contended for the respondent
i (1912} IS N. h- R- 499. ’* {1931) 32 N. L. R. at p. 219.
• (1940) 41 N. L. R. at p. 463.
DIAS S-P.J.—Thangavadivel «. Inthiravathy
871
that the proceedings under section 10 having been instituted on February24, 1949, and the decree absolute in the divorce action having only beenentered on July 11, 1949, her right to maintain this action had to bedetermined as at the former date. She being a lawfully married spouBeat that date, it is contended that her subsequent loss of that status isnot a bar to her right to continue the proceedings. It is submitted thatthe Court, once it has been lawfully vested with jurisdiction, cannot, bedeprived of jurisdiction by the fact that the respondent lost her status toinstitute such a proceeding during the pendency of the proceedings.
The appellant rejoins that the principle laid down in Silva v. Fernando1only deals with substantive rights, and does not affect rules of procedure—but no authority was cited in support of this proposition.
Without deciding the precise scope of the principle laid down in Silva v.Fernando I find that there are certain exceptions to the rule there laiddown.
In SabapathipiUai v. Vaithialingam 2 it was held that a trustee whoseterm of office had expired during the pendency of an action brought byhim, is not entitled to continue the action. Maartensz J. said:“ This
objection was tried as a preliminary issue, and the 2nd and 3rd defendantsappeal from the order of the District Judge in which he held that theplaintiffs are entitled to continue the action as new trustees have notbeen appointed, and the rights of the parties have to be determined asat the date of the action. This order cannot be supported. Even ifthe principle that the rights of the parties must be determined as at thedate of the action is applicable, the trustees who have ceased to holdoffice cannot get a decree for declaration of title and ejectment—EUsa-hamy v. Punchi Banda 3. In the case of Appusinno v. Balasuriya 4 it waslaid down that the principle that a case must be decided as at the timeof the institution of the suit, cannot be applied to the case of an actionbrought by a trustee who had ceased to hold office during the pendencyof the action, and that the moment he ceased to have that status, he couldnot continue th<e action to bring it to determination. There is no provisionin the Code under which a trustee who has ceased td hold offiee cancontinue the action ”.
Why was this case not cited during the argument ? It is in point.1 can only conclude that owing to the absence of adequate digests andbooks of reference, counsel are often unable to perform their duty ofgiving counsel and aid to the Bench. This is a situation which cannot betolerated either by the Bar or the Bench.
The principle laid down in Sabapathipillai v. Vaithilingam 3 appliesto this case. There is no provision in the Civil Procedure Code (cf.Chapter XXV) which would justify this respondent in continuing theproceeding under section 10 after she had lost her status as awedded wife.
The use of the word “ may ” in section 10 of" the Jaffna MatrimonialRights and Inheritance Ordinance indicates that it was not the intentionof the legislature to deprive a wife of the option of filing a regular action
1 (1912) 15 N. L. R. 499.* (1911) 14 N. L. R. 113.
1 (1938) 40 N. L. R. 107.4 (1913) 16 N. L. R. 385.
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BASNAYAXE J.—Eastern Bus Co. v. Inspector of Labour
to recover his or her separate property without having recourse to thei-emedy provided in section 10. The principle laid down by the DivisionalCourt, in Lamahamy v. Karunaratne 1 that a civil action for maintenancewQl not lie and that the proper procedure is to' proceed under the Mainte-nance Ordinance, does not apply to a case like this. The remedy providedby section 10 is an alternative remedy. The spouse may or may not electto proceed .under section 10.
therefore, set aside the order and decree appealed against and dismissthe respondent’s application under section 10, but without prejudice toher right, if so advised, to proceed against the appellant by civil action.The fairest order to make in regard to costs is that each party shouldbear their own costs.
Gunasekara J.—I agree.
Order and decree set aside.