041-NLR-NLR-V-64-V.S.-NADARASA-Appellant-and-NAVAMANY-Respondent.pdf
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Nadarasa v. Navamany
1962 Present: Weerasooriya, S.P.J., and H. N. G. Fernando, J.
V. S. NADARASA, Appellant, and NAVAMANY, RespondentjS. C. 110, with Application 270—D. G. Colombo, 3747jD
Action for dissolution of marriage—Suit instituted by husband—Promise by husband tomake an cx gratia payment to wife—Enforceability—Civil Procedure Code,ss. 217, 615 (2).
Whore decree for dissolution of marriage is entered at the suit of a husband, apromise by the husband to mako an ex gratia payment to the wife cannot boincorporated in the decree so as to compel him to pay the sum.
WEERASOORIYA, S-P.J-—Nadarasa v. Navamany233
Appeal from an order of the District Court, Colombo.
H. W. Jayewardene, Q.C., with R. L. Jayasuriya, for plaintiff-appellantand for plain tiff-petitioner in Application No. 270.
N. Kumarasingham, for defendant-respondent in the appeal.
June 21, 1962. Weerasooriya, S.P.J.—
In this case as the decree for the dissolution of the marriage has beenentered at the suit of the husband it is common ground that no permanentalimony could have been ordered under section 615 (1) of the Civil Proce-dure Code. It was because such an order could not be made that theplaintiff, while giving evidence, said that he agreed to make an ex gratiapayment of a sum of Rs. 60 a month to the defendant which will continueas long as she remained unmarried. He also stated that he had noobjection to this promise being incorporated in the decree. What has beenincorporated in the decree is in the following terms :—
“ And it is further ordered that the plaintiff do pay to the defendantthe sum of Rs. 60 per mensem as an ex gratia payment to be appliedtowards the maintenance of the defendant ”.
Whereas the plaintiff only agreed to his promise to make an ex gratiapayment being incorporated in the decree, he is now faced with an order inthe decree to pay Rs. 60 per mensem the performance of which would becompellable by process of execution of .the decree. It seems to us thatthis part of the decree goes much beyond what the plaintiff agreed to.Mr. Kumarasingham asks that at least the promise to make an ex gratiapayment be incorporated in the decree. We do not think, however, thateven though the plaintiff stated that he had no objection to his promisebeing incorporated in the decree, the decree should refer to it. Section 217of the Civil Procedure Code, which classifies the various types of decreesthat may be entered, does not appear to provide for a promise of thisnature being incorporated in the decree.
The appeal is allowed, but without costs, and the decree will be amendedby deleting the following paragraph : —
“ And it is further ordered that the plaintiff do pay to the defendantthe sum of Rs. 60 per mensem as an ex gratia payment to be appliedtowards the maintenance of the defendant ”.
_/.lthough in the result the decree will have no reference to the promiseof the plaintiff to make the ex gratia payment, the defendant can, for whatit is worth, rely on the proceedings to show that such a promise was infact made and that the defendant’s undertaking not to apply for enhance-ment of maintenance in M. C. Jaffna Case No. 7963 depends on thispromise being kept.
In view of this order, we make no order in Application No. 270.
N. G. Fernando, J.—I agree.
Appeal allowed.