013-SLLR-1984-V1-SOMAWATIE-v.-SIMON-PERERA.pdf
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Sr< Lanka Law Reports
11984} 1 S.L R
SOMAWATHIE
v.
SIMON PERERA
COURT OF APPEAL.
GPS DE SILVA. J. and LH.DE ALWIS, J.C.A.'lS.C.) 948/75(F| – D.C.MT.LAVINIA-13328/L.DECEMBER 13, 1983.
Action for recovery of property gifted as dowry-Whether action maintainable byguilty spouse after dissolution of marriage.
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Somawathie v. Simon Per era (G P S. de Silva. J.)
79
The parents of th«plaintiff gifted the land and property in suit to the defendant byway of dowry. The marriage was subsequently dissolved on the ground of maliciousdesertion on the part of the plaintiff. The plaintiff thereafter instituted this action forthe recovery of the dowry property and the District Judge dismissed her action onthe basis that she could not claim a re-transfer of the property since she was theguilty spouse. The pllintiff appealed.
Held-
Under the Roman Dutch Law, the wife has a right to sue for the restitution ofher dotal property upon the dissolution of a marriage. However she forfeits this rightif the divorce has been granted on grounds of her misconduct.
Since the plaintiff was guilty of maliciously deserting the defendant and wastherefore the offending spouse she has, under the Roman Dutch Law, forfeited herright to recover the premises in suit.
Cases referred to
Fernando v. Fernando, (1962) 63 N.L.R. 416
Karunanayake v.Karunanayake, (1938) 39 N.L.R. 275
APPEAL from an order of the District Court of Mt. Lavinia.
D R. P. Goonerilleke with K. Kanag-lswaran for the plaintiff-appellantL. F. Ekanayake for the defendant-respondent.
February 2, 1984.Cur. adv. vult.
G. P. S. DE SILVA, J.
The plaintiff married the defendant on 15.12.52. Prior to theirmarriage on 06.11.52, the parents of the plaintiff, gifted by way ofdowry, the land and premises in suit to the defendant, ' theintended son-in-law' . The deed of gift (P 1) is subject to thecondition that it is to be operative ' after the solemnization of themarriage The gift was accepted by the defendant, as set outin P 1.
It was not disputed that the marriage between the plaintiff andthe defendant was dissolved on 8.11.66 on the ground ofmalicious desertion on the part of the plaintiff. The present actionwas instituted on 14.02.72 for the recovery of the property giftedon P 1. The defendant in his answer, specifically pleaded that theaction could not be maintained as the plaintiff was the offendingspouse, found to have been guilty of malicious desertion. The
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defendant prayed not only for the dismissal of the plaintiff's actionbut also sought ar declaration that he be declared entitled to thepremises and that the plaintiff be ejected therefrom.
At the trial, the important issue raised on behalf of the plaintiffand which is relevant for the purposes of this appeal, reads thus
"Is the defendant liable to re-transfer the property to the
plaintiff ?'
The main issue relied on by the defendant was as follows
‘Can the plaintiff have and maintain this action as the plaintiffwas guilty of malicious desertion in respect of the marriage ?'
After trial, the District Judge dismissed the plaintiff's action andentered judgement for the defendant as prayed for. The plaintiff hasnow appealed against this judgment and decree.
The basis for holding against the plaintiff is stated by the DistrictJudge in the following terms
'There is no dispute in this case that P 1 was a gift to thedefendant in consideration of marriage of the plaintiff. Themarriage was dissolved on the ground of malicious desertion onthe part of the plaintiff. The plaintiff is, therefore, not entitled toclaim a re-transfer of the property in suit. The defendant isentitled to retain the property in suit. Vide 63 N.L.R. 416.'
At the hearing before us, and in his subsequent writtensubmissions Mr.D.R.P. Goonetilleke, Counsel for theplaintiff-appellant, strenuously contended that under the RomanDutch Law, an action lies for the recovery of property given asdowry upon the dissolution of the marriage. Mr. Goonetilleke furthersubmitted that the decision reported in 63 N.L.R. 416, relied on bythe Trial Judge, is not an authority for the proposition that the guiltyspouse is not entitled to the recovery of property gifted by waydowry on the occasion of the marriage. I
I shall, first, consider the case of Fernando v. Fernando (1) reliedon by the District Judge. This was a case where, two months priorto the marriage between the 'plaintiff (wife) and the defendant(husband), the brothers of the plaintiff donated a half-share of theproperty to the plaintiff and the defendant in equal shares * as a
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Somawaihie i>. Simon Herera (U. P S. de Silva. J.)
81
token of menta^pleasure and for their future prosperitywhich thedonors had ' towards the marriage of the said donees Themarriage was dissolved on the ground of malicious desertion by theplaintiff and thereafter, the plaintiff brought this action, claiming thedefendant's shafe of the property. The defendant denied theplaintiff’s right to this relief and claimed by way of reconvention, theplaintiff's share of the property on the ground that the plaintiff wasthe offending spouse. After trial, the District Judge dismissed theplaintiff's action and allowed the defendant's claim in reconvention.In appeal, Tambiah, J. held that while the defendant was entitled toretain the share donated to him, he was not entitled to the sharedonated to the plaintiff, despite the fact that the plaintiff was theoffending spouse. Having considered the Roman-Dutch authoritiesand certain South African cases, Tambiah, J. expressed the viewthat under the common law, the rule of forfeiture of benefits asbetween spouses, does not apply to the separate property of theoffending spouse. Tambiah, J. reasoned thus
'It cannot be said that the share which the plaintiff received byvirtue of deed No. 10264 is a benefit she derived from herspouse by marriage. She was already vested with title when shemarried and therefore, this was her separate property and assuch is not subject to forfeiture.' (The emphasis is mine.)
As regards the plaintiff's claim to the share of the land alreadyvested in the defendant, Tambiah, J. agreed with the finding of theDistrict Judge that the plaintiff had no cause of action to ask for areconveyance of the defendant's share of the land to her.
In the present appeal before us, title to the premises in suit, hadvested in the defendant by virtue of the deed of gift P 1. Themarriage contemplated in P 1 had taken place ; there was no failureof consideration nor was there a breach of any condition stipulatedin P 1. In this connection, the following passage in Nathan'sCommon Law of South Africa, Vol. I, 2nd Edition, pages 266 and267, is relevant
"Dos or dowry consists of the property which is given by a wifeor by some other person on behalf of the wife, to the husband, forthe purpose of sustaining the burdens of the marriage. If themarriage does not take place, the giving of the dowry is null and
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void. If it takes place, the giving of the dowry is irrevocable, if thecontract relating to it is entered into by the person who gives itwith the intent that it shall always remain with the husband.*
Thus, the plaintiff has no cause of action to sue the defendant andto that limited extent, the decision in Fernando v. Fernando (supra)is of assistance to the defendant.
Mr. Goonetilleke, made the further submission that the DistictJudge has overlooked the principle of the Roman Dutch Law thatenables the wife to sue for the recovery of the dowry. Mr.Goonetilleke is right in his submission, that under the Roman DutchLaw. 'upon the dissolution of a marriage, the wife might sue forrestitution of her dotal property (by an action know as the actio exstipulatu, which was a bona fide and privileged action ). . . . Thedowry can only be reclaimed by the wife or her heirs, if it wasactually paid over or transferred to the husband. … * (CommonLaw of South Africa by Nathan, Vol. I, 2nd Edition, pages 314 and315.) This principle is referred to by Maartensz, J. in the case ofKarunanayke v. Karunanayake (2) cited by Mr. Goonetilleke.
But what is important for the purposes of the instant case is thequalification to this principle, namely, that the right of the wife toclaim restitution of the dowry, may be forfeited if the husbandobtains a divorce by reason of the misconduct on the part of thewife. "But the right to claim dowry, falls away on various causes(i) …. (ii) . . . (iii) . . . (iv) If a divorce has taken place throughthe fault of the woman." (Voet 24.3.19. Gane's translation)
Admittedly, the plaintiff was the offending spouse as she wasguilty of maliciously deserting the defendant. She therefore has.under the Roman Dutch Law, forfeited her right to recover thepremises in suit and her action has to fail. I accordingly affirm thejudgment of the learned Judge entered in favour of the defendant.
The District Judge has also allowed the defendant's claim forejectment of the plaintiff from the premises in suit. According to thedefendant himself, the plaintiff has been in occupation of thesepremises since August 1953. There is an averment in P 2 (theplaint in the divorce action), that the desertion took place in August1953. The plaintiff in her evidence stated that she has no otherproperties. She is, therefore, faced with the grave peril of
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Siddeek v. Jacolyn Seneviratne
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immediate ejectment from her residing house, where she had livedfor the last thirty years. This house once belonged to her parentsand was gifted to the defendant presumably to enable the newcouple to establi^i their matrimonial home. As for the plaintiff, thesearch for alternative suitable accommodation would very probablybe a long and painful process, in the context of the prevailinghousing shortage. In these circumstances, it would be inequitableto place the plaintiff in the evening of her life, in a situation whereshe would have no roof over her head. We accordingly direct writ ofejectment not to issue till 1st August, 1985. Subject to thisvariation in the decree, the appeal is dismissed with costs.
L. H. DE ALWIS, J.-l agree.
Appeal dismissed.