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Present: Mr. Justice Middleton and Mr. Justice Grenier.WEIGHT v. WRIGHT.
C., Kandy, 15,273.
injury to mental feelings—Suit for restitution of conjugal rights—Civil Procedure Code, ss. 9, 596, and 608—Courts Ordinance (No. 1 of1889), ss. 64 and 65—Proclamation of 1799—Charters of 1801 and 1833.
It is competent for a plaintiff to institute an action for divorcein the court withinthe jurisdictionof whichthe defendantresides,
the provisions of section 608 of the Civil Procedure Code being merelypermissive and not imperative.
The matrimonial law applicable to British or European residentsin Ceylon is the Koman-Dutch law and not the English law.
Le Mesurier v. Le Mesurier, 1 N. L. R. 160, followed.
In order to justifya separation amensa etthoro, on theground
of cruelty, according to the law of Ceylon, the cruelty complainedof must, from the display of personal violence or menace accom-panying it, be such as to give rise to reasonable apprehension that life, limb,or health would be endangered to the complaining party, if separation werenot decreed.
Mere incompatibilityof temper ordisposition or inabilityto live
together or injury to feelings, where no bodily harm is threatened, would notjustify a decree for separation.
Evans v. Evans (1790) 1 Hag. Con., 35 p., 115 followed.
A suit for restitution of conjugal rights is not maintainable in Ceylon.
Andres v_ Bastiana, D. C.. Colie, 17,665 (Ram. 1860-62, p. 133) followed.
PPEAL from & judgment of the District Court of Kandy decree-ing a separation a mensa et thoro.
The facts and arguments are fully stated in the judgment ofMiddleton J.
Walter Pereira (Elliott with him), for defendant, appellant.
Domhorst, K.C. (Van Langenberg with him), for plaintiff, respondent.,»
Cur. adv. vult.
9th November, 1903. Middleton J.—
This is an appeal from a judgment of the Acting District Judge ofKandy granting a decree of separation a mensa et thoro in favour ofthe plaintiff against the defendant, her husband, on the groundof cruelty and desertion, and decreeing alimony. The plaint inparagraph 3 sets out particulars of certain specific incidents relied
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on by the plaintiff as founding her claim for relief from the court onthe ground of cruelty anl malicious desertion, and prays for separa-tion, the realization and division of the matrimonial estate, or inthe alternative for an annual allowance as alimony.
The defendant in his answer denied the allegation of the plaintiffas to cruelty and desertion and' purported to explain or denythe incidents relied on by the plaintiff, and, further alleging thatthe plaintiff had maliciously deserted the defendant, prayed inreconvention for the dismissal of the plaintiff’s action, and thatplaintiff be decreed to resume cohabitation with the defendant.
A replication on the part of the plaintiff was filed purporting toexplain or deny certain of the |acts alleged in the answer andaverring, as matter of law, that the courts in Ceylon had no power, ■authority, or jurisdiction to grant to the defendant his prayer inreconvention, and further that defendant, having made no avermentof not having committed adultery during his desertion of the plaintiff,was not entitled to a restitution of conjugal rghts.
Twelve issues of facts were settled in addition to one of law as tothe jurisdiction of the court of Kandy to hear the case.
The question of jurisdiction -was the first point raised before us bythe appellant’s counsel, who argued from the plaintiff’s averment inthe plaint that she lived in Colombo, and a proper construction ofsection 608 of the Civil Procedure Code, which alone governed thequestion, read by the light of a judgment of Mr. Justice Browne re-ported in 3 S.C.B. 12, that the plaintiff could only proceed byplaint in the district court of Colombo and not in the court of thedistrict within which the defendant was resident.
The appellant’s counsel subsequently referred to section 518 ofthe Code in regard to testamentary matters as supporting his con-tention.•
Now section 64 of “ The Courts Ordinance, 1889,” confers jurisdic-tion on the District Court in matrimonial matters.>
Section 596 of the Code (Civil Procedure) of 1889 lays down theprocedure- to be followed in actions for separation a mensa et thoro,which are to be by plaint and. answer, and subject to the rules andpractice the Civil Procedure Code provided with respect to plaints andanswers in ordinary civil actions, so far as the same be madeapplicable, and the procedure generally in such matrimonial cases(subject to the provision of chapter 42, which contains, section 596) isto follow the procedure set out in the Code with respect tq ordinarycivil actions.
Section 65 of ” The Courts Ordinance ” gives jurisdiction to districtcourts to determine all actions in which a party defendant shall beresident within the district within which-such actions shall be brought.
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Section 9 of the Civil Procedure Code enacts that, subject to thepecuniary or other limitations prescribed by any law, actions shall beinstituted in the court within the local limits of the jurisdiction ofwhich a party defendant resides.
Section 608 uses the word “ may ” when giving husband or wife aright to file a plaint in the district court within the local limits of thejurisdiction of which he or she resides.
The view I take of the matter, therefore, is that such an action mayfrom the sections I.have quoted be instituted within the jurisdictionof the court within which the defendant resides; that there is no pecu-niary or any other limitation prescibed by law affecting such actionsother than the terms of section 608, which permit them'to be broughtwithin the jurisdiction of which the injured husband or wife resides.
It seems to me that if section 608 bore the interpretation put on it bycounsel for the plaintiff, i.e., that it was not competent to bring suchan action in the court of the defendant’s residence, the word “shallwould have been substituted for” may,” as was done in section 584as regards minors, and the fact that it is used here in a case where the- procedure is by plaint and answer in the form of an action betweenplaintiff and defendant clearly indicates its permissive significance.
As regards cases under section 518, an executor may disclaim andneed not apply for probate, and the procedure is not by wav of anaction as against any particular person, but a petition by way ofsummary procedure until there is opposition by caveat or otherwise.
I am of opinion, therefore, that the District Judge rightly decidedthat these proceedings could be taken in the District Court of Kandy,which is the court within the limits of the jurisdiction of which thedefendant resides.
It is not necessary under these circumstances to consider whetherthe residence of the plaintiff is that of her husband, as to which Idouljt if the arguments. used by counsel for the respondent asto domicile are apposite. .
We have now.to consider what is the law applicable tg> the casebefore us, whether-English or Boman-Dutch; and if the iatter, what isthe soundest authority and upon what principles that authorityshould be applied.
The learned District Judge has held that English law applies, andin. doing so has not overlooked the decision of His Majesty’s PrivyCouncil on the 28th June, 1895, in the case of Le Mesurier v. Le Mean-tier reported in 1 N.L.B. 160, but has deemed it his duty to enterinto a variety of reasons founded on his personal research amongstthe legislation of the Island to show that their Lordships tvere mis-taken in the view they took when they said:“ But it does not
appear to their Lordships to admit of doubt, tbat as soon as
2J.H.A 99J12 (2/50)
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these enactments (i.e., of the Royal Charter of 1801) were sweptaway by the legislation of 1833 (Charter) the Proclamation (i.e., of1799) was restored to its original force, and the matrimonial law ap-plicable to British or European residents in Ceylon again became,the Roman-Dutch law which had prevailed in the colony before theannexation. ”
I shall not attempt to follow the learned District Judge in his rea-sons and arguments for holding the contrary, but will be content toadopt the ruling laid down by the supreme tribunal of the Empireso far as the colonies are concerned, and to conform to what is un-questionably the law, so long as that judgment remains unquestionedby the august tribunal which pronounced it.
As authorities on the Roman-Dutch law we have been referred bycounsel for the appellant to Yoet and Van Leeuwen and by counseldor the respondent to Van der Linden and a German jurist namedLeyser, the author of Meditationes ad Pandectas published in 1772.'Voet at 8. 17, tit. 2, bk. XXIV., says:“ Plane, quemadmodwm ob
nimiam sevitiam atque duritiem conjugis in conjugem, aut rixas diffen-sionesque perpetuas aut imminent alteriab altero vitee periculum coha-bitatio conjugum ad unius petitionem authoritate publica dirimi, adeoque separatio thoro et mensa fieri potest manente interim illceso ipsomatrimonii vinculo ac interdictis utrique aliis nuptiis.”
Van Leeuwen (Censura Forensis, lib. 1 cap. XV., ss. 17 and 18):“Quae cum tantum sit separatio temporalis, sub perpetua spe reconcilia-tions intentata, facilius admittitur quam divortium, et ut plurimumdecemitur ab utriusque vel alter-utrius scevitiam, machinationem mor-tis, continuas rixas, et insidias. Eaque est communis omnium Canon-istarum opinio. Ut si propter nimiam scevitiam, aut mores intolerabi-les, alteri conjugum trepidanti, sufficiens securitas provideri non possit,quantum ad cohabitationem matrimonium dissolvatur.’’
Van der Linden, as translated and cited by Henry, says, p. 89';" Besides the divorce there is also with us a kind of provisionalseparation introduced from the Canon law termed a separation ofbed, board, cohabitation, and goods."
“ This can no more than a divorce, be effected by the mere privateagreement of the parties. Lawful reasons must be set forth in theapplication tending to show that the continuing to liye together isdangerous or at least insupportable.”
There is a note also presumably by the author which indicates that•such separations had been granted' by the courts for too trivialreasons, and an observation to the like effect of the great juristBynkershoek is quoted.
Now I think it may be gathered at least from Van Leeuwen and Ven-der Linden that the fundamental basis of action on the part of
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canonists and courts was the danger to life which would accrue if 1903.the cohabitation were not dissundered and the parties ordered to live ^ ovember 9.apart.jVCxddisvdsi
In Voet the grounds for separation are put disjunctively, anddanger to life is an alternative ground to perpetual quarrels anddissensions, excessive, cruelty, and harshness.
In considering the grounds laid down by Yoet and Tan Leeuwen acourt must of necessity lay down some gauge of the consequencesaccruing from these grounds which would justify its intervention.
We have been asked by counsel for the appellant to apply theF.nglisb rulings as to cruelty in determining to what extent the rea-sons given in the Roman-Dutch authorities for granting separationmust preponderate to permit the courts here to act.
On the other hand, counsel for the respondent has begged us to-employ the more modern doctrines enunciated in the judgmentsof Lord Halsbury and.the minority of the House of Lords in Bussellv. Bussell (1), and to hold practically that incompatibility of temperand disposition was sufficient ground on which to found a decreefor separation under the Roman-Dutch law.
I cannot think that the Roman-Dutch law, apparently derived'from the canonists, who looked upon marriage as an indissolublesacrament, contemplated that even its less weighty reasons for sepa-ration, such as perpetual quarrels and dissensions and intolerablehabits, should be construed as bearing the meaning contended forby the learned counsel for the respondent.
I incline to think their view must have been that expressed by LordStowell in Evans v. Evans. (2), that in such matters it is the duty ofthe courts to act strictly, and not to allow legally married persons-to be separated merely on the ground that they cannot live togetherin harmony.
At the time when Yoet and Yan Leeuwen wrote sensitiveness ofdisposition and neurotic tendencies had probably not reached thatstage in human nature they have attained at the present age, and itis highly improbable that those jurists had them under consideration-to any extent, when enunciating the crude and simple grounds uponwhich they deemed the courts had a right to act. There is no indi-cation that they had in view what merely would be mentalfeelings, but rather actions accompanied by personal evidence or themenace of it. No decisions in the Roman-Dutch law have beenquoted*to us to show that there has been any modification of ideasamongst the Dutch jurists founded on these reasons, since theirpromulgation, and we are left as best we can to give .a construction to-them consistent with right reason and sound sense in the present day.
a) 0897) A. C. 395.(3) (1790) 1 Hag. Con., J)5, p. 115.
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It is true that counsel for the respondent referred to the Germanjurist Leyzer as modifying the original stricter notions of the canon-ists, but I am not sure of the weight of his authority. Leaning, there-fore, as 1 do on the great authority and learning of Lord Stowell, Iwould hold that the excessive cruelty and harshness must, from thedisplay of personal violence or menace accompanying it at least, besuch as to give rise to reasonable apprehension that life, limb, orhealth would be endangered to the complaining party, if separationwere not decreed. It may be said that in holding this I am practi-cally enunciating what is the English law on the subject, but thatlaw is, I have no doubt, derived from the same fount as the Boman-Dutch law, and my construction of the latter in accordance withthe principles of an English jurist like Lord Stowell, when there is noauthority to the contrary, is, I take leave to think, in harmony withthe principles followed by the courts of the Island and conformableto the interests of its inhabitants.
Now let us look at the facts of the case.
The particular incidents on which the plaint is founded are set outin paragraph 3 under alphabetical headings, and we start with theconcession made by counsel for the plaintiff that he does not attachmuch importance to the incidents occurring during the first part of theparties’ married life at Mousagalla.
The parties were married on the 19th February, 1895, and livedtogether at Mousagalla estate till 1898, when the plaintiff proceededto Ireland, returning to Colombo on the 26th August, 1899. In theinterval the defendant had purchased another estate called Galpela,and to this estate the plaintiff and defendant proceeded on the 29thAugust, 1899.
On the 13th- November, 1899, the plaintiff went to her parentsin Colombo, and on the 16th November returned to Galpela estate,remaining there until the 27th November, 1899, when she againreturned to her parents in Colombo and had never resided with herhusband since.
In judging of the conduct of the defendant it is very necessaryfor the Court to have some indication as to the temperament andmental character of the plaintiff and defendant.
We have it from the District Judge that the plaintiff is a lady ofhighly sensitive temperament with a tendency to shrink from theexpression of any symptoms of wounded feeling, and. devoted tomusic; and the defendant admits, his counsel says, that he maysometimes have hurt her feelings without being aware of it. Thedefendant would appear to be a man popular with his own sex,jocular, and fond of games and outdoor life.
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Experience teaches us that hypersensitive people are only too IMS-apt to take offence, and are often a source of discomfort to them* Swwhfl-selves and of irritation to their friends and relations. Again, the Mmimmwpachydermatous joker not infrequently forgets that other people J-have feelings.
' As regards the statements put into the defendant’s mouth by theplaintiff under headings (a) and (b), they are, I presume, selected asthe two worst specimens, during the life at Mousagalla, of what plain-tiff deems to be the cruel course of conduct pursued towards her bythe plaintiff.
The defendant (pp. 127 and 130) denies uttering them, and asregards the latter part of (6) the defendant’s denial is in a measurefortified by the evidence of Mr. Powell (p. 108); I do not think there-fore that they are proved.
As regards the other incidents to which the plaintiff deposes ashaving occurred during the two and a half years of their life at Mouse -galla, they appear to be of a trivial character, and, at the worst,indicate no more than the bickerings and coldness which too oftenarise when people who are unsuited to each other find they have takenthe irrevocable step which involves their association in practicallyevery action of their lives.
There is some attempt on the part of plaintiff's counsel to attributethe plaintiff’s visit to Ireland to a poor state of health arising fromthe effect of plaintiff’s conduct and indifference to her ; but plaintiff’sevidence that her health was very good (p. 53), but that she caught achill, became very ill, and was obliged to go to England, where anoperation upon her was contemplated, seems to me to obviate thenecessity, of considering this point.
What we have to consider then is the defendant’s conduct tothe plaintiff between the 26th August, 1899, and the 27th November,
1899. It begins with plaintiff’s reception on the steamer by defend-ant,. when he told her she “ looked ghastly,” and after breakfastwent to play croquet with a friend.
I think we may leave these incidents out of our consideration astoo trivial for comment, especially as plaintiff says (p. 55) she nevercomplained to, defendant or any one else about them.
The same observation applies to the remark about the droopingeye, which is elucidated by Mr. Powell (p. 106), and the reading atmeals.
As Regards defendant’s remarks in respect to the book Vendetta .and the elements essential to a successful divorce suit, he admits(p. 136) that he may have made observations in joke with regard tothe novel Vendetta and (p. 132) have spoken, but not in a nasty way,as regards getting a divorce for incompatibility of temper. These
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observations may not have been in very good taste under the circum-stances, and considering, perhaps, the sensitive temperament of theplaintiff, ought never to have been uttered; but at the worst theyonly show want of good feeling and not excessive cruelty or harshness.
Then (p. 64) there is the incident of the revolver ; I have carefullyread the accounts given of the matter by both parties, and I cannothelp thinking there is perhaps an unconscious exaggeration on thepart of the plaintiff.-„ •
If she had believed that defendant was pointing the revolver inten-tionally at her either with a view to express feelings of dislike towardsher or to intimidate her, she surely would have taxed him with itthere and then or would have communicated her fears to her parents,or left the house at once.
My view of the matter is, that defendant may have been looking atthe revolver, and have clicked the trigger in the course of doing so,which startled the plaintiff for the moment.
According to plaintiff (p. 86) she and the defendant were sittingon the same sofa at the time, and it seems unlikely that the occur-rence took place quite as described by the plaintiff (p. 64), consideringplaintiff took no further apparent notice of the incident and remainedin the house some days afterwards. This incident is alleged to haveoccurred on the 18th November, and amongst the letters put inevidence is one, dated 19th November, written by plaintiff to herfather, in which no mention is made of the revolver incident.
At that time also plaintiff, if her letters are read carefully, was in astate of mental antagonism to the defendant, which would have madeher only too ready to avail herself of any course of offence.
We now come to the visit to Darawela, and the incident occurring7on the night of 10th November, 1899, which in my opinion is the fonset origo of these proceedings.
On that night the defendant appears to have paid more attentionto a young lady who was present at the dance than the plaintiffdeemed right, and a quarrel ensued after their retirement to rest,during which it would appear the defendant did in fact say he lovedthe young lady.
The defendant explains this by saying he eventually admitted itto stop the plaintiff’s further argument on the subject, although hedid not really mean that he did love her (p. 139).
From the incidents occurring on the night of 10th November theplaintiff in her evidence before the district court evolved, rand forthe first time asserted, a charge of adultery against the defendantand the young lady in question.
No such charge appeared on the particulars in the plaint, and thereis in my opinion absolutely nothing beyond the plaintiff’s statement
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on the matter, uncorroborated by any evidence whatever, that she 1903.entertained any such -idea with regard to the defendant until she November 9.apparently startled her own legal advisers and every one connected Mtodustohwith the case by making this serious accusation upon her examination J-in chief.
This is a charge which in my opinion should have never been madeunder these circumstances; it was a matter not in issue in the case,and ought not to have been alleged by the plaintiff, and strictlyspeaking should not have been inquired into but unreservedlywithdrawn.
It is difficult, however to say, that it should have been allowed toremain uncontradioted, considering the imputation laid upon a ladyliving in a small English community in Ceylon who had become en-gaged four days after the 10th November, 1899, and was married inthe following May, and who would naturally be anxious to repudiatesuch a charge. Counsel at our request did not go into this part of thecase during the argument, but I have read the evidence given beforethe District Judge, and I would wish to say that I entirely acquit thelady in question of the imputation on her character, and wouldfurther say that the making of such an accusation at such a stagein the case was in the highest degree wrong and improper, and has asavour of malice which .strongly reflects the feelings of an intenselyjealous woman towards the “little beast of a B”. about whomplaintiff wrote to her mother in letter A 2.
To return to what followed on the night of 10th November, theplaintiff wrote a letter to her mother saying she was heartbroken atthe defendant’s acknowledgment to her, and returned to Colomboon the 13th, and plaintiff’s father very naturally and lightly wrotethe letter marked A 3 on the 14th November.
The defendant on the 15th replied in letter A 4, admitting that heliked the girl, but excusing himself on the ground that other inen hadbeen placed in a similar position, and acknowledging very rightlythat the plaintiff was blameless, and suggesting that, if she did notcare to live with, him, other arrangements might be made, but thatif she did care to go on living with him he would be as good to heras possible. t
The defendant says in cross-examination that he ought to havetold Mr. Browne he was making an unfounded charge, and defend-ant’s conduct in allowing his wife and her father to remain under themisapprehension that he was in love with the young lady, althoughthat was not the case, was unfeeling in the extreme,
It would however appear that defendant knew he was in the wrongat this stage, but was prepared to act rightly, but nqt to disclaimwhat he had written to Mr. Browne.
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On tibe. 15th the plaintiff returned to the estate, but was not metat the station in the way she wished, and in her letter of the 17thNovember to her mother she mentions that the defendant is goingout snipe-shooting with some one on Saturday week, and somewhatreproaches herself for having failed to be a good wife to him. -In her letter of the 19th November, 1899, to her father the plaintiffwrites that " if I go home to England and leave Tom, nothing will in-duce me ever to write to him, or return to him, so help me God; ” andshe is evidently preparing to do so. The incident connected with theTamil children described in plaintiff’s letter to her father – of 23rdNovember appears to point to a mind diseased by jealousy even tothe thought of battery with a croquet mallet.
There is nothing in those or any other following letters, that arewritten by the plaintiff up to her departure from the Island to showthat there were any quarrels between plaintiff and defendant or anyill-treatment of her on his part.
The state of feeling on her part appears to have been coldness,and on his part indifference.
On the 23rd November she writes to her mother that she does not‘ ‘ care an atom for him any longer, and only hopes that he be madeto give her a fair allowance, and that he cannot stop supporting herin two or three years’ time; ” that she eats, and drinks milk, cocoa,and porridge all day ” and that “ Tom is so cursedly dour.”
It seems that from 16th November to 25th November the plaintiffand defendant occupied the same bedroom, but she says that- fromOctober, 1899, at his request “ we had nothing to do with eachother.”
On the contrary, he says that on the night she returned, i.e., the16th November, marital relations were renewed, and the fact of theiroccupying the same room raises a presumption in favour of thedefendant’s assertion.
There is some suggestion in a letter by the plaintiff to her mother,that defendant appeared anxious to compromise her with a Mr.Tothlll, but there appears to be nothing to support this. The defend-ant appears on the 25th November to have gone snipe-shooting, as hehad previously told the plaintiff, and on the 27th the jjfaintiff left thedefendant’s house never to return, the reason for doing so apparentlybeing that plaintiff was left alone on the estate.
But plaintiff certainly knew on the 17th that defendant. contem-plated this expedition, and it might have been arranged in good timefor some one to stay with her.
It is alleged in letters written by plaintiff’s father to the defendantthat the plaintiff was “ medically dying by inches ” and had lost astone in weight since her return to Ceylon.
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This apparently did not occur until after September, 1899, when IMS.she appears to have increased in weight, if defendant is correct as to November 9-.hiB weight at the factory (p. 177).Middletox
It may be of course that plaintiff did as she says (p. 71) lose J'weight, and that loss may have been the result of mental worryarising from the state of feeling which had arisen between her andthe defendant. But even if that physical shrinking which hadaffected the plaintiff's health, of which there is no evidence other thanstatements in her father’s letters, was produced by defendant’scoldness or indifference working on a highly sensitive and jealousmind without personal violence or words of menace, J do not considerthat, upon the standard I have imposed for my guidance, this wouldbe sufficient ground for granting a separation.
The plaintiff herself said in cross-examination (p. 80): “ There wereno quarrels, no rows. The first row took place on the night'of the10th November; that was a very quiet row.”
The worst that can be alleged against the defendant was his con-duct in allowing his wife to assume that he had an affection for theyoung lady who was the cause of the quarrel on the night of 10thNovember.
If he really loved her it was possibly, more his misfortune than hisfault, but if, although he only wrote that he liked her, he permittedhis wife to deceive herself, thinking he loved the girl, regardless of thefact that it would be likely to gall and wound the feelings of a sensi-tive woman to whom he owed all his affection, it cannot be doubtedthat such action was unfeeling and callous and morally unjustifiable,although I doubt if it amounted to cruelty.
The defendant (p. 163) says he was obstinate and would not give in
because he thought his wife had no cause for her conduct, but his
unwillingness to retract what he had written to plaintiff’s father on
15th November (AA), followed by his apparent indifference on her
return to the estate, no doubt led up to the coldness of feeling and
outward and actual indifference on the part of the plaintiff which
culminated in her leaving his roof on the 27th November. I cannot
however say this is conduct which is contemplated as a cause for a
separation in the authorities quoted from the Boman-Dutch law.
There is no physical cruelty or harshness, no perpetual quarrels ordissensions, nothing which threatens danger to life, no intolerablehabits, no plotting the death of a spouse, but only at the worst awrongjy obstinate mind maintaining a condition of things it knows tobe'untrue, and inducing thereby on its sensitive marital counterpart afeeling of coldness and indifference culminating in mutual dislike.
After the plaintiff left the estate on the 27th November variousletters passed between defendant and Mr. and Mrs. Browne, but in
response. to their efforts to induce reconciliation the defendantreplied it would be absolutely useless for the plaintiff and him to livetogether, finally replying it was “ impossible,” and that “ his love forher was dead.”
However, on the 9th December defendant wrote to plaintiff thatalthough their love for each other was dead, there was always a homefor her at Galpela.
The plaintiff wrote a final letter to the defendant on 6th January,1900, suggesting an allowance of £300 a year, and the same month thedefendant went to South Africa to serve in the war then proceedingthere, making an allowance of Bs. 150 per month to his wife duringhis absence in addition to the interest on her settlement money.
It would not have been possible for plaintiff to remain at Galpelaalone while defendant was in South Africa, but it seems to me thatby mutual concession some arrangement might have been made forplaintiff’s residence there with convenience to herself and to herrelations.
He appears to have had a personal interview with her beforeleaving, but not to have acquainted her with his intention of goingbefore he decided to do sol
During his stay in South Africa no correspondence took placebetween the parties, and on his return to Ceylon in February, 1901,defendant says he endeavoured to induce plaintiff to return to himwithout success, and so he stopped the allowance.
The plaintiff however stated that, at the interview before leavingfor South Africa, the defendant intimated that all was over as regardstheir living together on his return.
Shortly before these proceedings were instituted the defendantinstructed his proctor to threaten proceedings, and the proctor didthreaten dissolution, on what grounds I fail to see.
The District Judge has founded his decree on the ground ofmalicious desertion for two years, but no attempt was made before usto support his judgment on that ground, and I think it can hardly becontended that there was such desertion on the part of the defendant,who was absent from Ceylon in the service of his country. The onlyground on which the judgment was really' supported,, was that theevidence showed such incompatibility of temper between the partiesthat the court ought to grant relief.
The District Judge, however, found in paragraph 64 of his judg-ment that defendant had so treated his wife and manifested his feel-ings towards her as to have injured her health, and that his actsamounted to cruelty.
Apart from the question as to whether the facts the learned Judgerelied on wererproved to have occurred in the way he conceives in his
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judgment, the plaintiff herself does not, so far as I oan see, state any-where in her evidence, as the judge alleges in paragraph 60 of hisjudgment, that defendant's course of harsh, irritating conduct hadcaused her such pain and distress as to endanger her health, nor isthere any proof to this latter effect on the record.
The majority of the Court of Appeal in Bussell v. Russel laid it downthat there must be danger to life, limb, or health, bodily or mental, ora reasonable apprehension of it, to constitute legal cruelty, and to thatdefinition Lord Herschell, who headed the majority in the House ofLords, affirming the principles hitherto followed in the matrimonialCourts as regards cruelty, practically acceded. In my opinion it wasnot proved that the defendant’s course of conduct would be dangerousto the life, limb, or the bodily or mental health of the plaintiff, or eventhat it would raise a reasonable apprehension of such danger; nor doI think the facts here would fall within the spirit of the ruling in Kellyv. Kelly (1), a case which goes very far. All that was provedwas that the plaintiff may have lost weight, and she herself saidthat her “ life was a hell ’’—a state of mind that may have beenpartly produced by her ultra-sensitiveness of nature and jealousy.
In my opinion, therefore, the judgment of the court below cannotbe sustained either on the application of English or Boman-Dutchlaw, and the appeal must therefore be allowed and the judgment ofthe District Court set aside with costs of the appeal.
As regards the claims in reconvention it was laid down by a FullCourt of this Island in a case reported in Ramanothan, 1860-1862,p. 133, that a suit for restitution of conjugal rights is not maintainablein Ceylon.
The defendant’s claim in reconvention must therefore be also dis-missed. Under the circumstances I consider that each party shouldpay his and her own costs in the District Court.
Grenier, A. J.—I am of the same opinion.
a) L. R. 2 P. and D. 69.
WRIGHT v. WRIGHT