Law of Divorce - adultery - prescription on matrimonial offences - damages - 'consortium'
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA
CA 63/2004(F)
DC Colombo 97502/M
Before : WLR
Silva J
Sisira de Abrew J
K. T. Chitrasiri J
Counsel : Romesh
de Silva PC with G. Gunawardene for the appellant
Nihal Fernando PC with Uditha
Collure the Respondent.
Argued on : 27.6.2012
and 11.7.2012
Decided on :
30.8.2012
Sisira
de Abrew J.
This
is an appeal to set aside the judgment of the learned District Judge of Colombo
dated 14.11.2003 wherein he dismissed the plaintiffs case. Being aggrieved by
the said judgment of the learned District Judge, plaintiff appealed to this
court.
The
marriage between the plaintiff appellant and Abeysundara was solemnized on
27.9.1958. On 2.6.1980 Abeysundara filed divorce action against his wife (the
plaintiff appellant). However the divorce action was dismissed on 4.9.1985.Thus
even now plaintiff appellant is the legal wife of Abeysundara. On 6.10.85
Abeysundara got married to the defendant respondent (the respondent) under the
Muslim Law. Abeysundara was convicted under Section 362(B) of the Penal Code
for bigamy. On appeal to High Court he was acquitted & However on appeal to
Supreme Court, a bench of five judges of the Supreme Court, by judgment dated
16.12.1997 set aside the judgment of the High Court and affirmed the conviction
of Abeysundara. Supreme Court further held that the purported marriage between
Abeysundara and the respondent was void.
Abeysundara who was
working as an engineer in Colombo Municipal Council retired in 1975. Thereafter
he worked in Nigeria for two years. In August 1979 he joined the DFCC where he
met the respondent. Plaintiff appellant alleges that after her husband
(Abeysundara) joined the DFCC, the respondent started an affair with
Abeysundara; thereafter committed matrimonial offences with Abeysundara;
alienated the affection of Abeysundara that he had towards the plaintiff
appellant; enticed Abeysundara to be away from the plaintiff appellant and to
commit adultery with her (the respondent); and broke consortium that she was
enjoying with her husband. She filed the present action claiming damages from
the respondent for the said acts of the respondent. The learned District Judge
dismissed her action. In the present appeal, she seeks to set aside the said
judgment. The respondent and Abeysundara denied the said allegations.
Position taken up by
Abeysundara was that in 1978 his marriage with the plaintiff appellant
completely broke down and even in Nigeria it was chaotic. If the marriage had
broken down in 1978, one cannot argue that the respondent alienated
Abeysundara's affection and broke consortium that the plaintiff appellant was
enjoying because Abeysundara met the respondent only in 1979. Therefore it is
necessary to find out whether the marriage between the plaintiff appellant and
Abeysundara in fact broke down in 1978. Abeysundara at page 368 of the brief
says that his marriage with the plaintiff appellant completely broke down in
1976. He even says that he lost his affection for his wife (the plaintiff
appellant) in 1977. Although he says these things, he admits in evidence that
in 1978 he bought seven sarees from Bombay for his wife who threw them from the
balcony. Abeysundara and plaintiff appellant lived in Nigeria from 1975 to
1977. Although he says that their relationship was chaotic and the marriage was
breaking down in Nigeria, both of them, with their younger son, from Nigeria
went to London and lived there in an apartment from July 1977 to December 1977
(vide pages 390-391 of the brief). Their elder son joined them in London. Thus
they have lived in London as a family. Abeysundara at page 372 says that he did
not have sexual relationship with the plaintiff appellant from 1978 to 1979.
But at page 335 he says that one year before 1980, he lived with the plaintiff
appellant as husband and wife. This shows that up to 1978/1979 he was having
sexual relationship with the plaintiff appellant. Abeysundara at page 395
admits that in April 1980 he went with his wife (the plaintiff appellant) to
Nuwara Eliya (where people go for holidays) and stayed there for three days. He
admits that in June 1980 he went to Sunday Mass with
his wife (the plaintiff appellant). He admits that both of them up to 1980
handled finances of the house. In February 1980 he had even written a cheque in
the plaintiff appellant's name. In August 1979 he had written a cheque to pay
his wife's income tax (vide pages 373 to 375 of the brief). Therefore it is
seen from Abeysundara's evidence that the marriage between Mr. and Mrs.
Abeysundara had not broken in 1978 and that it had continued till June 1980.
From Abeysundara's evidence it is clear that the plaintiff appellant was
enjoying companionship, cooperation, financial support of her husband till June
1980.
At
this stage it is relevant to consider the meaning of consortium. The New
Shorter Oxford English Dictionary defines 'consortium' as follows:
"The companionship, affection, and assistance
which each spouse in a marriage is entitled to receive from the other."
Black's
Law Dictionary 9th edition page 351 defines consortium as follows: "The
benefits that one person, especially a spouse is entitled to receive from
another, including companionship, cooperation, affection, aid, financial
support, and (between spouses) sexual relations."
As
I pointed out earlier from Abeysundara's evidence, it is clear that plaintiff
appellant was enjoying companionship, cooperation and financial support from
her husband till June 1980. When I consider the above legal literature and
Abeysundara's evidence I hold that the plaintiff appellant was enjoying
consortium from her husband till about June 1980.
Plaintiff
appellant says that her husband Abeysundara gradually changed his attitude
towards her; that from December 1979 the respondent started alienating
Abeysundara's affection towards her (the defendant respondent) and that the
respondent gradually broke consortium that she (Plaintiff appellant) was
enjoying with her husband. The respondent in her evidence says that she started
an affair with Abeysundara only in 1984. Abeysundara however says in his
evidence that he started an affair with the respondent in 1983 (vide page 338
of the brief). The divorce action was filed in June 1980. It is possible to
present the following argument on behalf of the respondent. If the respondent
started an affair with Abeysundara in 1983 she cannot be found guilty for
alienating Abeysundara's affection from the plaintiff appellant and for
breaking consortium that the plaintiff appellant was enjoying from Abeysundara
since the divorce action was filed in June 1980. It is possible to present the
following argument against the said argument. If the respondent started an
affair with Abeysundara or broke plaintiff appellant's consortium or alienated
Abeysundara's affection before the divorce action was filed, she would
be guilty of breaking consortium and alienating the affection of Abeysundara. I
now advert to these questions.
Abeysundara joined the
DFCC in August 1979. Plaintiff appellant says that on 5.10.1979 when she went
to her husband's office she saw the respondent with her hands round her
husband's shoulders. According to her they (Abeysundara and the respondent)
were all alone in the room. But the respondent by producing her passport has
proved that from 5.8.1979 to 13.10.1979 she was out of the country. It is
interesting to examine the respondent's evidence on this point. I will
reproduce here question and answer given by the respondent on this point.
Q: You heard plaintiff saying in the
course of her evidence that on 5.10.1979 she came to Abeysundara's room that
you were with your arms around her husband's shoulders?
A:
Not the 5th, I think in September. I was not in the country
on the date she mentioned.
The
respondent, by the said answer, has not denied the above allegation made by the
plaintiff appellant. What she had said was that it was not on the 5th Even in
September 1979 the respondent was not in the country. It appears that both the
plaintiff and the respondent have made a mistake about the date. Learned
counsel who appeared for the respondent at the trial having realized the
gravity of the said answer and the inference that could be drawn from the said
answer, asked the following question.
Q: Did you on any date whatsoever in
your husband's room put your arms around his shoulders?
A: No.
When
I consider the above evidence, I am of the opinion that the respondent has
admitted the above incident.
Abeysundara admits that he
went to Nawalapitiya with the respondent and both of them stayed in the
Nawalapitiya Rest House. He also admits that he had dinner with her in the rest
house. He says that it was an official trip and was in November 1979.
Plaintiff
appellant says that the respondent and Abeysundara went to Nawalapitiya on
9.12.79. The respondent on 9.12.79 had come to pick up Abeysundara. The
evidence given by the plaintiff appellant on this point is worthy of being
reproduced.
"Actually
when she came to take my husband on the 9th of December 1979, when she looked
at my husband, it was as if she was going on a honeymoon. I had suspicion"
(vide 162-163 of the brief). The respondent had not denied this evidence.
According to the plaintiff appellant, the respondent started getting
Abeysundara to drop her at Ward Place residence in the evenings (vide 187 of
the brief).
Plaintiff
appellant says that in the month of February 1980 the respondent went abroad
and that they had perfect peace at home. She returned to the country on 23.3
.1980 and according to the plaintiff appellant on 27.3.1980 he went out with
the respondent saying that he was going to attend a board meeting and in the
night there was a big flare up at home. When the plaintiff appellant checked up
she found that there had not been any board meeting (vide 184,201-202 of the
brief).
In
August and September 1979, according to the plaintiff appellant, the respondent
was giving repeated telephone calls to Abeysundara and they (the telephone
conversation) were long conversations (182-184 of the brief).
Plaintiff appellant says
that her husband was good to her till June 1980. According to her, she was
dropped by Abeysundara at Durdan hospital on 10.6.1980 for a surgery (vide 184
of the brief). Abeysundara admits that hedropped
his wife 'at the Durdan hospital. He also admits at page 396 of the brief that
in June 1980 he took his wife (the plaintiff appellant) to Sunday Mass.
I
must consider the plaintiff appellant's letter dated 24.6.1980 sent to
Abeysundara. In the said letter she had not mentioned the respondent's name as
the person who created problems to their marriage. But the letter indicates
that she wants to continue the married life with her husband. All the above
matters that I have discussed above would indicate that the respondent had
started an affair with Abeysundara prior to the divorce case was filed.
The
plaintiff appellant says that she, on several occasions, requested the
respondent to give up her husband. The respondent too admits that shortly after
the divorce case was filed (it was filed in June 1980), the plaintiff
appellant telephoned her on several occasions and scolded her. The respondent's
position is that she started an affair with Abeysundara in 1984.
Natural
question that arises is that if she had not started an affair with Abeysundara
prior to 1984, why did the plaintiff-appellant in 1980 scold her and request
her to give up her husband. When I consider this observation and the above
material such as the respondent picking up Abeysundara from home of Mr and Mrs
Abeysundara at Bagatale Road on 9.12.1979; both of them ( Abeysundara and the respondent
) staying in the same rest house in Nawalapitiya and having dinner there
together; respondent putting her hands round Abeysundara's shoulders; there was
perfect peace at Mr. and Mrs. Abeysundara's house during the period the
respondent was away- from the country (February 1980); soon after the
respondent's arrival, Abeysundara and the respondent going out in the evening
(27.3.1980) and in August/September 1979, the respondent giving repeated
telephone calls to Abeysundraa and having long conversation, I
hold the view that the affair between Abeysundara and the respondent started
long prior to 1983/1984.
Therefore
Abeysundara's evidence that he started the affair with the respondent in 1983
and the respondent's evidence that she started the affair with Abeysundara in
1984 cannot be accepted. I have earlier held that the plaintiff appellant was
enjoying her husband's consortium till June 1980.
When
I consider the above evidence, I hold the view that the respondent had
alienated Mr. Abeysundara's affection from his wife (plaintiff-appellant), had
broken the consortium that the plaintiff-appellant was enjoying with her
husband and that she (the respondent) had enticed Abeysundara to be away from
the plaintiff appellant and to commit adultery with her. The learned trial
Judge failed to consider these matters.
The other important
question that arises for consideration is whether the respondent committed
matrimonial offences with Abeysundara. It is undisputed that Mr and Mrs
Abeysundara (plaintiff-appellant) are legally married and the divorce action
filed by Mr. Abeysundara to dissolve their marriage was dismissed by the
District Court. It is also undisputed that Mr. Abeysundara married the
respondent on 6.10.1985 after accepting Muslim Religion. They both accepted the
Muslim Religion. Abeysundara at Page 366 of the brief accepts that change of
religion is for the purpose of marriage and that although he professed to
convert to Islam he did not become a believer in it. He says that he got
married to the respondent according to the judgment in Attorney General V s
Reid. The respondent too admits that she embraced Islam for the purpose of
getting married to Abeysundara and that she became a Muslim along with
Abeysundara. Thus it is very clear that their conversion to Islam was not
sincere and genuine. In Attorney General Vs Reid 67 NLR 25Privy Council
observed following facts: " In country such as Ceylon, where there are
many races and creeds and a number of Marriage Ordinances and Acts, the
inhabitants domiciled here have an inherent right to change their religion and
personal law and so to contract a valid polygamous marriage. If such inherent
right is to be abrogated it must be done by statute.
The respondent contracted
a marriage on 18th September 1933 under the Marriage Registration Ordinance,
according to Christian rites. On 13th June 1959 he and a divorced woman were
converted to the Muslim faith. A month later they were duly married under the
provisions of the Muslim Marriage and Divorce Act, notwithstanding that the
earlier marriage was subsisting and had not been dissolved under section 19 of
the Marriage Registration Ordinance. The respondent was at all material times
domiciled and resident in Ceylon. Admittedly the conversion of the respondent to
the Muslim faith was sincere and genuine.
Held, that the Muslim
Marriage and Divorce Act makes full provision for a Male Muslim inhabitant of
Ceylon to contract more than one marriage. Accordingly the respondent was not
guilty of the offence of bigamy, because the second marriage was not void
within the meaning of section 362 B of the Penal Code."
It is seen that in AG Vs
Reid (supra) conversion of the respondent to Muslim religion was sincere and
genuine and the Privy Council declared that the 2nd marriage of the respondent
was not void. In the instant case conversion of the respondent and Abeysundara
to Muslim religion was not sincere and genuine. I therefore hold that even
according to AG Vs Reid (supra) the marriage between Abeysundara and respondent was void. Therefore it was not legal
for them to engage in sexual intercourse even after the purported marriage on
6.10.1985. Thus the respondent's position that she was legally married to
Abeysundara during the interim period (from 6.10.1985 to the date of the
Supreme Court judgment i.e 6.12.1997) cannot be accepted. Both Abeysundara and
the respondent admit that they, after their marriage, on 6.10.1985 live as
husband and wife. I therefore hold that after 6.10.1985 the respondent lived in
adultery with Abeysundara and that she has committed and continue to commit
matrimonial offences with Abeysundara. I therefore hold that the respondent has
committed matrimonial offences with Abeysundara. The respondent, at page 280 of
the brief, admits that she is now living in adultery with Abeysundara. She
however says that she was legally married to Abeysundara during interim period
which I have referred to above. But I have earlier held that even according to
AG Vs Reid the marriage between Abeysundara and the respondent was void.
As
I pointed earlier Abeysundara was convicted for bigamy on the basis of his 2nd
purported marriage to the respondent. The decision of the Supreme Court is
reported in [1985] 1 SLR 185. In the said case the Supreme Court observed the
following facts. "The accused respondent and his first wife the appellant
both Roman Catholics were married under the Marriage Registration Ordinance.
During the subsistence of the first marriage, the accused registered a marriage
with one Miss Edirisinghe under Muslim Marriage and Divorce Act. The accused
was convicted for the offence of bigamy. His defence was that prior to his
second marriage, both he and Miss Edirisinghe had embraced Islam; and as such,
the second marriage was valid. Section 18 of the Marriage Registration
Ordinance prohibits polygamy and sections 18, 19(1) and 35(2) read together show beyond doubt that
the Ordinance contemplates only a monogamous marriage; and the respondent could
not, by a unilateral conversion to Islam, cast aside his antecedent statutory
liabilities and obligations incurred by reason of the prior marriage. The
rights of the respondent are qualified and restricted by the legal rights of
his wife whom he married in terms of the Marriage Registration Ordinance.
The
second purported marriage of the respondent during the subsistence of the prior
marriage contracted under the Marriage Registration Ordinance is void,
notwithstanding the respondent's conversion to Islam."
According
to the said judgment, the purported marriage between Abeysundara and the
respondent is void ab initio.
For
the above reasons I hold that their sexual relationship from the beginning is
illegal.
Learned
trial judge held that the action was prescribed.
Committing
matrimonial offences is a continuing thing. The respondent admits even now she
lives in adultery with Abeysundara. For these reasons I hold that the action
was not prescribed.
Learned
PC for the respondent cited Wassenaar Vs Jamson 1969 SALR page 349. In that
case the applicant wife and the respondent were prominent golfers and in
February 1965 they became partners of a prominent golf club. They fell in love
with one another. In May June 1965 they committed adultery. This threatened to
break up the appilacnt's marriage and in July 1965 reconciliation
was effected between the applicant and his wife. At the time of reconciliation
the applicant's wife and the respondent agreed not to associate again.
Thereafter they lived happily three years together. After three years the
applicant's wife and the respondent met again and committed adultery. The
applicant asked for interim order on the respondent not to commit adultery with
his wife. Court observed that the applicant's marriage had irretrievably broken
up. Court further observed that on papers filed, the· applicant would not be
entitled to an interim order.
When I consider the facts
of the present case which are different to the facts of the above case, I hold
the view that the decision in the above case has no application to this
case.
I would like to consider
Evans Vs Evans and Platts 1899 LJP 195 (South African case) "Upon a
husband's petition for dissolution of marriage Claiming damages, it appeared
that the husband and wife separated after a cohabitation of only a few months
on account of the wife's overbearing and insulting conduct and language towards
her husband, culminating the actual violence to him on more than one occasion.
It was proved, and not
denied, that, rather more than a year after the separation, the co-respondent,
who had been acting as her solicitor, committed adultery with the respondent,
and that this improper intimacy continued for about twelve months:-
Held, that,
notwithstanding the separation and the fact that it had been caused by the
violent conduct of the respondent towards the petitioner, the latter was
entitled to some damages; that the fact of the co-respondent's frequent
adultery having rendered reconciliation absolutely out of the question was a
material element for consideration in fixing damages; and, that the jury were
entitled to consider also, and to decide as a matter to be inferred from all
the circumstances of the case, whether the respondent and co-respondent had not
misconducted themselves together at a time anterior to the date proved by
affirmative evidence and admitted and alleged by the co-respondent as the first
date when adultery took place between himself and the respondent." In the
present case the plaintiff appellant says that she, on several occasions,
requested the respondent to give up her husband. What is the idea of this
request? The idea is to have reconciliation. It appears that the respondent's
adultery with Abeysundara has rendered reconciliation out of question.
In Strydom Vs Saayman
[1949] (2) South African Law Reports 736 "An action by a wife for damages,
against the woman with whom her husband has committed adultery, lies on the
simple ground of the injury done to the wife, irrespective of whether the woman
was an inciter of the adultery or merely a passive or weakly consenting party,
and irrespective of whether the wife is married in or out of community of
property."
In Valken Vs Berger [1948]
(3) South African Law Reports 532 it was proved and admitted at the trial that
the defendant and the plaintiff's husband committed adultery together and are
at present living in adultery.
Court held: "Where,
in a claim for damages for adultery committed by the defendant with the
plaintiff's husband, the evidence showed that the defendant had persisted in
her adulterous relationship with the plaintiff's husband, and had lived openly
with him and pretended to be and called herself his wife, and had shown a
wanton and flagrant disregard for the rights and feelings of the plaintiff, the
Court awarded the plaintiff an amount of 1,000 pounds and costs."
Ramsbottom J at page 533 observed: "Damages are awarded on two grounds:
first for the injury to the plaintiff and, second, for the actual damage which
the plaintiff may have sustained by reason of the loss of society, comfort and
assistance of her husband in consequence of the adultery." After dealing
with the first ground Ramsbottom J at page 536 and 537 remarked thus: "The
second ground of damage is the effect upon the plaintiff resulting from the
loss of her husband's consortium. Although the husband has continued to
provide substantial funds for the maintenance of his wife and children and
will, no doubt, continue to do so, the plaintiff has been relegated to lonely
husbandless life in a flat, whereas she would have been a happy wife and the
mistress of a house that was to be built. The plaintiff was accustomed to go
about with her husband and his company to enjoy the society friends. That has
been taken from her. A deserted wife is often reluctant to go into the society
and she feels embarrassed in the company of people who knew her as wife.
Although the husband is still the guardian of the children, it is upon the
plaintiff that the responsibility for their upbringing now falls. The husband
continues to give financial support, but there is another kind of support that
a husband gives to his wife and to which a wife is entitled, and that support
the plaintiff has lost." Ramsbottom,J at page 536 further remarked thus:
The adultery, which is proved and admitted, was accompanied in my opinion by
aIf enticing away. As I have said, reconciliation between the plaintiff and her
husband might have been effected had it not been for the defendant. The
defendant has persisted in her adulterous relationship with the plaintiff's
husband and lives openly with him and pretends to be and calls herself his
wife. All this seems to me a very serious injuria. The defendant has
shown a wanton flagrant disregard for the rights and feelings of the plaintiff.
She has usurped the plaintiff's position and has caused the plaintiff to be
relegated to the ignominious status of a deserted wife." I observe that
the facts of that case are very much similar to the facts of this case.
RG Mckerron in his book
titled 'The Law of Delicts 6th edition page 156 and 157 dealing with adultery
states thus: "In practice, the action is generally brought by the husband
against a man who has committed adultery with his wife, but it is also open to
the wife against a woman who has committed adultery with her husband."
"Damages are recoverable by the injured spouse on two grounds- (1) loss of
consortium, and (2) injuria. In assessing the damages recoverable
under the tirst head the court must attempt to estimate as best it can in terms
of money the actual damage sustained by the injured spouse in consequence of
the loss of the society, comfort and services of the guilty spouse. In
assessing damages recoverable under the second head the court must have regard
to all the circumstances of the case; in particular, to the terms upon which
the spouse lived with one another, and the circumstances which the adultery
took place. Learned Author at page 159 citing a passage from the judgment in
Rosenbaum Vs Margolis [1944] WLD 147 at 151 states thus: "It seems to be
clear that at the present day a husband has a right to the consortium of
his wife and the wife to the consortium of her husband, and that each
has a cause of action against a third party who, without jurisdiction, destroys
that consortium."
When I consider the facts
of this case I hold that by the actions of the respondent, the plaintiff has
been relegated to a lonely husbandless state where she cannot introduce
Abeysundara who is her legal husband as her husband to the society and further
she too cannot declare to the society that she is wife of Abeysundara. The
opportunity of introducing Abeysundara as her husband has been grabbed by the
respondent. These matters are proved by the evidence of the respondent who says
that, in her evidence she is living in adultery with Abeysundara. Further she
admits that today she is living with Abeysundara as man and wife although she
is not legally married to him (vide pages 277 and 301). The respondent's
actions have destroyed plaintiff appellant's vanity, dignity and respect that
she hitherto enjoyed.
Applying the principles
laid down in the above legal literature I hold that the plaintiff appellant is
entitled to damages from the respondent.
I have earlier held that
the respondent has alienated Abeysundara's affection from the plaintiff
appellant; that the respondent has enticed Abeysundara to be away from the
plaintiff appellant and to commit adultery with her; that the respondent has
broken the consortium that plaintiff appellant was enjoying with her husband;
and that the respondent has committed matrimonial offences with Abeysundara.
For these reasons, I hold that the respondent has done injury to the plaintiff
appellant and that the latter has suffered loss of consortium that she was
enjoying with her husband. The plaintiff appellant is therefore entitled to
damages. Quantum of damages must be decided. Abeysundara admits that a few days
after the dismissal of the divorce action, his house at Bagatale Road was
gifted to the respondent. This was on 26.9.1985. The second purported marriage
was on 6.10.85. Plaintiff appellant says that in 1985 this was worth about
Rupees ten (10) million. Abeysundara is the legal husband of the plaintiff
appellant. But she is unable to declare this relationship now since the
respondent is living with Abeysundara. When I consider all these matters I hold
that two million claimed by the plaintiff appellant is reasonable and not
excessive. Learned trial judge has not considered most of the matters that I
have stated above.
For the aforementioned
reasons, I hold that the conclusion reached by the learned trial judge
dismissing the plaintiff appellant's case is wrong. I therefore set aside the
judgment of the learned trial judge and hold that the plaintiff appellant is
entitled to the relief claimed in her plaint. I grant the relief claimed by the
plaintiff appellant in her plaint filed in the District Court. The learned
District Judge is directed to implement this judgment. The plaintiff appellant
is entitled to costs of this case and the case in the District Court.
Appeal
allowed
WLR Silva
J
I agree.
CHITRASIRI J.
I had the benefit of
reading the draft of the majority judgment written by Hon. Sisira De Abrew J. I
regret that I am unable to agree with the majority judgment for the reasons
stated in my dissenting judgment. This action was filed by the plaintiff-appellant
(hereinafter referred to as the plaintiff) claiming Rs.2,000,000/- as damages
from the defendant-respondent. (hereinafter referred to as the defendant) In
the District Court of Colombo, learned District Judge dismissed the action of
the plaintiff on 18.12.2003. Being aggrieved by this judgment, plaintiff filed
this appeal seeking to set aside the said judgment.
The cause of action upon
which the plaintiff filed the action in the District Court is succinctly
referred to in paragraph 10 of the plaint. It reads thus:
10.
By reason of the Defendant alienating the Plaintiffs husband's consortium,
enticing him away from plaintiff committing matrimonial offences within the
jurisdiction of this court and holding out by the defendant of a marriage to
the defendant by plaintiffs husband and committing matrimonial offences within
the jurisdiction of this court, the defendant has intentionally caused injury
to plaintiffs good name, reputation, dignity and her feelings. The defendant
has destroyed plaintiffs matrimonial home, consortium, companionship assistance
and privileges which plaintiff was entitled to and enjoyed till the defendant
by one or more of a wrongful and unlawful actions as aforesaid broke up her
marriage and home.
The defendant in her
answer dated 27.4.1987, whilst denying the allegations made in the plaint, had
stated that the plaint was filed maliciously to injure the defendant's
reputation without reasonable and probable cause.
At the outset, it is
necessary to note that this action being an action to claim damages for the
wrongs against matrimonial relationship, the applicable law to the issue is the
Roman Dutch Law. This position in law is clearly stated in De Costa vs. Bank
of Ceylon [72 NLR at page 457 ] His Lordship Weeramantry J in that decision
held thus:
"for all these reasons, I conclude that in terms
of the Proclamation of 23rd
September 1799 the common law of Ceylon was the Roman Dutch Law. "
In the same judgment both H.N.G. Fernando C J and
Weeramantry J expressed the View that only legislation could modify the sources
of law recognized by the Proclamation of 1799. H.N.G.Fernando C J went on
stating that the Proclamation did not authorize deviations or alterations to be
made to the existing sources by the Courts of law.
In the circumstances, there is no doubt as to the
applicability of the Roman Dutch Law to the issue at hand. Indeed the parties
have accepted this position and had acted upon accordingly. Hence, it is
necessary to be mindful that the English Law Rules on the law of torts cannot
be made applicable to prove loss of consortium or adultery alleged by the
plaintiff. I thought it is appropriate to mention the difference in the said
two systems since the learned President's Counsel for the plaintiff in his
submissions has also relied much on the English decision of Evans Vs Evans.
[1899 Probate Division at page 195]
It is also pertinent to note that there are instances
where the courts have deviated from applying Roman Dutch Law principles when
cogent reasons are found to do so. One such instance is found in the judgment
of Sharvananda C J in Ratwatta Vs Goonasekara. [1987 (2) S L R at 260] In that
decision His Lordship rejected the Roman Dutch Law principle of Laesio
enormis in its application to a share transaction. Sharvananda C J was of
the view that "a share" was an English Law concept and that did not
fall into the Roman Dutch Law classification of movables or immovables.
Having
mentioned the applicable law to the issue, I will now turn to examine the
principal issues raised in relation to this appeal. The notion 'loss of
consortium' referred to in the plaint is defined in Kungl Vs Schiefer [1960
(25) DLR 344] and in that decision Schroeder J A held:
"The term 'consortium' is not susceptible of
precise or complete definition but, broadly speaking, companionship, love,
affection, comfort, mutual services, sexual intercourse - all belonging to the marriage
state - take together make up what we refer to as consortium."
The
consortium which is an aspect of marital relationship would liable to be lost
due to the acts such as enticement, harbouring one of the spouses, holding out
that the defendant is married to the husband/wife of the plaintiff and the
like.
The
plaint of the plaintiff is to claim damages from the defendant for the loss of
consortium of her husband Mr. Abeysundera and for committing adultery with him.
These wrongs can generally be described as matrimonial offences. A spouse may
commit a matrimonial offence against the other. A non - party to the marriage
cannot commit a matrimonial offence. In John Perera vs. Mathupali, [71 N.L.R
page 461] Supreme Court referred to the words "matrimonial offence"
as an offence committed by the husband in relation to his wife. In this case,
the plaintiff alleges that the defendant is the cause for committing
matrimonial offences and it is the basis on which the claim for damages is made
from the defendant.
The
law of Actio Injuriarum as found in Roman Dutch Law should be applied in this
instance since it is a claim for injuria caused to the plaintiff. In Actio
Injuriarum, two essential elements are to be established in order to impose
liability.
First being the act constituting an impairment of the
plaintiff's personality and the second being the wrongful intent (dolus)
on the part of the defendant. Wrongful intent is termed as animus injuriandi.
[McKERRON, 7TH Edition pg. 53]
As in all other regular actions, burden to prove those
ingredients lies on the plaintiff. In this case the acts alleged to have been caused
by the defendant include adultery, enticement, breaking up the plaintiff's
consortium, harbouring the husband of the plaintiff, holding out that the
defendant is married to Abeysundara though he, in fact is the husband of the
plaintiff. Simultaneously, it is the duty of the plaintiff to establish the
wrongful intent of the defendant as well.
Proof of intention can be determined upon considering
the acts and the attitudes of the parties concern. In this regard guidance
could be obtained from a judgment by Lord Denning. He, in Gottlied Vs
Gleiser [1958 (1) Q B 267] stated:
"if a husband is to keep
the affection of his Wife he must do it by the kindness and consideration which
he himself shows to her, He must put his faith in her, trusting that she will
be strong enough to thrust away both the possessiveness of her parents and the
designs of would be lovers. If she is weak and false to her trust, the harm
done cannot be righted by recourse to law; nor is money any compensation. The
only thing for the husband to do is to set to work as best he can to
mend his broken life, a task in which these courts cannot help him"
In
Woodwiss Vs Woodwiss [1958 (3) S A 609] it was held that the plaintiff must prove that that a
third party has acted deliberately to entice the wife to leave the
husband, therefore depriving him of her consortium. "The South African
Law of Husband and Wife" by H.R. Hahlo at page 65 states thus:
"Only an intentional intetference with the
consortium is ctionable, just as only an intentional inducement of breach of
contract founds an action for damages."
In
this regard, I would like to rely on the South African case of Wassenaar Vs
Jameson as well. [1969 (2) SAL R 349] The facts of this case are briefly
set out herein below.
"The
respondent and the applicant's wife committed adultery with one another, but
husband and wife were reconciled and lived together for three years. At the end
of this period the respondent and the wife met again and resumed their
relationship. The wife said that the meeting was fortuitous but the husband
said that she had told him that the respondent arranged the meeting. In any
event she refused to return to her husband. She indicated in evidence that she
had decided to leave her husband even before she met the respondent and that
she wished to marry him if he were free to do so. In the application before
court the husband ask for an interdict preventing the continuance of the
delicts of enticement and adultery, on the basis that if the respondent was prevented
from associating with his wife she would get over her infatuation and their
marriage would be saved."
In
the said case, the applicant's claim to an interdict on the ground of
enticement failed because Trollip J. held that enticement had not been proved.
Accordingly,
he refused to infer enticement from the fact that the husband thought his
marriage was happy until the respondent appeared on the scene.
Bearing
these basic principles in mind, I will first consider the alleged loss of
consortium, the plaintiff had with Abeysundara. In order to establish loss of
consortium, the plaintiff in her evidence had made a very strong effort to show
that the defendant had enticed her husband. She also had said that the
defendant acted in such a way to take away the affection of Abeysundera had
towards the plaintiff.
Further,
she alleged that the defendant acted in a manner so as to indicate that the
husband of the plaintiff was married to the defendant. Also she has said that
the defendant harboured her husband even though he was a married man.
Needless to
say, the aforesaid matters involve the primary facts of the case.
Trial
Judge would be the best person to decide those facts since he has the added
advantage to observe demeanor of the witnesses. The learned trial Judge in this
case, who had this opportunity of hearing and seeing the plaintiff after
evaluating of her testimony, (she being the only witness on her behalf) had
come to the conclusion that there was no enticement or taking away the
affection of the plaintiff had with Abeysundera.
Generally,
Appellate Courts are slow in interfering with the decisions of the original
court Judges based on credibility of witnesses. This view was expressed by G.P.S.
de Silva C J in Alwis vs. Piyasena Fernando. [1993 (1) S L R at page 119. In that decision His Lordship held:
"It is well established that findings of primary
facts by a trial judge who hears and sees the witnesses are not to be lightly
disturbed on appeal."
I
also hold the same view on this point and therefore I am much reluctant to
disturb the findings of the learned District Judge made on the primary facts of
the case.
However,
the learned President's Counsel for the plaintiff is of the view that her
findings even as to the facts of this case are erroneous. Therefore, it has
become necessary to consider the evidence recorded in connection with the
factual situations.
Admittedly,
the plaintiff and Mr. Abeysundera married on the 27th of September 1958. In the
year 1962 Abeysundera had proceeded to the United Kingdom on a scholarship and
had returned in 1964. Thereafter, in 1975 Abeysundera has left for Nigeria for
employment. The plaintiff has also joined him in 1976. According to the
evidence of Abeysundera, the plaintiff was not on good terms with him even
then. She too in her evidence had related the disputes erupted over the stay in
Nigeria. Abeysundara in his evidence has stated that the plaintiff scolded him
even in the presence of their friends several times. Even after
returning from Nigeria in the year 1977, they were not living happily.
According to the evidence of Abeysundera there had been an issue when it came
to signing of cheques. Even the plaintiff has stated that there were problems
hen operating the bank account which was a joint account from the time they
were married. Expenses for the day to day living was also had been a problem
between them.
Furthermore, in her evidence she had admitted that she
wrote an eight page letter which was dated 24.05.1980 to her husband
Abeysundara. That letter was marked as D6. In that letter she had admitted that
she and her husband had constant quarrels even on trivial matters. Moreover, in
the said letter she had expressed the view that the troubles they had were due
to the influence of pirith charms. She further went on to write that it was due
to the sprinkling or burying charm ash by their driver. Therefore, it is seen
that by the time the letter was written particularly before 24.05.1980, there
had been quarrels between the husband and the plaintiff.
According to her, those quarrels were due to some
unseen force and not for any act of the defendant.
Accordingly, it is noteworthy to state that those disputes
they had between them were never due to the acts of the defendant at least
prior to 24.05.1980. This action was filed on 03.04.1986. Therefore, if the
cause for the loss of consortium of the plaintiff was the enticement or any
other act of the defendant, it may have been between 24.05.1980 and 03.04.1986.
The plaintiff had relied upon two incidents involving
the defendant and her husband, in order to establish loss of consortium and
adultery. According to her, the first incident had taken place at the work
place [DFCC] of her husband where the defendant too was an employee at the
time. In her evidence, she has stated that when she visited the said office on
5.10.1979, she saw the defendant with her arms putting around her husband's
shoulders. However, both Abeysundera and the defendant had denied this
incident.
The other incident alleged to have taken place was a
trip made in the month of April 1980 to Nawalapitiya by Abeysundera
accompanying the defendant. This trip to Nawalapitiya had not been denied
either by the defendant or by Abeysunadara but they have denied having stayed
in a room at the Nawalapitiya Rest House. Their explanation for travelling to
Nawalapitiya was that it was an official engagement where both were involved.
Such an explanation cannot be rejected outright. Therefore, it is unsafe to
decide that they committed adultery depending purely on oral evidence of the
plaintiff by which no evidence is forthcoming to prove any particular sexual
act.
Apart from the aforesaid two incidents, no other
material has been placed to prove adultery by the defendant until she got
married to Abeysundara after her conversion to the religion of Islam. It is to
be noted that mere filing a divorce action by Abeysundera will not establish
that the defendant lived in adultery with him.
Adultery can only be proved when there is clear
evidence of having sexual relations with a married person. In the
circumstances, upon a consideration of the totality of the evidence, it is not
possible to come to a conclusion that the defendant was living in adultery with
Abeysundera until she got married to Abeysundera on 06.10.1985 after having
professed to the religion of Islam.
Learned
District Judge had also relied on the dates of the relevant incidents in coming
to the conclusion that the plaintiff had failed to establish enticement. She
has first referred to the period namely August 1979 during which month
Abeysundera joined the DFCC. Divorce action was filed on 02.06.1980 by
Abeysundera to have his marriage with the plaintiff dissolved. It was dismissed
on 4.09.1985. The defendant was away from the country for many months between
August 1979 and 02.06.1980. This action was filed on 31.03.1986.
Furthermore,
it is not incorrect to come to a finding that the consortium of the plaintiff
had with her husband had broken down completely when the divorce action was
filed on 02.06.1980. Therefore, if the defendant is to be made liable for the
breakup of the consortium due to enticement or for any of her other acts, it
should have been during the period between August 1979 and 2.06.1980. It covers
a period of ten months. Admittedly, the defendant was away from the country for
more than 4 months out of this period of 10 months. Having considered the
incidents taken place during this period of 10 months, learned trial Judge was
of the view that the plaintiff had failed to prove enticement or any other
wrongful act on the part of the defendant for the breakup of the consortium of
the plaintiff. As I have stated even before, that the defendant by her letter
dated 24.05.1980 had stated that the troubles they had was due to an unforeseen
force and not for any wrongful act of the defendant. Accordingly, I do not see
any misdirection by the learned District Judge in coming to such a conclusion
in the light of the material placed before her. There is no doubt that the
defendant and Abeysundara had lived together since they got married after
having converted themselves to the religion of Islam on 06.10.1985. Therefore,
the question arises whether the defendant is liable for committing adultery
since she married Abeysundara.
At
this stage, it is pertinent to note that this action being an action for
damages, should be decided as at the date of filing the plaint. (litis
contestatio) Action was filed by the plaint dated 3.04.1986. Therefore, it
is now necessary to determine whether the defendant could be made liable to pay
damages for adulterous conduct on her part during the period between 06.1
0.1985 [date on which the defendant married] and 03.04.1986. [date of the
plaint]
According
to McKERRON, adultery is sexual intercourse by a lawful married person
with any person other than his or her spouse. (The Law of Delict by
McKERRON, 7th Edition, at page 166) McKERRON goes on to state that
"since dolus is an essential ingredient of law of adultery, damages
are not recoverable against a defendant who at the time sexual intercourse
takes place was ignorant of the fact that was in violation of the plaintiff s
married rights ..... ". He has stated so having referred to the following
authorities.
[Marth.,
De Crim., 48.3.2.5; Voet 48.5.8,16. Richter vs Wagenaar (1829) 1 M.262; Barker
v. Barker (1829) 1 M.265; Groundland vs Groundland & Alger 1923 W.L.D.217]
Dr.
A. R. B. Amarasinghe in his article on "Adultary as an injuria in South
African and Ceylon Law" citing many authorities had stated:
"In the actions for adultery and enticement, the
wrong consists in the attack upon the consortium; the defendant must have acted
intentionally."
Therefore,
the act of adultery becomes a delict only if it is committed intentionally.
Hence, if the defendant is a person of tender years or a lunatic or a person
who is drugged or even a woman who is raped does not commit adultery.
Accordingly, under the Roman Dutch Law it is a good defence for a defendant to
show that he/she, bona fide and reasonably believed that the plaintiffs
wife/husband was an unmarried person during the period alleged to have
committed adultery.
Learned
President's Counsel for the plaintiff submitted that in Abeysundara vs.
Abeysundara [1998 (1) S L R 185] where a Five Judge Bench held that the
subsequent marriage of Abeysundera had with the defendant was null and void.
Since
the conviction by the Magistrate for bigamy had been affirmed by the said
decision of the Supreme Court, it is correct to state that the marriage between
the defendant and Abeysundera has become void ab initio. Accordingly,
the first marriage of Abeysundera with the plaintiff would continue to exist.
Then the question arises whether it is correct to decide that the defendant
committed adultery when the marriage between Abeysundera and the plaintiff was
subsisting.
As
explained by McKERRON, (Law of Delict 7th Edition page 166) principles
governing the actions under Actio Injuriarum, "dolus" is an
essential ingredient to impose liability for adultery. Therefore, it is the
duty of the plaintiff to prove that the defendant intentionally committed
adultery with Abeysundara. This position in law had been discussed in many
decisions locally as well as in South Africa. It is apparent that after
conversion to Islam, the defendant had acted in the belief that it was within
the law to live with Abesundara having contracted a marriage. The conversion to
the religion of Islam per se would establish that she had no intention
of committing matrimonial offences against the plaintiff. Hence, it is manifest
that the defendant could have been of the opinion that she was not committing
adultery prior to the date of instituting the proceedings in the District
Court. By this date the decision in the Five Judge Bench, in Abeysundara Vs
Abeysundara declaring that the marriage was void had not being pronounced.
Neither the decision of the Magistrate on the issue of bigamy was delivered by
then.
The
Supreme Court decision was on 13/14 of October 1997 whilst the decision of the
learned Magistrate was on 11.01.1994, much after filing of this action. At
least until the decision of the learned Magistrate was delivered on 11.01.1994,
the defendant had been under the impression that she could have a family life
having sexual relations with Mr.Abeysundara.
Though
her bona fide belief may not give rise to a defence before a criminal court,
the Roman Dutch Law principles permit her to take such a defence when it comes
to a claim for damages in a delictual action. In the circumstances, it is clear
that the plaintiff has failed to establish dolus or the intent of the
defendant to commit adultery. Therefore, action of the plaintiff on Actio
Injuriarum should necessarily fail.
It
is relevant to note that the plaintiff has failed to adduce evidence as to the
manner in which her claim is made though she has claimed Rs.20,OOO,OOO/- as
damages in her plaint. In actions to claim damages, specific evidence should be
led to quantify the damages. Even though the plaintiff has come out with
evidence in relation to a transfer of a property by Abesundara in the name of
the defendant subject to his life interest, it will not help establishing the
basis for the damages claimed. On this point, McKERRON states:
[The Law
of Delict, 7th Edition at page 114]
"but in our law, except where
the wrong complained of is an injuria, damages are not as a rule
recoverable unless damage, actual or prospective, is proved to have been
suffered ......... ".
The
amount of damages ought to be awarded for committing adultery depends on the
circumstances of aggravation on the one hand or of mitigation on the other.
Those will depend on the conduct or situation of the plaintiff or her husband
or of the defendant. [Moore Vs Wolffe [1833 Ramanathan Reports 175] Award
of damages can be determined on the actual value of the guilty spouse to the
plaintiff. It was discussed by the Privy Council in Norton Vs Spooner. [9
Moore pee 104] In that decision it was called "substantial and
tangible mischief or actual and positive damage". Such damage would be
caused by the loss of the society, comfort and assistance of the spouse, in
consequence of the adultery. Compensation has to be assessed in favour of
plaintiff, for injury to her feelings, the contumelia, insult and blow
to her marital honour, the "wound inflicted upon feelings of
delicacy" and the loss to her matrimonial and family life.
[De
Silva Vs De Silva (1925) 27 N L R 289 at 310 Alles Vs Alles 46 N L R 231, Dean
Vs Anthonisz 54 N L R 538 Perera Vs Halwatura 59 N L R 233]
In
this case, I do not find evidence to establish the criteria referred to in the
above authorities. Therefore, even if the Court decides that the cause of
action alleged by the plaintiff has been proved, [It is not so in this
instance] Court will not be able to grant relief quantifying damages as
required by law.
For
the aforesaid reasons I am not inclined to interfere with the decision of the
learned District Judge. Accordingly, I dismiss the appeal with costs.
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