Fernando Et Uxor V. Ammal

Present: Mr. Justine Wendt and Mr. Justice Middleton.

FERNANDO et uxor v. AMMAL.

D. C., Colombo, 23, 809.

Res judicata-Woman married after Ordinance No. 15 of 1876-Judgment against husband in respect of the wife's separate estate -Estoppel -Abolition of community of property -Bights of wife -Roman-Dutch Law -Ordinance No, 15 of 1876, ss. 8 and 20 -Civil Procedure Code (Ordinance No. 2 of 1889).

A judgment obtained against the husband alone of a woman married, after Ordinance No. 15 of 1876 came into operation, in respect of her separate property, does not bind the wife.

The repeal of section 20 of Ordinance No. 15 of 1876, which enabled a wife to appear in Court as a party to an action by the Civil Procedure Code, did not revive the law that existed prior to the passing of the said Ordinance.

Middileton J. -The alteration of the law relating to married woman by Ordinance No. 15of 1876 must of necessity have conferred on a married woman the right to appear in Court as a party to an action, assisted by her husband.

APPEAL by the plaintiffs from a judgment of the District Judge (Joseph Grenier, Esq. ) dismissing their action. The facts material to the report sufficiently appear in the judgments.

Bawa (with him B. F. de Silva), for plaintiffs, appellants.

Walter Pereira, K. C., S. - G. (with him Tisseveresinghe), for the defendant, respondent.

Cur. adv. vult.

July 6, 1909. Wendt J. -

The facts upon which this appeal turns are fully set out in my brother Middleton's judgment, and I need not deal with them in detail. The most important question argued before us was as to the effect upon the first plaintiff's rights in the house No. 45 of the decree obtained against her husband alone in a former action, No. 19, 170, of the same Court. The plaintiffs were married under the Ordinance No. 15 of 1876, and the house was the first plaintiff's separate property under section 9 of that Ordinance, It was not liable for the debts or engagements of her husband, and her receipts alone or those of her agent were constituted a good discharge for the rents, issues, and profits arising from such property. She had as full power of disposing of such property as if she were unmarried, with the one qualification that for any disposition inter vivos her husband's consent in writing was necessary, although even that might be dispensed with by the Court if unreasonably withheld, and in certain other

cases. The community of ownership between husband and wife which existed under the Roman-Dutch Law was abolished (section 8), and so was the exclusive administration of the common property formerly vested in the husband. By section 20 of the Ordinance a married woman, whether married in community or under the Ordinance, was empowered to maintain or defend in her own name any action in respect of her separate property, and had in her own name for the protection of such property the same remedies as if she were unmarried, with the proviso that her husband might with her consent in writing maintain or defend any such action in her behalf. That is to say, that she might in writing authorize her husband to sue in her name, or, if she were sued in her own name, to defend the action on her behalf. In either case the wife was to be the party to the action, even when married in community. Nothing is Said as to the necessity of suing the husband, nor anything that implies the possibility of his being substituted for his wife. Section 20 is no longer in force, having been repealed by the Code of Civil Procedure, Ordinance No. 2 of 1889. The Code contains no provision as to the liability of a married woman to be sued, either generally or in respect of her separate estate, or as to the mode of suing her. The law (if such existed) winch prevented the appearance of a wife in Court and necessitated the suing of her husband, even in cases in which, if a femme sole, the wife would have been usable, was swept a

Click Here to Read the rest of this document