[PRIVY COUNCIL.]

1916 Present : The Lord Chancellor, Lord Shaw, and Lord Parmoor.

SOYSA v. SOYSA

229-D. C. Colombo, 36,962.

Husband and wife-Deed of separation a mensa et thoro-Annuity to wife-Ordinance No. 15 of 1876, s. 13.

By an agreement of voluntary separation a mensa et thoro the appellant undertook to pay his wife (the respondent) during her life " the annual sum of Rs. 7,200 in monthly instalments of Rs. 600 each."

Held, that the agreement of separation was not illegal. And that the annuity was valid under section 13 of Ordinance No. 15 of 1876.

THE facts are set out in the judgment.

July 25, 1916. Delivered by LORD SHAW: -

This is an appeal against a judgment pronounced by the Supreme Court of the Island of Ceylon, dated August 7, 1914, affirming the judgment of the District Court of Colombo, dated May 11, 1914.

The parties were married on September 22, 1903. There is no issue of the marriage.

The appellant had made an antenuptial settlement in favour of the respondent, his wife, and during the marriage he also made to her certain substantial gifts. There is no question with regard to these in this case.

On March 25, 1912, they entered into an agreement of voluntary separation a mensa et thoro. Under this agreement the appellant undertook to pay the respondent during her life " the annual sum of Rs. 7,200 in monthly instalments of Rs. 600 each."

On January 15, 1913. the respondent obtained a decree (absolute) of divorce against her husband in respect of adultery committed by him, and the marriage was thus dissolved. By the agreement sued on, however, this event had been provided for, and it was stipulated that " nothing in this indenture shall prejudice or affect the right " to sue for a dissolution of the marriage. The agreement further provided that " the dissolution of the said marriage by reason of such misconduct shall in no manner affect or prejudice the provision heretofore and by these presents made for the said " wife.

In the present suit she claimed Rs. 600, being the instalment payable under the agreement to her on August 10, 1913. The action is, of course, a test as to her rights to her annuity under the agreement.

In the Court below various defences were taken, which were very properly not insisted in before the Board. In particular it was not contended that the agreement sued on was voidable as contrary

to public policy. Although not strongly contended for, it was, however, suggested in argument that such an agreement for a voluntary separation was inconsistent with the principles of Roman-Dutch law. Their Lordships see no reason to doubt the judgment of the Supreme Court thus expressed upon that subject by Mr. Justice de Sampayo:.- "I cannot find any authority for saying that under the Roman-Dutch law an agreement for separation is wholly illegal." The learned Judge investigates with care the authorities upon the topic, and sums these up by saying: - " The result of all the authorities is that an agreement for voluntary separation and a provision as to property are not only not illegal, but valid as between the parties themselves, and only ineffectual for certain purposes."

More stress was laid in argument upon certain principles put forward as those of the Roman-Dutch law, and said to be still operative, namely, (1) that the funds out of which this annuity was derived were within the scope of the communio bonorum, and consequently fell to the husband in virtue of his jus mariti; while as to the control and management thereof, this was also entirely his, in virtue of his right of marital administration. The second point put forward was that under the same assumption, viz., that the situation was governed by Roman-Dutch legal rule, gifts which would include annuities such as the present were void between husband and wife. Upon the latter point there might be a variety. of view as to whether donationes inter virum et uxorem