Mohitiappu Et Al. V. Kiribanda Et Al.,

Present : Garvin A.J. and Jayewardene A.J.

MOHITIAPPU et al. v. KIRIBANDA et al.      1923.


98-D. C. Kegalla, 6,197.

Refusal of a husband to consummate marriage-Action by wife for damages against husband and person instigating the husband to do so.

The refusal of a husband to consummate a marriage does, not amount to a tort giving rise to a claim for damages. Refusal to cohabit, that is, to consummate the marriage, amounts in law to desertion, and entitles the wife to obtain a dissolution of the marriage.

Both under the Roman-Dutch law and the English law husbands have been entitled to bring action for damages against persons, who maliciously or without just cause, have enticed away their wives and procured them or have induced them to absent themselves from their husbands. In the Roman-Dutch law no case can be found where a wife has been held entitled to bring a similar action when the husband is kept away from her--probably because she has no locus standi in judicio without her husband. A Kandyan wife is in the eye of the law a femme sole, and enjoys all the rights which a married woman in England has under the Married Woman's Property Act, 1882, and more especially if she is married in binna, and there is no reason why she should be held disentitled to maintain an action of this kind.

THE plaintiffs sued the defendants, appellants, in the District Court of Kegalla in case No. 6,197 for the recovery of a sum of Rs. 350, being damages sustained by the refusal of the first defendant to consummate his marriage with the second plaintiff.

Of consent a preliminary issue of law was argued, whether there was a misjoinder of parties and of causes of action, and the learned District Judge on June 12, 1923, held on that issue in favour of the plaintiffs.

The defendant appealed.

F. de Zoyza, for defendants, appellants.

Keuneman, for plaintiffs, respondents.

The following authorities were cited at the argument:-8 C. W. R. 149 ; 16 Halsbury, 318, 319, sections 627-630 ; 9 H. L. 577, at page 591; 4 N. L. R. 316; De Villiers, p. 36, p. 82.

Cur. adv. vult.

September 13, 1923. JAYEWARDENE A.J.-

This is a peculiar action. The parties are Kandyan Sinhalese.

The second plaintiff is the wife of the first defendant. She alleges that she married the first defendant with the consent of the first plaintiff and the second defendant. I presume they are the fathers of the second plaintiff and first defendant respectively. She further alleges that since the date of the marriage her husband, the first defendant, at the instance of the second defendant, has refused to consummate the marriage and has deserted her. By reason of this conduct the plaintiffs say they have been greatly disgraced in the eyes of the public and have suffered damage in reputation, which they estimate at Rs. 350. They claim this sum jointly and severally from the defendants.

The defendants filed a joint answer containing a general denial of all the allegations in the plaint, including the averment of marriage. They further pleaded that this action was not maintainable in law as there was a misjoinder of parties and causes of action. No objection was taken on the ground that the plaint disclosed no . cause of action. From the issues suggested for the defendants it would appear that they now admit the marriage between the second plaintiff and the first defendant. The first issue which raised the question of misjoinder of parties and causes of action was taken up, and the Court's decision invited on it as a preliminary issue. The learned District Judge held that there was no misjoinder of parties and causes of action. On the plaint, as it stands, there is clearly no misjoinder of either parties or causes of action. Damages are claimed against both defendants as a result of a tort committed by the first defendant at the instance of the second. They can be sued in the same action if

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