Present: Schneider and Dalton JJ.

DE SILVA v. DE SILVA et al.

53 and 53a-D. C. Colombo, 10,859.

    Divorce-Forfeiture of property of the offending spouse-Roman-Dutch Law-Measure of damages-Objections to decree-Authority of proctor-Civil Procedure Code, ss. 617, 618, and 772.

The forfeiture of property of an adulterous spouse contemplated by the Roman-Dutch Law has reference only to the benefits derived by him or her under the marriage, and does not extend, to the separate property of the offending spouse.

Under our Code, the Court has power, on entering a decree for the dissolution of a marriage, to make an order charging the property1 of the offending wife for the benefit of the husband.

In an action for divorce brought by a husband, the nature of damages awarded against a co-respondent is compensatory, not punitive.

The measure of damage is based upon two considerations-

(a) The actual value of the wife to the husband ;

(b) The proper compensation to him for the injury to his feelings, the blow to his honour, and the hurt to his matrimonial and family life.

The principle laid down in Butterworth v. Butterworth & Engle field[1 (1920) 89L . J. P. P. 151.] followed. -

A proxy granted to a proctor to act in the District Court is sufficient authority to enable him to give notice of a statement of objection to a decree under section 772 of the Civil Procedure Code.

Observations by Schneider J. on the scope of section 772 of the Code.

ACTION by the plaintiff for a dissolution of his marriage with the first defendant on the ground of her adultery with the second defendant, from whom the plaintiff also claimed a sum of Rs. 100,000 as damages. The plaintiff further claimed a forfeiture of her property in his favour by reason of her misconduct. Neither of the defendants appeared in Court to give evidence, and the only direct evidence was that of the plaintiff, who produced certain documents in his possession. After hearing the evidence the learned District Judge made order decreeing a divorce a vinculo matrimonii, and directed a settlement, securing to the plaintiff an income of Rs. 12,000 a year out of the property of the first defendant; as against the second defendant, plaintiff was awarded a sum of Rs. 10,000 and costs.

From this decree the defendants appealed.

Drieberg, K.C. (with him Crooa Da Brera) (on a preliminary objection), for first defendant, appellant.-The plaintiff has not De Silva appealed but has put in a statement of objections under section 772 of the Code. That statement is ineffectual as it has not been properly stamped. Objection to the decree is a proceeding in the Supreme Court. It should therefore be stamped as in the Supreme Court, but it has only been stamped as if it were a part of a proceeding in the District Court. Besides, the proxy granted to the proctor is to act in the District Court. As objection to the decree is not a proceeding in that Court the proxy does not authorize him to file the objections.

The statement of objections is, therefore, ineffectual, and the plaintiff cannot be heard thereon.

J. S. Jayewardene, in reply, for plaintiff, respondent.-The objection comes too late, Notice has been accepted by proctors of the other side, and the plaintiff ought to be heard on his objections to the decree.

The proxy authorizes the presentation of the petition of appeal. By parity of reasoning this too must be considered a proceeding in the Supreme Court, but the proxy enables the proctor to present it.

On the question of the stamping of the document it is sufficient to state that the document does not become of no effect. At the most the party will be liable to pay the penalty provided by the Ordinance for such cases.

(The Court overruled the objection.)

Hayley (with him N. K. Choksy), for appellant in 53.-Concedes that the charge of adultery has been made out, and that he is liable in damages, but submits tha