1927 Present: Lyall Grant J.

MALIAPPA CHETTY

v. MALIAPPA.


759-P. C. Colombo, 13,368.

Maintenance-Separation 6y mutual consent-Binding effect-Ordinance No. 19 of 1889, s. 5.

Where an application for maintenance by a wife was resided by the husband on the ground that they were living separate,-

Held, that the separation by mutual consent contemplated by section 5 of the Maintenance Ordinance must be one entered into under circumstances which would justify a judicial reparation.

APPEAL from an order of the Police Magistrate of Colombo.

H. H. Bartholomeusz (with Canakaratne), for appellant.

Weerasooriya, for respondent.

July 1, 1927. LYALL GRANT J.-

This is an appeal from an order of the Police Magistrate of Colombo allowing a wife maintenance from her husband. The first hearing of the case was on September 28, 1926, when the defendant pleaded (1) that the applicant had deserted the respondent of her own accord and without sufficient reason and (2) that the parties were living apart by mutual consent.

Counsel for the applicant stated that the applicant was prepared to return to the defendant and offered to do so. Defendant's counsel then said that he was not now prepared to take the applicant back.

The question was then argued whether the respondent's allegations constituted a relevant defence.

The learned Police Magistrate held that they did not do so. He found on the authority of Goonewardene v. Abeyewickreme1[18 N.L.R. 39.] that the continuance of an agreement to live apart depended on the continued consent of the parties and that it was put an end to by the applicant's offer to return to her husband.

Accordingly he restricted the question of proof to the amount of maintenance to be paid. Evidence on that point was led on October 20, 1926, and the amount of maintenance was then fixed of consent at Rs. 75 a month.

On October 21 the defendant presented a petition of appeal from the order of September 28. A preliminary objection was taken at the hearing that the appeal was out of time. It is obvious,

however, that the order of September 30 was an interlocutory order and not appealable, and that the appellant could appeal against the final order only. This appeal was entered at the earliest possible opportunity. Accordingly I over-rule the objection.

The principal point argued on appeal was as to the binding character of an extra judicial arrangement for a separation by consent.

That such an agreement is not illegal under our law wan authoritatively decided by the Privy Council in Soysa v. Soysa.1[19 N. L. R. 146]A dictum of de Sampayo J., quoted with approval by the Board in this case, runs as follows: -

"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"

Maasdorp, Institutes of Cape Law, vol. 1, p. 76, says: -

" An extra judicial agreement for separation will be effectual as between the spouses themselves .... Such an agreement also will not be binding even upon the spouses themselves, unless circumstances existed at the date of the separation which would have justified the Court in granting a decree of separation, the reason of this being that such an agreement, being without legal consideration, would amount to a donation between husband and wife. "

The grounds which would satisfy such a decree are set forth as follows by Maasdorp at page 75: -

" Where owing to habitual cruelty or the illtreatment of one spouse by the other, or continuous quarrels or dissensions between the spouses, or some other equally valid reason, the continued living together of the spouses has become insupportable or dangerous to the life of one or other of them.

It must be noted that in the present case no formal agreement for separation has been entered into. All that is alleged by the