Karunanayake V. Karunanayake

1937   Present : Maartensz and Hearne JJ.

KARUNANAYAKE v. KARUNANAYAKE.

36-D.C.Galle, 34107.

Divorce-Amount of alimony-Determination of alimony-Dissolution of marriage-Wife's right to recover dowry-Roman-Dutch law-Matrimonial Rights and Inheritance Ordinance, s. 19.

Permanent alimony granted to a wife on the dissolution of a marriage is, as a rule, larger than alimony pending the action which is fixed by section 614 of the Civil Procedure Code at a sum not less than one-fifth of the husband's average nett income for the three years preceding the date of the order.

An order for the payment of permanent alimony should be made after the decree nisi dissolving the marriage is made absolute.

The amount of alimony may by consent of the parties be determined before the decree absolute.

On the dissolution of a marriage between parties who are governed by the Matrimonial Rights and Inheritance Ordinance of 1876, the wife is not entitled to recover movable property given to her as dowry, which becomes the absolute property of the husband, under section 19 of the Ordinance, unless the husband has contracted himself out of the provisions of the section.

THE plaintiff sued the defendant, her husband, for a dissolution of their marriage on the ground of his adultery, for the return of a sum of Rs. 6,550 given to him as dowry and for alimony of Rs. 300 a month.

The learned District Judge gave judgment for the plaintiff ordering a dissolution of the marriage, condemned the defendant to pay her a sum of Rs. 5,000 as respecting her dowry and Rs. 225 per month as alimony.

Brooke-Elliot, K.C. (with him H. V. Perera, K.C., S. Nadesan, C. Seneviratne, and A. L. Jayasuriya), for defendant appellant.-The Roman-Dutch law doctrine of forfeiture of benefits applied to those-benefits derived from the aggrieved party. Here therefore, the plaintiff cannot resist the defendant's claim to the sum of Rs. 5,000 given as dowry to the defendant-vide de Silva v. de Silva[1 27 N. L .R. 289] which held that it was just the benefit derived from the other party that was forfeited. Here the gift of Rs. 5,000 was by the parents in consideration of the defendant's marriage. Forfeiture applies only to gifts between the parties, as by the wife to the husband. The gift should be earmarked; there should be an intention to preserve the money or to convert it into some property.

A Court having matrimonial jurisdiction cannot try a claim for damages for breach of trust.

As regards the quantum of alimony-vide Deane v. Deane [. 2 (1858) 4 Jurist N. S. 268.] (one-fifth of husband's income).

Apart from the question of damages, one is not vindictive in the grant of alimony.

R. L. Pereira, K.C. (with him E. G. P. Jayetilleke and Colvin R. de Silva), for plaintiff, respondent.-it is wrong to state that the quantum of alimony should be one-fifth of the husband's income. Vide Brown &

Latey on Divorce, p. 160-Alimony pendente lite should be on the basis of one-fifth of joint income.- (The words in section 614 of the Civil Procedure Code are: " In no case less than one-fifth".) And permanent alimony is on the basis of one-third of joint income. The Court has discretion to award a larger or less sum. Vide Cooke v. Cooke [1 (1812) 2 Phil. 40.]-where the joint income was £800 the Court awarded £400; also Smith v. Smith' [2 (1814) 2 Phil. 235.] where again the alimony awarded was one-half of the joint income, £1,000 out of £2,000. Also Avilla v. Avilla[3 (1862) 31 L. J. P. M. and A. 176.]; Warren v. Warren'[4(1890) 63 L. Times 264.] Deane v. Deane (supra).

Brooke-Elliot, K.C., in reply.-The English authorities show that permanent alimony can be one-half of the income. The words joint, income would mean that the husband is not to be unduly beggared.

[MAARTENSZ J.-We desire to hear argument in this case on the following questions which appear to arise from the proceedings, and which were not discussed

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