1938 Present: Hearne J.
 
FERNANDO v. FERNANDO

771-P. C. Panadure, 49,356.

Maintenance-Agreement to separate by mutual consent-Waiver of future rights to maintenance-Wife's offer to return to husband-Claim to maintenance-Ordinance No. 19 of 1889, s. 5.

Where husband and wife agreed to separate by mutual consent and the wife thereafter offered to return to the husband and, on his refusal, applied for maintenance,-

Held, that the agreement to separate did not debar the wife from applying for maintenance, if the husband was not maintaining her at the time, unless she was living in adultery or refused to live with him without sufficient reason.

Goonewardene v. Abeywickreme (18 N. L. R. 69) followed.

APPEAL from an order of the Police Magistrate of Panadure.

In 1934 the applicant and her husband entered into a deed under which she received Rs. 250, agreed to live separately and waived all her rights to maintenance. She came into Court in 1938 and claimed maintenance under the Maintenance Ordinance, 1889. The learned Magistrate ordered maintenance from which order the respondent appealed.

H. V. Perera, KC. (with him H. E. Amarasinghe and D. M. Weerasinghe), for respondent, appellant. -Payment under the deed of separation was made to the wife. Thereafter she came into Court and stated that she repudiated the agreement. The learned Magistrate thought that she could repudiate it. Further, in evidence she had stated that she was not aware of what she wrote. She said that she wanted to go back to her husband and that he refused to have her. This evidence was contradicted by that of the respondent, appellant. Under the existing law a deed could be entered into because the old Roman-Dutch law had been abrogated as was held in Soysa v. Soysa 1 Under section 5 of the Ordinance a wife could not claim maintenance-see Micho Hamine v. Girigoris Appu 2. His Lordship Mr. Justice Pereira in Goonewardene v. Abeyewickreme3 thought that Micho Hamine v. Girigoris (supra) applied only where the parties remained of one mind as to separation. The ?second appeal in this case is reported in 17 N. L. R. 450. In Maliappa Chetty v. Maliappa 4, it was held that a separation by mutual consent contemplated by section 5 of the Ordinance must be one entered into under circumstances which would justify a judicial separation-see 1 Maasdorp (5th ed.), p. 82 as well. If the wife can repudiate the contract she can do so by an action for restitution of conjugal rights-see Stone v. Stone 5. One party cannot set it aside except in a competent Court and the Magistrate's Court is not the one for it. According to the evidence there were between the parties differences which would justify a judicial separation. Hence the deed of separation was valid. Counsel cited Voet 24, 2, 19, 20.

1(1916) 19 N. L. R. 146.
2 (1912) 15 N. L. R. 191.
3 (1914) 18 N. L. R. 69
4 (1927) 29 N. L. R. 78
5 (1917) C. P. D. 143.

G. P. J. Kurukulasuriya, for applicant, respondent. -The object of the Ordinance is to prevent wives and children being left destitute by husbands. Prior to this Ordinance, the neglect of wives and children was an offence under the Vagrancy Ordinance. Section 3 gives the ground of maintenance. The defences are given in section 5 so far as the wife is concerned. A reconciliation between husband and wife is always favoured. The two people must be of the same mind for mutual separation. The section should not be construed in a mannar to exclude a person who had lived separately by mutual consent at some time previous to the application. In Simo Nona v. Melias Singho 1 the words ?is living in adultery? are explained. A civil right may be waived but a statutory liability cannot be waived. Hence as soon as the woman has repudiated the agreement she could claim maintenance. Either party . . could terminate such an agreement-See Silva v. Silva 2 & Goonewardene v. Abeyawickreme (supra) In