1951 Present: Dias S.P.J. and Gunasekara J.

SUDU BANDA, Appellant, and PUNCHIRALA, Respondent

S. C. 323-D. C. Badullu 8,969

Injuria-Mediate injury-Defamation of wife-Right of husband to sue.

Under the law of Ceylon a defamatory statement about the honour or chastity of a wife is an injury to the husband and gives him a cause of action. Appuhamy v. Kirihami (1895) 1 N. L .R. 83 distinguished.

APPEAL from a judgment of the District Court, Badulla.

E. B. Wikramanayake, K.C., with N. Kumarasingham, for the plaintiff appellant.

Cyril E. S. Perera, with M. A. M. Hussein, for the defendant respondent.

Cur. adv. vult.

 May 23, 1951. DIAS S.P.J.-

This case raises an important and interesting question of Roman Dutch Law. The defendant is alleged to have stated in a petition addressed to the Education Department that Bandaramenika, who is the married wife of the plaintiff-appellant, was living in terms of illicit intimacy, or was committing adultery with one P. T. M. K. Banda, an assistant teacher in a government school. The lady instituted action against the defendant and recovered damages for the injury caused to her reputation. In the present action her husband has sued the defendant for the injuria caused to Him by reason of his wife's honour and chastity having been defamed by the defendant. The question for decision is whether such an action lies in Ceylon.

The District Judge following the Full Bench case of Appuhamy v Kirihami 1[(1895) 1 N. L. R. 83.] dismissed the plaintiff's action with costs.

Under the Roman Law an injury to the wife, child or servant was. construed to be an injury to the husband, parent or master. In Voet XLVII. 10. 6 the rule of the Roman Law is stated thus : "In addition to the foregoing cases, a husband may be injured through his wife, and an unmarried man through the woman who is betrothed to him. Conversely, however, if an injury has been done to such husband or un-married man, the wife or the intended wife respectively cannot on that account maintain an action of injury ; for (as Voet quaintly adds) it is fitting that wives should be under the protection of their husbands, but not that husbands should be under the protection of their wives " de Villiers pp. 67, 68. Under the modern law of Ceylon, however, it can happen that a husband may be under the protection of his wife-see s. 26 of the Married Women's Property Ordinance (Chapter 46). This question, however, does not concern us in the present case.

McKerron (2nd edition) at pages 54-55 discusses this principle and sums up as follows: "It has been questioned, however, whether the whole trend of modern law is not to discourage any such principle. If this be so, then there is much to be said in favour of confining the principle in the

modern law to the relationship of husband and wife. This is the most intimate of human relationships, and there is ample authority in the other branches of the law for placing it in a category by itself ". At page 170 McKerron says : " Thus, in certain circumstances a husband could sue for an injuria to his wife, a paterfamilias for an injuria to his son or slave ".

Professor E. W. Lee in his text-book on the Roman Dutch Law (4th edition) page 335 says-" In the Roman Law an injury to wife, child or servant was construed as an injury to the husband, parent or master-Voet XLVII. 10. 6. There are South African cases in which an insult to or defamation of a wife has been held to give the husband a-cause of action ". Professor Lee refers to the following South African cases-Banks v. Ayres 1[(1888) 9 Natal L. R. 34.], Jacobs v. Macdonald 2[(1909) T. S. 442.]. He also makes reference to the Ceylon case of Appuhamy v. Kirihamy 3 in the following terms : " In the Ceylon case of Appuhamy v. Kirihamy3 [ (1895) 1 N. L. R. 83.]it was said that a father is not entitled to sue for words defamatory of his daughter, although he may have felt pained a