Dean, S.D.M. V. Anthonisz, E.A.

[IN THE PRIVY COUNCIL]

1953 Present : Lord Normand, Lord Cohen, Sir Lionel Leach
and Mr. L. M. D. de Silva

S. D. M. DEAN, Appellant, and E. A. ANTHONISZ, et al.,
Respondents

PRIVY COUNCIL APPEAL NO. 48 OF 1951

S. C. 492-D. C. Colombo, 1,580

Divorce-Adultery of wife-Assessment of quantum of damages.

In an action for divorce instituted by a husband against his wife on the ground of adultery, the two main considerations governing the award of damages as against the co-respondent are (a) the actual value of the wife to the husband, (b) compensation to the husband for injury to his feelings, the blow to his marital honour and the loss to his matrimonial and family life. In assessing the damages the Court may take into account the fact that the plaintiff was indiscreet in allowing the close association of the co-respondent with his family too long and only took action when matters had gone too far.

APPEAL from a judgment of the Supreme Court.

Stephen, Chapman, for the second defendant appellant.

No appearance for the respondents.

Cur. adv. vult.

539

June 29, 1953. [Delivered by SIR LIONEL LEACH]-

This is an appeal from a judgment and decree of the Supreme Court of Ceylon, dated the 1st September, 1950, affirming a judgment and decree of the District Court of Ceylon, dated the 21st December, 1948, in matrimonial proceedings instituted by the first respondent against his wife, the second respondent, in which the appellant was cited as a co-defendant. The first respondent claimed against his wife a decree of divorce a vinculo matrimonii on the grounds of malicious desertion and adultery with the appellant and against the appellant an order for the payment of Rs. 25,000 as damages. The second respondent denied that she had maliciously deserted her husband, but admitted adultery with the appellant. The appellant admitted the averments in the plaint in so far as they concerned him, but resisted the claim for damages. He contended that having regard to the first respondent's conduct and to all the circumstances of the case the Court should not award damages.

The District Judge negatived suggestions of connivance and condonation on the part of the first respondent and found that the second respondent had maliciously deserted her husband, that she had been living in adultery with the appellant since the month of October, 1946, and that the first respondent was entitled to recover from the appellant Rs. 10,000 as damages. Accordingly he granted the first respondent a decree nisi dissolving his marriage with the second respondent and ordered the appellant to pay to the first respondent Rs. 10,000 and his costs of the action. He also directed that the first respondent should have the custody of the two children of the marriage. The appellant appealed to the Supreme Court against the finding of the District Judge on the issue as to damages, but his appeal was dismissed with costs. In his appeal to Her Majesty in Council the appellant asks that the award of damages be set aside or modified.

Before the Board Mr. Chapman on behalf of the appellant raised two contentions. In the first place he said that in awarding Rs. 10,000 as damages the District Judge was wrongly influenced by a finding that the appellant had won the affections of the second respondent by his wealth and the giving of expensive presents and submitted that it had not been proved that expensive presents had been given. In the second place he said that the figure of Rs. 10,000 was so large that it was out of all proportion when taken into consideration with the class of people concerned.

The first and second respondents were married on the 28th December, 1933. The first respondent was then employed by a commercial firm in Colombo, apparently as a stenographer, at a salary of Rs. 175 a month. At the time of the hearing his salary was Rs. 250 a month " plus allowance ". The second respo

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