Emelda Fernando V. Elaris Fernando

1961 Present : H. N. G. Fernando, J., and Tambiah, J.

M. EMELDA FERNANDO, Appellant, and W. S. ELARIS FERNANDO,
Respondent

S. C. 164 -D. C. Negombo, 81/L

Divorce action--Rights of parties to bring separate actions in respect of settlement of property-Civil Procedure Code, ss. 6'17, 618'-Rule of forfeiture of benefit as between spouses-Inapplicability of the rule in regard to the separate property of the offending spouse-"Ante-nuptial contract"-Matrimonial Sights and Inheritance Ordinance, No. 15 of 1876, s. 8.

Where, in a divorce action, the parties do not invite the Court to grant any relief by way of settlement of property under section 617 or section 618 of the Civil Procedure Code they may be permitted by the Court, on their election, to reserve their rights to file separate actions under the common law for the recovery of any property in the hands of each other.

" The common law remedy was not abrogated as a result of the enactment of those sections (sections 617 and 618 of the Civil Procedure Code), but rather remedies envisaged by these sections are complementary to the action available under the common law. However . . . the parties cannot have the benefit of both remedies but should elect to claim either the remedy under the common law or those available under the Civil Procedure Code. "

Under the common law the rule of forfeiture of benefits 5s between spouses does not apply to the separate property of the offending spouse.

Two months prior to the marriage between the plaintiff-appellant and the defendant-respondent (wife and husband respectively) the plaintiff's brothers donated certain property to the plaintiff and defendant in equal shares " as a token of mental pleasure and for their future prosperity " which the donors had "towards the marriage of the said donees". After dissolution of marriage on the ground of malicious desertion by the plaintiff, the plaintiff and the defendant claimed in the present action each other's there of the donated property. The trial Judge allowed the claim of the defendant and dismissed that, of the plaintiff.

Held, that the defendant, while he was entitled to retain the share which had been donated to him, was not entitled to the share of the plaintiff, despite the fact that the plaintiff was the offending spouse. It could not be said that the share which vested in the plaintiff under the deed of donation was as a result of an ante-nuptial contract. Nor could it be said that the share which the plaintiff received was a benefit she derived from her spouse by marriage. She was already vested with title when she married and, therefore, this was her separate property and, as such, it was not subject to forfeiture.

Wijesundere v. Bartholomew (1885) 6 S. C. C. 141, not followed. APPEAL from a judgment of the District Court, Negombo.

J. A. L. Coaray, with N. U. Jayawardena, for the Plaintiff-Appellant.

H. Wanigatunga, with D. C. W. Wickremasekera, for the Defendant-Respondent.

Cur. adv. vult.

June 23, 1961. TAMBIAH, J.-

This action is the sequel to a divorce action filed by the respondent against the appellant on the grounds of adultery and malicious desertion.

About two months prior to the marriage between the appellant and the respondent, the appellant's brothers, by deed No. 10264, dated 1st November 1943, marked P1, donated, a half-share of the property described in the Schedule to the plaint, to the appellant and respondent in equal shares "as a token of mental pleasure and for their future prosperity " which the donors had " towards the marriage of the said donees ". After dissolution of marriage, the appellant brought this action for the settlement of a quarter-share of the said land. The respondent denied the appellant's right to this relief and claimed, by way of reconvention, a decree settling the one-fourth share of the said land on the respondent, since he had obtained the divo

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