Maung Po Nyun vs Ma Saw Tin

Sir Lancelot Sanderson, J.

This is an appeal by Maung Po Nyun, who was the defendant in the suit, against a de cree of the High Court of judicature at Rangoon, dated the 27th February 1925, affirming a decree of the District Judge of Myaungmya, dated the 13th Decem ber 1923. The plaintiff, who is the respondent in this appeal, brought the suit against her husband, claiming a divorce on account of his desertion and a partition of the properties specified in the Schs. A and B of the plaint, She alleged that she was entitled to one-third of the properties in Sch. A and to one-sixth of the profits in Sche dule B. The learned District Judge made a decree granting the plaintiff a divorce and the shares in the above-mentioned properties which she claimed. The defendant appealed to the High Court, which dismissed his appeal with costs. At the hearing of the appeal before their Lordships, the learned counsel, who appeared for the appellant-defendant, did not contest the plaintiff'' right to a decree for divorce, and the arguments on both sides were confined to that part of the decree which awarded to the plaintiff one-third of the properties mentioned in Sch. A and one-sixth of the profits specified in Sch. B. The learned counsel for the appellant-defendant did not con test the plaintiff'' right to the one-sixth of the profits in Sch. B, but ha argued that the plaintiff was entitled merely to one-sixth of the property comprised in Sch. A and not to one-third thereof, as decreed by the Courts in Burma. The appeal, however, involves much more than the point which has been stated above, and that is by reason of a prin ciple which was adopted by the Courts in Burma and upon which they based their judgments. For the moment it may briefly be referred to in the words of the learned District Judge as follows :

Where a divorce is adjudged through the fault of one party, the innocent party obtains all the property, including the joint property as well as the separate property of the guilty spouse.

It is clear, therefore, from the above-mentioned statement, that this appeal involves a question of great importance, and it is necessary for their lordships to decide whether this statement of the law, which must obviously have far-reaching effects, can be supported.

The facts of the case may be shortly stated as follows :

The defendant had married another wife before he married the plaintiff. The first wife lived with the defendant and his adoptive mother for some time, and then, in consequence of quarrels, the wife left the defendant and went to live with her parents. A few months later the defendant expressed a desire to marry the plaintiff, and his mother accordingly approached the plaintiff'' parents with a view to their daughter'' marriage. The defendant had told his mother that he had severed his con nexion with his first wife, and accordingly the defendant'' mother, when asked by the plaintiff'' parents as to the first marriage, assured them that the defen dant had divorced his first wife. The plaintiff'' parents, having received this assurance, consented to their daughter'' marriage. She was married the same day and she went to live with the defendant and his mother. A few months later the defendant'' mother died. The defendant continued to live with the plaintiff for about two months longer, and then, in or about April 1920, he left her and went to live with his first wife, whom, in fact, he had not divorced. The suit was filed in Septem ber 1923, more than three years after the plaintiff was deserted by the defendant, and it was found by the learned District

Judge, and his finding has not been dis puted, that during the period from April 1920 up to September 1923, the defen dant did not resume conjugal relations with the plaintiff, and did not give her any maintenance.

The learned Judge found that the de fendant deserted the plaintiff and that the marriage was brought about by the above-mentioned misrepresentation that his connexion with his first wife had been severed, and he held that the plaintiff was entitled to a decree for divorce. The High Court agreed that the plaintiff was entitled to a decree for divorce, and that part of the decree, as already stated, has not been contested before their lord ships. It appears that the defendant'' mother died in January 1920, and that about four months before she died she had given to the defendant by deed about 185 acres, which were part of the 233.38 acres mentioned in Sch. A. After her death her inheritance was divided, the defendant getting the house and the remainder of the property mentioned in Sch. A, which included 29 acres which had been given shortly after the defen dant'' marriage with the plaintiff.

On the question of partition, both the Courts in Burma held that, inasmuch as the plaintiff was entitled to a divorce on the ground of the defendant'' desertion, she was, strictly speaking, entitled to all the husband'' property, except the first wife'' interest therein ; or, stating the same proposition in another way, that the plaintiff was entitled to all the hus band'' interest in the property, which would be considerably more than the shares which the plaintiff had claimed in her plaint. The learned Judges of the High Court expressed the opinion that it was difficult to understand on what principle the plaintiff'' claim was based ; but they came to the conclusion that as she had confined her claim to the shares mentioned in the plaint and had obtained a decree in respect thereof, they saw no reason for saying that the decree was wrong or that the defendant had been prejudiced by it.

The question whether the plaintiff was entitled to all the husband'' interest in the property was argued at great length, and the attention of their lord ships was drawn to the translations of many of the Dhammathats and to many reported decisions. Their lordships do not think it necessary to refer to them in detail, because it is clear, as was admitted by the learned counsel who appeared for the plaintiff, that there is no text which imposes forfeiture of property upon a husband who deserts his wife, and that there is no reported case in which a decree for forfeiture of his pro perty has been made against a husband by reason of his desertion of his wife or one of his wives. Further, the learned Judges of the High Court stated that :

it is admitted that the Burmese law-books do not lay down any rule of partition on the divorce of the husband by one of two or more wives of equal status, and that there is no case-law on the subject. It is, therefore, necessary to decide the matter in accordance with the principle of justice, equity and good conscience, having regard to the general rules of Burmese Buddhist Law so far as these rules can be applied.

Their lordships desire to make it clear that the opinion expressed by them is confined to the particular facts of this case and the question arising in respect thereof, viz.: assuming that the defen dant deserted the plaintiff, his second wife, in April 1920, and that for more than three years he did not resume con jugal relations and gave her no main tenance, and that consequently the plaintiff was entitled to a decree for a divorce, was she entitled to the whole of the husband'' interest in the property, which was the subject-matter in the suit? The learned counsel for the ap pellant argued strenuously that on the true construction of the plaint the suit was really based on an allegation of divorce by mutual consent. Their lord ships are not able to accept that argu ment, and the case must be considered upon the basis of the findings of fact of the Courts in India. The learned Dis trict Judge began his judgment on this part of the case by saying :

The parties will have to be considered as a virgin couple.

Before his marriage with the plaintiff, the defendant had been married to another woman, who was alive at the time of the marriage with the plaintiff, and from whom he had not been divorced. The plaintiff, of course, had not been married before, and, while some indica tions are to be found in the texts to the effect that where the spouse in that position is the aggrieved party, the union may be so described in proceedings for divorce, in their lordships' opinion, it is not necessary in this case to decide the point and they must not be taken as affirming the above-mentioned proposi tion. The learned District Judge then proceeded to the statement which has already been quoted, and which for con venience may be restated, as follows :

Where a divorce is adjudged through the fault of one party, the innocent party obtains all the property, including the joint property as well as the separate property of the guilty spouse ; but, of course, the share of the head wife must be excluded.

In their lordships' opinion, this state ment is made in too wide and too general terms. In the first place, it takes no account of the difference between the position, rights and duties of the husband and those of the wife in Burmese law. It is clear that the Dhammathats recog nized the difference in many respects, which it is not necessary to mention in detail. In the second place, as has already been stated, there is no case in which a wife has obtained a decree of forfeiture of all her husband'' interest in the property on the ground of his deser tion. It is also the fact that there is no case in which a wife has claimed such a forfeiture, and even in the case before their lordships the plaintiff has not made such a claim. As already men tioned, the Dhammathats do not contain any text which provides that if the hus band deserts his wife, or one of his wives, she is entitled to the whole of her hus band'' interest in the property. In the digest of Burmese Buddhist Law ar ranged by U. Gaung, Vol. II, dealing with marriage, S. 312 (Manugye), desertion is dealt with, and some of the rights of the parties ensuing upon deser tion, such as the right to marry again, are described. If it had been the law that the husband would forfeit all his interest in the property, joint or sepa rate if he deserted his wife, or one of his wives, for three years and left her with out maintenance, it is almost inconcievable that there would not have been found in the Dhammathats a statement of the law to that effect.

The proposition which the Courts in Burma adopted as the basis of their judgment, viz. that because the defen dant deserted the plaintiff she was entitled to divorce with possession of all the husband'' interest in the pro perty, the subject-matter of the suit, is in itself a startling proposition, and if adopted would have very far-reaching effects. There is no text in the Dhammathats or in the Burmese Buddhist law books to support it, there is no case law on the subject, and the respondent'' learned counsel was not able to draw their lordships' attention to any case in which even a claim based on such a pro-position had been made.

In these circumstances, their lordships are not prepared to accept and endorse the above-mentioned proposition. This, how ever, does not dispose of the appeal, because it still remains to be considered whether the appellant-defendant has succeeded in showing sufficient reason to justify their lordships in interfering with the decree which the plaintiff in fact obtained as to her shares in the property and the profits thereof.

In deciding this question, their lordships think it is material to take into con sideration the general rules of the Burmese Buddhist law as regards the interest which the wife obtains in the husband'' property at the time of the marriage, and in the property acquired by him after the marriage, and the fact that the Dhammathats treat the division of property as part of the law of divorce, as to which there does not seem to be any serious dispute. In their opinion it is also material and important to consider the facts of this case ; as, for instance, that the marriage with the plaintiff was brought about by mis representation that the plaintiff was an entirely innocent party that, shortly stated, the facts relating to the deser tion were of an aggravated nature and unjustifiable, and that desertion, where there is a duty to comfort and support is regarded by the Burmese as a serious offence. Taking these matters into con sideration and the above-mentioned rules of the Burmese law as to the wife'' in terest in her husband'' property, their lordships are not 'prepared to say that the decree appealed from, which awarded to the plaintiff the shares in the pro perties in suit specified therein, was unreasonable or contrary to justice, equity and good conscience.

Their lordships will, therefore, humbly advise His Majesty that this appeal should be dismissed with costs.