MAUNG PO NYUN Vs. MA SAW TIN

JUDGEMENT

(1.) THIS is an appeal by Maung Po Nyun, who was the defendant in the suit, against a decree 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 December 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 Schedules A and B of the plaint. She alleged that she was entitled to one-third of the properties in Schedule A and to one-sixth of the profits in Schedule 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's 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 Schedule A and one-sixth of the profits specified in Schedule B. The learned Counsel for the appellant-defendant did not contest the plaintiff's right to the one-sixth of the profits in Schedule B, but ha argued that the plaintiff was entitled merely to one-sixth of the property comprised in Sob. 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 principle 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.

(2.) 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.

(3.) 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's parents with a view to their daughter's marriage. The defendant had told his mother that he had severed his connexion with his first wife, and accordingly the defendant's mother, when asked by the plaintiff's parents as to the first marriage, assured them that the defendant had divorced his first wife. The plaintiff's parents, having received this assurance, consented to their daughter's marriage. She was married the same day and she went to live with the defendant and his mother. A few months later the defendant's 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 September 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 hag not been disputed, that during the period from April 1920 up to September 1923, the defendant did not resume conjugal relations with the plaintiff, and did not give her any maintenance.