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NLR - Vol.61- Page No - 25

NLR - Vol.61, Page No - 25

[IN THE PRIVY COUNCIL]

1959 Present : Lord Reid, Lord Tucker, Lord Somervell of Harrow,
Lord .Denning and Mr. L. M. D. de Silva

C. V. UDALAGAMA, Appellant, and IRANGANIE BOANGE,
Respondent

Privy Council Appeal No. 14 of 1958
S. C. 444--D.C Kegalle, 7,813

Breach of promise of marriage-Action for recovery of damage Promise in writing-Relevancyoforalpromisetomarry-
.Marriage Registration Ordinance (Ca,. 95), s.19.

By section 19 of the Marriage Registration Ordinance-

". ...no action shall lie for the recovery of damages for breach of promise of marriage,unlesssuchpromiseofmarriage
shall have been made in writing. "

Held, that documentary evidence whichdoesnotinexpressorotherunequivocaltermscontainpromisetomarryis
insufficient to prove a promise in writing even though it may afford evidence ofanoralpromisetomarry.Thewriting
required to satisfy the Ordinance must contain an express promise to marry or confirmapreviousoralpromisetomarry,
i.e., admit the making of the promise and evince continuing willingness to be bound by it.

Jayasinghe. Perera (1903) 9 N. L. R. 62, overruled.

APPEAL from a judgment of the Supreme Court reported in 57 N. L. R. 385.

Sir Frank Soakice, Q.C., with Ralph Miller , for the defendant-appellant,.

No appearance for the plaintiff-respondent.

July 29, 1959. [Delivered by LORD TUCKER]-

In this case the respondent sued the appellant for damages for breach of promise of marriage. A good deal oforalevidence,
conflicting on many points, and some documentary evidence was placed before the trial Judge who held that no written ororal
promise to marry was established on the evidence before him. The greaterpartoftheevidencerelatedtothequestion
whether there was an oral promise to marry. For reasons which appear later it will be seen that this evidence wasimmaterial
to a decision of this case and should therefore have been excluded.

On appeal the Supreme Court held that under the earlier decisions of that Court an "action for damages lies if, inaletter
addressed by the defendant to the plaintiff, there is confirmation or at least an unqualified admission of asubsistingand
binding oral promise of marriage ". It held that the necessary elements existed and setting aside the order ofthedistrict
Judge, entered judgment for the respondent. The question is whether this ruling was correct.

It is convenient at this stage to state what in their Lordships' opinion is the law of Ceylonrelatingtothematter.An
action does not lie in Ceylon for every breach of a promise to marry. A restriction is imposed by section 19 of theMarriage
Registration Ordinance (Chapter 95.- Legislative- Enactments of Ceylon, Vol. III, p: 122), which,. after making
certain provision which has no bearing on cases of breach of promise, enacts as its final provision
"no action shall lie for the recovery of damages for breach of promise of marriage, unless suchpromiseofmarriageshall
have been made in writing. "
"There is nothing further in the Ordinance or in any other Statute which has a bearing on the point.

Their Lordships are of opinion that the policy of the Legislature has i been to limit the cases in whichanactioncanbe
brought to those in f which the promise itself is in writing. It may be contained in one ortmoredocuments.Documentary
evidence which does not in express or other unequivocal terms contain a promise to marry is insufficient even thoughitmay
afford evidence of an oral promise to marry.

Some confusion seems to have arisen in this case with regard to the meaning of such words as "evidencedinwriting"and"
confirmation ".The distinction which must always be borne in mind is between writing C which contains thepromisetomarry
and writing which may afford corroboration of a previous oral promise. The latter, which is sometimesdescribedaswriting
"which evidences a previous oral promise" is insufficient to support an action for breach of promise.Thewritingrequired
to satisfy the Ordinance must contain an express promise to marry or confirm a previous oral promise to marry,i.e..,admit
the making of the promise and evince continuing willingness to be bound by it.

An illustration of a writing which, while not containing in itself a promise to marry, mightbeputforwardasaffording
evidence in writing of an oral promise to marry is to be found in the case of a writing which says,"IassureyouIwill
carry out the promise I made last month ". On such a writing the question at once arises, was it a promise to marry?ora
promise to lend money? or some other promise. The writing by itself only establishes that a promisewasmade.Ifitwere
possible to establish by oral evidence that the "promise madelastmonth"wasapromisetomarry,theconflictsand
uncertainties which may arise would be almost as much, if not quite as much, as in a case resting onoraltestimonyalone.
In answer to oral evidence that it was a promise to marry, a contesting defendant may say itwasapromiseotherthana
promise to marry. Their Lordships are of the view that such a writing is insufficient to satisfy the statute.

The decision in Jayasinghe v. Perera 1 has been questioned in sub- sequent cases. Doubts have been expressedastowhether
the writing I relied on amounted merely to an admission in writing of a previous oral promise orwasarepetitionofthe
promise. If the word repetition imports an express promise to be bound by the previous oral promise thiswillsuffice,but
their Lordships are unable to find this in the letter in question in that case which, in answer to a requestforawritten
promise of marriage, said, " I am not agreeable to what papa says for this reason that isifItrustdarlingshouldnot
darling trust me If they have no faith in my word I cannot help it. If they don't believe my word I am not to blame".This
is in effect saying, "You must rest content with such remedy as is offered you by anoralpromise',andisanexpress
refusal to give what the Ordinance requires. Their Lordships are accordingly of opinion that the decision cannot be upheld.

Extrinsic evidence is only admissible where such evidence is permissible on generalgrounds,e.g.,wherethesurrounding
circumstances may explain some ambiguity or identify some person referred to in the writing.

The basis of the judgment of the Supreme Court is to be found in the following passage on page 361 of the Record-

"Does P. 1, read in conjunction with the letters D. 7 and D. 8, constitute a 'written promise'withinthemeaningofthe
proviso to section 19 (3)? The Ordinance does not declare that oral promisesofmarriagearenullandvoid itmerely
renders them unenforceable unless they be evidenced in writing. The object is to avoid the risk ofvexatiousactionsbased
on perjured testimony. The earlier authorities of this Court were all discussed during the argument anditissettledlaw
that an action for damages lies if, in a letter addressed by the defendant to the plaintiff, there is either confirmationor
atleast an unqualified admission of a subsisting and binding oral promise of manage. This is theeffectofJayastngne'v.
Pereral, Missi 1 Nona v. Arnolis 2 and Karunawathie v. Wimalasuriya 3. The letterP. 1completelysatisfiesthisminimum
test. "

Their Lordships have already indicated that the test referred to in this passage is notentirelysatisfactoryandhasin
fact given rise to differences of interpretation in its application.

As stated in the judgment of the Supreme Court, "The parties are well-educated Kandyan gentlefolk, and each of themis'the
child of parents who hold conservative ideas on the subject of marriage ". Negotiations foramarriagebetweenthemtook
place in the manner customary to such persons and various things had been done including the fixing of a dowrytobegiven
by the plaintiff's father. If a marriage had gone through the next step would havebeenabetrothalatwhichacertain
ceremony would have been performed. This did not take place. It will appearfromwhatisstatedlaterthatitisnot
necessary to examine the reasons for the failure. The parties saw each other and someletterspassedbetweenthem.Their
Lordships will now examine the documentary evidence to ascertain whether a promise to marry can be said tobecontainedin
it. Three letters were relied on, two from the respondent to the appellant and one from the appellant to the respondent.

These are the documents referred to in the judgment of the Supreme Court as D. 7, D. 8 and P. I. The first isthefollowing
:-

Boange Walawwa,
Kadugannawa.
18.12.50.

My darling Teddy,

I asked Mummy if I may write to you, and though she did not say no, she does not like me corresponding fearing thatImight
fall into trouble. But I thought it is my duty to write to you, and keep to my promise inspiteof any obstacle standing inmy
way.

The other day I was anxiously waiting to meet you before leaving, but I had to come away with a heavy heart,asDaddycame
early. I am still feeling wretched without you. The evenings are unbearable. When I think of you darling, I wish I couldfly
back to you. I don't f know how I will stay here all alone till the 7th.

I would have liked to spend even the whole holiday there, but I have " to please so many, with the result thatIamunable
to do what I want. I hope you understand me, my darling, and will not get angry with me, for leaving you,inspiteofyou
worrying me so much to stay behind. To spend even a minute with you is a great joy to me, though you seemtothinkthatI
was impatiently waiting to come home.
I am everyday to do anything for you, but unfortunately it is my fate that I am forbidden to do all I canforyou,whomI
love more than anyone in this world. I know you always think that I don't care for youbecause I say can't foranythingat
all. Please don't think that I have to love for you, as I will truthfully tell you that I really love you from,.thevery
bottom of my heart.

-came here a few minutes after we came home. He was very good and did not try any of his pranksonme.Pleasedon'ttell
anything to because I don't want the others to say that I made up false stories about an innocent man. Iamsure,nowyou
have room to think that I too encouraged himthat is why I don't want you to speak to about this. I am not boasting, butit
is the actual fact. I have never had anything to do with another person, and it has always been my one idea to love onlyone
Take my word I am not a person who is easily tempted. I have always aimed at having a pure characterandyoucanbesure
that in rain or sunshine I will standby you till the end of my life. It was my ambitiontofindamantoowithapure
character and i have found it in you. Therefore don't fear. I will always be faithful to you, mydarling.Ihopeyouare
going for a change. If you are going to N'Eliya please be careful the way youdrivethecar.Can'tyougetsomeoneto
accompany you, without going alone 1 I think I had better stop writing as I am getting late for the post.Iwillwriteto
you again on Thursday.

With much love and kisses..
From
Yours forever,
Girlie.

Certain initials irrelevant for the purposes of this appeal appear in the sp-aces left blank.

The next letter is :-

Boange Walauwa.
Kadugannawa.
19.12.50.

My darling Teddy,

I hope my letter has reached you safely. Please be careful with my letters because there are sillypeoplewaitingtomake
unnecessary fuss.
Where did you all go yesterday 1 I heard that you were going home last evening.
A little while ago we returned after a days outing in Kandy. I had a long jaw with Aunt about the girl whom-andsisterwent
to see at Kurunegala. As for me I was anxiously waiting to come back soon, so that I may keep to my promise.
Have you decided about your holiday ? Darling, you must go somewhere and have a good time. Again I amtellingyou,ifyou
are going to N'Eliya please be careful the way you drive your car.
Though I am here my thoughts are with you my love. Day and night, I think of nothing else but you my darling.Thehouseis
still been built. My one work is telling Mummy how unfair they are in delaying like this. Shetooagreeswithme,butI
haven't got the courage to go and tell Daddy. He doesn't understand our position and is ready togetupsetfortheleast
thing., That is why I am telling you that I am placed in such a difficult position where I have to please so many.

Only I know what a lot of mental agony I have to undergo. In spite- of everything InevershowitbecauseIdon'twish
others to say that I can't get on in life.

I am also very anxious to know about your arrangements etc. there- fore please write to me on Saturday. I can send one ofmy
brothers to the post on that day. So please don't fail to let me know all about yourself. I am taking a great risk inasking
you to write to me, but I hope everything will be O. K. Another thing, if you are going anywhere or not pleaseletmeknow
your holiday address.

I am sending you the Observer Crossword puzzle. If it is possible please do it and send it to me.

I have sat up till late today because I wanted to write to you some- how, when no one isabouttheplace.It'spastone
o'clock and I am feeling sleepy too, so I think I had better conclude. Now please don't disappoint me.

With much love and kisses.
From
Yours forever,
Girlie.

The third letter, from appellant to respondent, is :

Kegalle,
21st December, 1950.

My darling dearest Girlie,

I received both your letters safe & sound. It was indeed sweet of you to have written tomeexactlyaspromised.Asyou
wanted to know my arrangements for theholiday-wellheretheyare.TomorrowmorningIwillbegoingtoKandyand
Katugastota. As a matter of fact as the Post Mark will show you, I am posting this letter from Kandy. I will try topickup
Shelly and failing I will go up alone to Nuwara Eliya. If I go up alone I will stay at the Grand Hotel, Nuwara Eliya.Other-
wise I cannot definitely tell you where I will stay. I shall send you a Christmas Card from Nuwara Eliya to reach you onthe
25th Morning. Thank you Darling {or the anxiety you have expressed regarding my driving up. I shall indeed try to becareful
as possible. Somebody has given you some wrong information, since I havenotleftKegallesinceyouleftonthe16th
instant.

I am glad to hear that you have been getting out a bit. I think Darling if you can manage it, you too, should take aholiday
somewhere, why not induce your Daddy to go somewhere for a few days. You have been working very hard and Ithinkyoufully
well deserve a good holiday.

Girlie dear, I have been missing you very badly these days. Indeed the evenings are very dull and boring withoutyouandI
am waiting to go somewhere for a little rest. I am much thankful to you for the kind thoughts you have been having aboutme.
Girlie I don't think I need repeat all what you have written to me, because I feel just the same way as youhaveexpressed.
I can assure you that all the expectations and the dreams you have of your future will not be in vain,youcanconfidently
hope. The sooner it is, the better, I think. So that you should, if you possibly can, have a chat with yourDaddyandtell
him that this unnecessary delay is by no means good to either. It has beenhangingfiresinceJunebutIfindnothing
appears to have been done. It is c no use delaying now. I can tell your Daddy aboutit,butIdon'twanttohurtyour
feelings, it will be better if you could put it to him.

' is yet down with measles and it looks as if Sister and them will not be going anywhere for the holidays.

Darling I hope you are keeping good health. Please be careful of yourself and don't fall ill like last time what happened.I
suppose the mornings are bitterly cold there.

Daya and I just returned from seeing " The Prince and the Pauper ". It was a nice picture with afinestoryofhowHenry
VIII's son Edward for a lark exchanged place with a pauper's son and it becameaseriousmatteranditwaswithgreat
difficulty that the Prince managed to convince the people that he was the real Prince. I wonder whetheryouhaveseenany
picture since you left on the 16th. Yes, that day, I thought you might still be there, when I came after the pictures andit
was with great sorrow that I learnt from Daya that you had left. Darling my thoughts are always of you everydayandIam
most anxiously waiting till the 7th of next month. So please on no account must you Keep away from coming on the 7th.

Don't worry I Will not tell-a word of what you have told me, nor will I tell anyone a word of it. ButDarlingyoumustbe
extremely careful of yourself and don't allow people to treat you in the same manner that you were treated whenyouwerea
small girl of 8 or 9 years. Show them it a little reserve ness on your part and I am sure they will understand.

As regards the Puzzle I don't think you are in a hurry. I think the closing date is 16th January. I willhaveitmadeand
give it to you when you come on the 7th.

Well, Girlie my sweetheart, what do you want from Nuwara Eliya- don't tell me you want the lake, or the park. I alwaysthink
how wonderful it would have been if you could have accompanied me on this holiday-just you and mewithallthecaresand
worries of this world forgotten for ten glorious days!

L. B. and Nanda were here last Friday evening. They too don't intend going anywhere. L. B.itseemsisgoingtotakea
course of medicine at Galagedera and I suppose Nanda too will be there. Daya told me today that Nanda'slittledaughteris
also down with measles- that means they too will have to stick at Yatiyantota.

Well Darling I think I better stop, now it is nearly 11.30 p.m. In the Christmas Card I shall give you my addressinNuwara
Eliya and the date of my last day of stay there. Write to me then if you can.

Cheerio my sweetheart.
With love,
Teddy.

Neither of the Courts in Ceylon has been able to find in the correspondence above a promise to marry. Their Lordships arein
the same position. The letters on the construction most favourable to the plaintiff do no more than assumethatamarriage
will take place as a result of an oral promise. Whether such promise was conditional or unconditional,andiftheformer,
whether the condition was ever fulfilled, is not stated. Extrinsic evidence being inadmissible to supply the deficienciesin
the correspondence the action necessarily failed.

For the reasons which they have given their Lordships will humblyadviseHerMajestythattheappealbeallowed,the
judgment and decree of the Supreme Court be set aside and the decree of the District Court restored. The respondent mustpay
the costs of this appeal and of the appeal to the Supreme Court.

Appeal allowed.





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