£1000 DAMAGES CLAIMED

Evening Post, Volume CIV, Issue 49, 26 August 1922, Page 11

£1000 DAMAGES CLAIMED

ALLEGED MALICIOUS PROv CEEDINGS

ACTION UNDER A WRIT OF HABEAS CORPUS.

.Abraham Wsttey Mahomed Salaman, a Hindu merchant, now of Auckland, but formerly of Wellington, and1 his European wife, Marjoria Salamtn, have been parties to several actions in the Supreme Court at Wellington and Auckland, and aim the Court of Appeal, sine* their marriage, in December, 1915, and yesterday they were parties to an unusual action heard by Mr. Justice: Salmond and a jury of twelve. Hn. Salomon claimed £1000 damaged from Salainan for alleged malicious proceedings token by him. Mr. E. G. Jellicoe appeared for th« plaintiff, and Mr. M. Myers for the defence. Mr: A. B. Johnson was foreman of the jury. . , The story of the case goes back some time. The marriage wae not a happy one* and the parties, shortly after the birth of a female child;, agreed to separate,'■ Salaman going to Auckland, and agreeing1, to make provision -, far. tho maintenance of' his wife and child. .In August, 1919, Salaman commenced divorce proceedings against his wife) an the ground of her misconduct with another man'in Wellington, but the notion was not brought on. till; October, 1921, when a decree nisi was pronounced in his favour in the Auckland Supreme Court. No order was then made as to the custody of the child, which remained in the keeping of it* mother. Salaeaan, not long afterwards, came to Wellington, and endeavoured to take the child away, but was not successful, and toward) the end of laet year 'instituted,'proceedings, under the pro vi*ira)« of the Habeas Corpus Act toutcure the custody of thp child, His Honourf Mr; Justice Hoskinjf granted: hia application in April of. this year, on the ground that the intereito.'of the child would be best served w«a»i it given into the ; father's custody. . The child was not delivered up to',SalMaan, and, in pursuance of the power* oonferred by the order, Salainan, through We solicitors, had iasued a writ;W liabeM corpus against Mrs.' Salamani,,1 calling upon her to appear, and giviv up i the child.-.: Mrs. -^Salaman fai^ to «raply with the writ ofe habea« corooi, an#, ;> «», a. result of'her failuTe, a 'wTrt o*:;.a^i*o»ment vras issued against herein:W«Uiiiiijt' ton for oontempt of Cburt.: Mr*. ,'B*U-'. man left Wellington th« oaroe dayj'tor'Auckland with tW child, an^took<'h%r to Salamao's house, ; remaining : [taismh house with the girl till next monving:j''-i Meanwhile the-writ of attachni»nt j wa»' sent to Auckland, and on the morning oft 12th May Salaman instructed:-1 the sheriff's officers who came to his house with the authority of the writ to plttft Mrs. Salaman under arrest: Accordingly she was brought back to Wellington under escort, and was lodged in the Terrace Gaol and at the Point Halswell Reformatory until the afternoon of 15th May, when she ■ was called before the Chief Justice, Sir Robert Stout, who dismissed the charges-laid against her, awarding her costs. ■. ',' ■, The claim was based upon an'allegation that Salaman'* action in procuring the arrest of plaintiff was malicious and without proper and reasonable cause. Mr. Jellicoe opened the case at length, but before the plaintiff was called to the witness-box, Mr. ■ Myers asked leave to amend his pleadings in defence by the addition of a clause to the effect that as on all material dates mentioned' in the statement.of claim the parties were husband and wife (the decree Absolute not Having been then pronounced) the action was untenable. . / j.: , His Honour expressed: surprise that that defence'had not been advanced in the first place, since upon the facts it appeared to him to be an obvious defence.

; Mr. Jellicoe objected to the amendment and asked leave to continue.his case. As a plaintiff may not be nonsuited during the progress of an action without his consent, Mr. Myers did not prese for a non-suit at that stage. Plaintiff, in the course of her evidence, said that she did not.wish to recover a penny of damages if she could gain po» session of her child again. '

At the conclusion of the evidence in support of the claim Mr. Myers again moved for a non-suit, citing a ruling of the English High Court of Appeal, which, he maintained, bore directly upon the case and which laid down that a husband might not sue a wife, or vice Vena, for the recovery of moneys-in a civil action, and the position in the present case was that though Solaman had been , granted a decree nisi'some time iprior to the' dates mentioned in plaintiff's statement of claim the-decree nisi was not obtained by him till eight days after the issue of the writ in the .present .proceedings. .■;•■. Mr. Jellicoe submitted that it was not the decree absolute alone which constituted the divorce. The moment tie decree nisi was granted,1 he-submitted, the marriage was technically at an end, the divorce being only one act of the Court which was automatically completed by the granting of the decree absolute. His Honour upheld Mr. Myers' contention and briefly explained the law, upon the point to the jury. The plaintiff had been named. in her statement of claim as the divorced wife of the defendant, but actually she was not, since the decree absolute had not then matured, and. the ruling that husband and wife could not sue each other for damages was clearly laid down. ■ ■ ■ .■• i His Honour added that he considered the whole of the litigation between the parties to have been most, regrettable, and entered a non-snit against plaintiff without costs. ..■..'.