050-NLR-NLR-V-08-SILVA-v.-SILVA-et-al.pdf
( 280 )
1006.SILVA v. SILVA et al.
July IB.
-—D. C.t Colombo, C 20,884.
Decree for judicial separation in suit for divorce—Necessity of framing issueras to minor remedy—Hiisband's liability for costs in any event.
There is no objection to..4 decree of judicial separation being enteredin a suit brought by a person claiming a divorce a vinculo matrimonii,provided proper issues are framed, and decided, as to the grounds onwhich the minor remedy may be decreed.,
In an action for divorce a vinculo matrimonii or a mensa et thorothe husband, besides being generally liable to pay his own costs, is also,as a general rule, whether the wife be successful or not, liable to payhis wife's costs, unless she has separate property of her own of sufficientvalue to enable her to pay the expenses of the proceeding.
fj^HE facts sufficiently appear in the judgment.
H. J. C. Pereira, for first defendant, appellant.
E. W. Jayewardene, for plaintiff, respondent.
Cur. adv. vult.
18th July, 1905. Pereira, J.—
4
In this case the plaintiff, who is the wife of the first defendant,charges him with adultery with the second defendant and withcruelty, and claims, as against him, a divorce a vinculo matrimonii.Two issues were framed: (1) Between thew 25th September and3rd October, 1904, did the first defendant commit adultery withthe second defendant? And (2) What alimony, if any, io theplaintiff entitled to claim ? After evidence had. been led by bothparties the District Judge held that the first 'defendant had notcommitted adultery with the second defendant, but that the
( 281 )
first defendant was guilty of cruelty towards the plaintiff,and allowed the plaintiff to make an application for a judicialseparation. That was done, and the first defendant’s counsel P***“**u«f •appeared to show cause. The plaintiff’s counsel cited a case fromVanderatraaten’s Reports (p. ISO) in support of his appplication,and the District Judge, having heard the first defendant’s coun-sel, -eventually allowed the application and ordered a judicialseparation. The case cited from Vanderstraaten’s Reports,asstuning that it is applicable to matrimonial actions under theCivil Procedure Code, does not support the plaintiff’s contention.
In that case all proceedings were held to be erroneous, andthe, judgment was set aside and the case remitted for a newtrial. At the argumefil in appeal the appellant’s counsel citedsection 601 of the Civil Procedure Code, and submitted thatit showed that in an action for dissolution of marriage, whenthe Court was not satisfied that the plaintiff’s case was provedthe order to be made by the Court was one dismissing theplaint. That section has been borrowed, as indeed many othersections of chapter 42 of our'Code have beep, almost verbatimfrom the English Act 20 and 21 Vic., ch- 85. It is nearly in thesame terms as section 29 of that Act; and, therefore, in con-sidering the point raised,English authorities might well be
consulted. The latest case that may be cited as throwing lighton the subject is that of Otway v. Otway (L. JR., 3. and D. 14-1).
There, both husband and wife had presented cross petitionsfor dissolution of the marriage. Both were found guilty ofadultery, and the husband was found guilty of cruelty also of anaggravated character. The Judge refused to decree a dissolutionof marriage, but granted to the wife a decree for judicial separation.
In appeal the order for judicial separation was dealt with on itsown merits and discharged, the reason being that the fact thatthe wife was guilty of adultery disentitled her to relief in theshape of judicial separation. There was no disapproval, however,pt the procedure adopted of converting a proceeding for dissolu-tion of marriage into one for judicial separation. I think, there-fore, that the course adopted by the District Judge is permissiblein a case like this; but an issue should be framed and the .defendant should be given every opportunity of further examiningthe plaintiff’s witnesses in view of such issue, and calling furtherevidence himself. In the present case the District Judgehaving held that the evidence was insufficient • to support a. decree1* for dissolution of marriage, adjourned the entering upof final judgment in order to enable the plaintiff to makeapplication for a judicial separation, if so advised. Thereupon
( 282 )
J9$s. the plaintiff moved for a notice on the first defendant to showJvly It. cause whya decreegranting ajudicial separation should nob
Pmutti, j. be entered. The first defendant showed cause—that is, I takeit—againsta decreeforjudicialseparation being entered in
the case as it then stood. His counsel submitted that, hisclient had not treated the case so far as one for a separation,and he, infact, callednofurtherevidence in the case. There is
nothing toshow thattheCourtwas prepared to enter upon a
regular trial of an issue to be framed as to cruelty. Anyway, itis possible that there was some misapprehension, and I think:that the case should go back for the framing and trial of such anissue as that indicated above. The plaintiff will, subject to theobservations I shall make presently, be entitled to her costs of' allproceedings in both Courts, whatever may be the result of theaction, unless it is shown that she has separate property ofher own and can afford to meet the costs of this litigation – out ofthat property. The appellant’s counsel questioned this right ofthe plaintiff to costs. I think the English rule should be followed,and I shall lay it .down as briefly as possible. The rule is that thehusband, besides being generally liable to pay his own costs, isalso, as a general rule, whether the wife be successful or not, andwhether she be petitioner or respondent, liable to pay his wife’scosts taxed as between party and party, incurred by her up to thetime of the case being set ‘down for trial, and to pay them whenit is so set down; and he is also liable to pay into Court, or givesecurity for, an amount fixed by the Begistrar as sufficient in hisjudgment to cover the wife’s costs in connection with the hearingof the case. The reason for this liability, it may be observed, isthat under the old law “ the marriage gave all the propertyto the husband, and the wife had no other means of obtainingjustice ” (see Beevor v. Beevor, 3 Philim. 261 ; see also Miller v.Miller, 2 P. and D. 13).
The order appealed from must, I think, be set aside and thecase sent back for the framing and trial of an issue on thequestion of the plaintiff’s right to a judicial separation on theground of cruelty. The District Judge will make order for costsin accordance with the rule laid down above. The order infavour of the second defendant will stand.
Layard, C.J.—I agree.
♦