120-NLR-NLR-V-57-WIJESINGHE-Appellant-and-WIJESINGHE-Respondent.pdf
11954Present: Rose, C.J., and Sansoni, J.WIJESINGHE, Appellant, and WLJ ESIXGHE,Respondent
S. C. 390—D. C. Colombo, 2,027
Jlusband and wife—Judicial separation—Cruelty—Proof—Right, of plaintiff to choose- between separation nud divorce.
Cruelty, as a ground for a decree of judicial separation, need not bo physical.;moral cruelty will sufiice. To entitle a wife to a decreo on this ground it issuflicient for her to show that her husband has been guilty of conduct which hasimpaired her health and made it intolerable for her to continue to live with him.
I>ecree for judicial separation may be entered although the party seeking itis entitled on the evidence to ask for the greater relief of a divorce. ' ’
1 (191 J) GO Times Law Report's 402.
.-^^-PPEAL from a judgment of the District Court-, Colombo
' Sir.Lolita Jtajapahse, Q.C., with Eric Labrooy and G. D. C. Weera-singhe, for the defendant appellant. ■
J. N. Fernandopullc, with E. B. Vanniiamby, for the plaintiffrespondent. ''
Cur adv. vult.
July.23, 1954. Saxsoxi, J.—
This is an appeal by a husband against a judgment which granted:his wife a decree of judicial separation and dismissed his claim in recon-vention for a divorce. The grounds upon which the plaintiff-respondentbased her claim were that for some time past the defendant-appellanthad treated her with harshness and cruelty which made her life intolerableand caused her to fear that continuing to live with liim might endangei-her life. The defendant-appellant in his answer pleaded that his wife, atthe instigation of her mother and brothers, without any cause whatsoever,left his house on 10th December, 194S, as she had done previously on 18thMay, 1947. He further pleaded that in spite of a reconciliation effectedafter that earlier departure from his home she occupied a separate roomand refused to talk to him or to attend to Ids needs, and was thus guiltyof cruelty. He claimed a divorce on the ground of malicious desertionand cruelty.
The parties were married in 1931 when the wife was 16 and thehusband 30 years old. The eldest child, a girl, was born in 1932 ; a boywas born in 1933 and another girl in 1940. Jvot long after the marriagethe wife took employment as a subpostmistress on a salary of Rs. 125-Out of this sum her husband admittedly took Rs. 35 to cover part of thehouse rent on the ground that their house had to be bigger than wouldotherwise have been necessary ; she also had to pay her brother Rs. 25for assisting her. The learned Judge has accepted the wife’s evidencethat her husband took her entire salary from her every month.
In 1943, when the wife’s mother and brothers were also living with thiscouple, a brother named Bcnnet got married and there arose some dis-agreement over that. The wife says it was because her husband dis-approved of Rennet getting engaged against his wishes ; the husband says-that what he disapproved of was their extravagant plans for the wedding;reception. He admits, however, that he was displeased with his wifebecause she did not comply with his wishes. The next incident was thepurchase of a car by Bonnet and the husband. Bcnnet apparentlywanted his share of the purchase 11101103’ back, and the husband got-annoj’cd with the wife when she suggested to him that he should complywith Bennct’s request.' ''
In 1945, their eldest daughter attained puberty and there was an argu-ment as to the observance of certain ceremonies in that connection-in the course of a quarrel the husband admittedly assaulted the wife in.thc presence of the wife’s mother. After this incident the husband asketL
his mother-in-law to leave his house, wliich she did. She never againlived with her daughter and son-in-law. The wife complains thatafter this her husband became indifferent to her ; he failed to provideher with sufficient money for running the house ; she also had to renderan account to him of all monies she had received from him. It was atthis time that she says her health began to be affected by this treatment.
Early in 1947 the car was stolen when the husband was in Kandy.The wife sent him a telegram informing him of the theft, but when hereturned home he found fault with her for having gone to her brothersbefore she went to the Police. According to -the wife she wasalways being blamed by her husband for the loss of the oar, and he totallyneglected her and failed to maintain her. She also says he asked her toleave the house. I might here draw attention to the husband’s admis-sion that he did ask her to leave the house, though he has not specified atwhat stage of their dissensions he made the request-. At- any rate thewife says that she could not bear to live with her husband any longer and .she according^' left the house on 17th May, 1947, when he was away at -Galle. She informed the Police that she was leaving on account of ill-treatment and that she was going to live with her brother. She alsoleft behind a letter to her husband in which she complained, “ I am com-pelled to take this action after years of agony with you. I bore up yourmean and callous treatment for the great love I have for my children ”.She asks him not to expect her to return to him unless lie was prepared tocompletely reform himself.
In September 1947, through the good offices of a Mr. Seneviratne theparties were reconciled, but not before the husband laid down certainconditions which he wanted his wife to observe. The husband saicl inevidence :—“ The condition of reconciliation was that she should not goout of the house without permission, and not talk to her mother andbrother -without permission ”. Apparently the wife was persuaded byMr. Seneviratne to agree to these conditions. It seems to me a shockingtiling that a husband should require his wife to observe rules such as thesewhich were calculated to /make her a prisoner. He also admits thathe listened to outsiders who told him that his wife was not complying -withthese conditions, and also questioned the children to ascertain whethertheir mother was breaking his commands. Their children went- the lengthof obliterating the wheel marks left on the carriage way of the residence,no doubt because they feared the sequel to the discovery of'the wheelmarks by their father. The husband complained that within a monthof the reconciliation his wife spoke to her mother when the latter visited arelative who lived in. the neighbourhood, accompanied her mother to. hospital to visit a sick cousin, and went to her uncle’s house on the pretextof borrowing a sarce. I do not think it is relevant to inquire whether thewife, did any of these things or not. Even if she did, I cannot believethat a reasonable husband would have resented such conduct. Thewife complains that there were quarrels over alleged breaches of hiscommands.in the course of which she was assaulted. The learned Judgehas believed her evidence that one such assault took place in April 19^8.
The climax came on the 10th December, 19IS, •when a young man cameto the house to return a music book, which the wife had lent him. She•says it was her daughter’s book, and she had lent it to the j'oung manwhen lie came to borrow it in her daughter’s absence from the house.The husband apparently objected to this young man’s arrival to returnthe book ; he admits he scolded his wife and attempted to slap her. Thelearned Judge was satisfied that he actually assaulted her, and abused herin filthy language and even coupled her name with that of the youngman. The wife left the house the next day, having complained to thePolice that she was assaulted and abused on the 10th night. It is unfortu-nate that in this complaint she also said of her husband, “ As far as Ibelieve he lias other attachments ”. No such allegation has been madeby her since, and it should never have been made. The learned Judgeaccepts the evidence of the Inspector of Police who says he observedredness on the wife’s face when she was making her complaint. He hasalso accepted the evidence of a neighbour who said he had heard the hus-band scold his wife in obscene language, and seen the wife crying on thoseoccasions. The learned Judge formed the opinion that the husbandoccasionally assaulted his wife, and that he was “ a fiery tempered person,very assertive and dominating in his house ” who even displayed his badtemper and offensive manner in the witness-box. On the other hand thewife struck the learned Judge as “ a frail and timid woman ” who wouldnot have ventured to raise her voice in opposition to her husband. Thelearned Judge also formed the view that the husband was fonder of hismoney than of his wife and children. However, what seem to haveweighed most with the learned Judge when he granted the wife’s appli-cation were ,s the continual bickerings between the husband and wife inall of which the husband was the aggressive part3-. He was abusive andinsulting. He restricted his wife’s freedom of movement ”. The learnedJudge also referred to the fact that the husband had ordered his wife toleave the house, and made use of trivial incidents to find fault with her.He lias not dealt in his judgment with the husband’s complaint thatthe wife would not speak to him or associate with him for two or threemonths at- a time. But I think the wife’s attitude of non-co-operation,if sho adopted it at times, was a weapon of defence which she used tocounter the aggressiveness of her husband. There is evciy indication inthe judgment under appeal that the learned Judge took the view that thehusband was alwaj's the aggressor, and that the wife was always on thedefensive.
This is eminently a case where the findings of fact ma.de b>- tho learnedJudgo should be given full weight. The following passage in the judg-ment of dc Villiers J.A. in Cheek v. Cheek 1 is in point :— “ Now it hasvcr3" often been laid down in this Court, that in coming to a conclusion asto tho credibilit3' of witnesses, a Court of Appoal must of nccessitj- begreatl>' influenced by the opinion of the learned trial Judgo. He seesthe demeanour of tho witnesses and can estimate their intelligence,position and character, in a waj* not- open to the Courts who deal with thelater stages of the case.” The principle thus laid down applies with
J (1935) A. D. 330.
•especial force in matrimonial disputes, for as statc-d by Innes, C.J., inOberholizer’s case'1, “ these matrimonial cases throw a great deal of res-ponsibility upon a judge of first instance, with the exercise of which weshould be slow to interfere. Ho is able not only to estimate the credibi-lity of the parties, but to judge-of their temperament and character:And we, who havo not had the advantage of seeing and hearing them,must be careful not to interfere, unloss we are certain, on firm grounds,that ho is wrong ”.''
The learned trial Judge in this case has formed very dofinite convictionsabout the parties in this case. There are no particular foatuies in thewife's evidence which can be regarded as unsatisfactory, nor are theresuch improbabilities in her story such as might outweigh the effect pro-duced by her demeanour on the Judgo and induce a Court of Appeal toreverse his opinion of hor. It follows that unless tho learned Judgemisdirected himself on the law his judgment should stand.
Xow Sir Lalita Rajapakse who appeared for the husband in thisappeal urged that since the learned Judge has held that tho assaultsthemselves were not of such a nature as to endanger the wife’s life therewas no justification for a decree of judicial separation. But it is clear thatthe learned Judge has formed the definite opinion that the husband hasbeen guilt3r of conduct which has impaired his wife’s health and made itintolerable for her to continue to live with him. He has cited in supportof his finding on the law the following passago from the judgment of.'Solomon, J., in Wentzel v. Wentsel – :—“ When tho ground relied on wascruelty tho test is, Has it not been proved that by reason of the defen-dant’s misconduct it has become intolerable for the plaintiff to live withhim ? Ho general rule can be laid down and much will depend upon thephysical and mental condition of the wife as well as upon her characterand disposition ”. Cruelty neod not be physical; moral cruelty willsuffice. It is clear law now that “ when once a spouse by unlawful con-duct makes it dangerous or intolerable for the other spouse to continuocohabitation, the latter is entitled to a decreo of judicial separation ”—see Armsbury v. Armsbury 3. do Villiers J.A. in Cheek v. Cheek (supra)stressed tho necessity for tho plaintiff not only to prove that the spousesfind it intolerable to livo together but also that such a condition of thingswas caused and created by misconduct on tho defendant's part. Anisolated incident is not enough, especially if the parties continue to livofor a long time thereafter. There is no doubt that in this case the guiltyparty is the husband.
The next submission mado on behalf of the husband was that, in viewof the plaintiff’s statement in evidenco that under no circumstances willshe go back to the defendant, tho marriage is now a mockery and shouldtherefore bo dissolved. This submission must fail for the reason that itdoes not lio in tho mouth of the husband, who is hold to bo tho guilt3*party, to complain if his wife chodsos that the ma’rriago relationshipshould continue. She is ontitled to ask only for a judicial separation,even if the greater relief of a divorco would have been justified upon tho
• (1921) A. D. alp. 212.* (1913) A. D. 35.
3 (1929) A. D. 109.
evidence, although I doubt if the husband’s conduct in this caso was of a,sufficiently grave-character to warrant tho granting of a divorce. It wasdocided in Orr v. Orr 1 and Keerlhiralne'v. Karunawathie – that a judicialseparation may be obtained on tho samo grounds as a divorce. Poysqr,S.P.J., in tho lattor caso quoted with approval tho words of Solomon,J.A., in Johnston v. Johnston 3 :—“ Tho larger remedy of divorce inclndosseparation a inen-sa el thoro and if tho injured party is satisfied to ask.for the smaller remedy it is difficult to seo on what grounds itcould possibly bo refusod ”.
I would dismiss this appeal with costs in both Courts. I would, how-ovor, draw tiro attention of tho District Judge to tho.form of the dccrcosigned by him in this caso. It has been pointed out to us by Sir DalitaRajapakso that the dccrco that has boon entered is a decree of divorce.This is obviously wrong, and a correct dccrco for separation a men set ct-thoro should bo entered.
Appcal dismissed.
Rose, C.J.—I agree.