047-SLLR-1984-V1-MUTHURANEE-v.-THURAISINGHAM.pdf
CA
eMuthuranee v. ThuraiSingham
381
MUTHURANEE
v.
THURAISINGHAM
COUftT OF APPEAL.
TAMBIAH, J. AND ABEYWARDENA. J.
C.A. 575/79(F) – D. C. MALLAKAM 2150/D.
FEBRUARY 28, 1984.
Divorce – Civil Procedure Code, section 60812} (b) – Separation a mensa et thofo ofover seven yews as a ground – Reckoning of seven years.
The respondent to this appeal filed this suit on 1.2.1978 seeking a divorce from hiswife the appellant under section 608 (2) 4b) of the Civil procedure Codq on the groundof separation from her a mensa et thoro for a period of over seven years beginningFebruary 1968. At the time the respondent filed this suit there was pending another suitfiled by him on 10.6.1977 for a oivorce from the appellant on the ground of malicious
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desertion. On 22.9.1976 on the application of the respondent the earlier suit wasdismissed without costs and without prejudice to the respondent's rights in the latersuit and with the consent of the appellant.
The questions for determination were whether –
(J) the second suit was bad as it was filed during the pendency of the earlier divorcecase and a party should not be vexed twice regarding the same matter.
the period of seven years should be reckoned only prospectively from 15.12.77
which is the date on which the Civil Procedure Code was amended to bring in section608 |2) (b).'
in addition to cessation of cohabitation for seven years, the conditions necessary toobtain a decree for judicial separation must also be established if reliance is beingplaced on section 609 (2) (b) of the Civil Procedure Code.
(4j the Court in the exercise of its discretion will refuse to grant a divorce in view ofrespondent's own adulterous conduct which he had admitted.
Hetd-
(t) The fact that one action is pending in respect of a cause of action is no bar to theinstitution of another action seeking the same relief against the same party especially ona different cause of action. There is no possibility of the appellant being vexed twice onthe same matter as the first action was withdrawn and dismissed with her consent.
The amendment introducing section 606 (2) (b) into die Civil Procedure Codecreated a new ground of divorce for the future and is in truth not retrospective. To holdthat the period of seven years must be reckoned only from 15.12.1977 would in effectrender the amendment a dead letter and sterile on the Statute book for a period ofseven years from this date. Section 608 (2) (b) applies even to cases where partieshave been separated a mensa et thoro for more than seven years prior to thesubsection coming into operation.
The expression ‘separation a mensa et thoro* in the subsection (2) (b|contemplates a physical situation of a separation from bed. board, cohabitation andgoods and carries with it no connotation of matrimonial fault, if matrimonial fault ismade a requirement of s. 608 (2} (b) then this subsection would be the same ass.608 (2) (a) with the period of separation extended to seven years when two yearswould suffice under s. 608 (2) (a). Section 608 (2) (b) aims at relief irrespective offSult where the marriage has broken down beyond repair unlike sections 597 (1),60Sl 1) and 608 (1) (a) where relief is granted on the basis of matrimonial guilt andfault. All that an applicant for divorce under s. 608 (2) (b) need establish is a cessationof cohabitation for a period of seven years; it is not necessary to prove the conditionsnecessary to obtain a decree of separation.
The old proviso to s.,602 of die Civil Procedure Code having been removed, thequestion whether the Court would exercise its discretion in favour or against the plaintiffwhere there is misconduct on his part no longer arises. The adultery of die plaintiff
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(respondent) is no longer a bar to his obtaining a decree for divorce, whether theapplication is based on fault under s. 597 (1) or on-the ground that the marriage hasbroken down under s. €08 (2) (b) of the Civil Procedure Code.
Cases referred to:
Mudiyanse et al v. Appuhamy. (1937) 16C.L. Rec. 254. 255.
The Queen v. The Inhabitants of Christchurch. (1848) 12 Q.8. 149; 116 E.R.823.
Re A Solicitor's Cleric, [1957] 3 AUER 617.
Keerthiratne v. Karunawathie. (1938) 39N.L.R. 514, 516.
Kuhn v. Karp. 1948 (4) SALR 825 (Transvaal Provincial Division).
Seneviratne v. Panishamy, (1927) 29 N.L.R. 97.
Hinesv. Hines and Burden. [1918JP. 364 (Probate Division).
Abraham v. Alwis. (1941) 42 N.LR. 373.
Apted v. Apted & Bliss, [1930] P. 246; 46 TLR 456.
Perera v. Mathupali, [1968] 71 N.L.R. 461.
Sedins Singho v. Somawathy, [1978 – 79] 2 SriLR 140.
APPEAL from the District Court of Mallakam.
X. Kanag-lswaran for appellant.
K. N. Choksy. P.C.. with A. Chinniah, Miss. I. R. Rajepakse and Nthal Fernando forrespondent.
Cur. adv. vuIt.
May 7; 1984.
TAMBIAH. J.
The appellant is the wife of the respondent. The parties were marriedon 9.9.1959 and lived as husband and wife until February 1968. Theyhave one daughter by the said marriage who is now about 18 1/2years old.
On 10.6.77, the husband, who is the respondent to this appeal,instituted Case No. 1765/0 for divorce on the ground of maliciousdesertion by the wife. The appellant filed answer and denied shemaliciously deserted the respondent; it was her position that’ herhusband maliciously deserted her and was living in open adultery withone Cecilia by whom he has two children. She prayed lor a dismissalof the action. The case was fixed for trial for 12.5.78 and postponedfor 22.9.78.
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On 1.2.78, during the pendency of Case No. 1765/D, therespondent instituted the present proceedings – Case No.2150/D-for a decree of dissolution of marriage, under s.608 (2) (b) of the Civil Procedure Code, as they have been separatedf<jT a period of over seven years.
According to the appellant, the respondent fraudulently attemptedto obtain an ex parte divorce on a false report of service of summons.She filed papers to set aside the Order Nisi entered. The matter cameup for inquiry on 22.9.78 and of consent of parties, she waspermitted to file a statement of objections to the application of therespondent under s. 608 (2) (b) of the Code. On the same date, therespondent moved to withdraw Case No. 1765/D as he had filedCase No. 2150/D. Of consent of parties, his application was allowedwithout prejudice to his rights in Case No. 2150/D, and Case No.1765/D was dismissed without costs.
The appellant filed her statement of objections and prayed for adismissal of the respondent's application. The present Case. 2150/D.came up for inquiry on 29.11.78. The respondent, at the inquiry,admitted that he was paying maintenance to his wife and child andfurther admitted that he was having a mistress and had two childrenby her. These admissions were recorded.
At the inquiry, learned Attorney for the appellant contended : (1) Asthe Civil Procedure Code came into operation in December 1977. theperiod of seven years should be reckoned from December 1977..I2) Aguilty party cannot come under s. 608 (2) (b) of the Code. (3) As therespondent is paying maintenance, there is no seDaration a mensa etthoro.‘
' The learned Judge overruled all three objections and entered decreenisi dissolving the marriage to be made absolute three months hence.
It is necessary to reproduce the entirety of s. 608 of the Code.
• "608. (1). Application for a separation a mensa et thoro on anyground on which by the law applicable to Ceylon such separationmay be granted, may be made by either husband or wife by plaint tothfe District Court, within the local limits of the jurisdiction of whichhe or she, as the case may be. resides, and the court, on beingsatisfied orr*due trial of the truth of the statements made in suchplaint, and that there is no legal ground why the application shouldnot be granted, may decree separation accordingly.
CAMuthyanee v* Thuraisinghatp (Tambiah, J.)385
Either spouse may –
|a) after the expiry of a period of two years from the enteringof a decree of separation under subsection (1) by a DistrictCourt, whether entered before or after the relevant date, or
(b) notwithstanding that no application has been madeunder subsection (1) but where there has been a separation amensa et thorn for a period of seven years,
apply to the District Court by way of summary procedure for adecree of dissolution of marriage, and the court may, upon beingsatisfied that the spouses have not resumed cohabitation in any casereferred to in paragraph (a), or upon the proof of the matters stated inan application made under the circumstances referred to in paragraph(b), enter judgment accordingly :
Provided that no application under this subsection shall beentertained by the court pending the determination of any appealtaken from such decree of separation. The provisions of sections604 and 605 shall apply to such a judgment.
In this sub-section 'relevant date' means the date on which theCivil Courts Procedure (Special Provisions) Law, 1977, comes intooperation,’
The questions that arise for our determination in this appeal are
Whether the present application for divorce is bad in law as itwas filed during the pendency of Divorce Case No. 1765/D ?
Whether the period of seven years is to be counted as fromJ 5.1 2.77 ?
(3} Whether a spouse who applies for a decree of dissolution ofmarriage under s. 608 (2) (b) must prove the conditions necessaryto obtain a decree for judicial separation in addition to cessation gfcohabitation for seven years ?
In any event, even if the respondent succeeded in prayingthat there has been a separation a mensa et thoro for a period ofseven years, a Court in the exercise of its discretion will refuse him adivorce by reason of his adulterous conduct, which he "has admittedat the inquiry.
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It is the contention of learned Attorney for the appellant that the lawdoes not permit a multiplicity of suits ; that a party cannot be vexedttoice regarding the same matter.
In Mudiyanse et al v. Appuhamy (1) Soertsz. J. said (p.255) –
'So far as Courts in Ceylon are concerned there is the highestpossible authority to support the view that the fact that one action ispending in respect of a cause of action is no bar to the institution ofanother action in respect of that same cause of action.'
But, the cases, 1765/D and 2150/D, were instituted on twodifferent causes of action : in the first action, the cause of action wasmalicious desertion while in the 2nd action, the cause of action wasseparation a mensa et thoro for a period of seven years. The issue inthe second action is not the same as in the first. If, as ruled in thedecided case, the fact that one case is pending is no bar to theinstitution of a second action in respect of the same cause of action,the more so, then, a pending case is no bar to the institution of asecond action against the same party on a different cause of action,though the relief claimed in both cases is the same. Moreover, in thisinstance, there is no possibility of the appellant being vexed twice inregard to the same matter, as, with her consent, the respondent haswithdrawn his first action and it has been dismissed.
The next question I have to decide is, whether the period of sevenyears of separation be counted as from 15.12.1977, when s.608 (2) (b) was brought into operation by Law No. 20 of 1977 7
Learned Attorney for the appellant cited the following passages
from Bindra (Interpretation of Statutes. 6th Edn.) -• *
'If the Court is in doubt whether the statute was intended tooperate retrospectively, it should resolve the doubt against suchoperation …. It is a general rule that Acts of Legislature will not beso construed as to make them operate retrospectively, unless theLegislature has explicitly declared its intention that they should sooperate, or unless such intention appears by necessary implicationsfrom the nature and words of the Act so clearly as to leave no roomfor a reasonable doubt on the subject. The general rule is that aretrospective effect ts not given to a stature. There is a presumptionagainst retrospective effect.* (p. 734).
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‘Statutes should be interpreted, if possible, so as to respectvested rights. It is not to be presumed that interference with existingrights is intended by the Legislature, and if a statute be ambiguousithe Court should lean- to the interpretation which would-supportexisting rights.'(p. 736).
• «
Relying on these passages, he submitted that s. 608 (2) (b) has notbeen made retrospective in its operation ; that while s 608 (2) (a)contains the words ‘before or after the relevant date' no such wordsare found in s. 608 (2) (b) ; that to take into consideration the periodof separation before s. 608 (2) (b) came into operation, would be tomake its operation retrospective ; that if in doubt, the Court will lean toan interpretation that the enactment is prospective in its operation ;that if s. 608 (2) (b) is held to be retrospective, it would affect theright of the appellant, in Case No. 1765/D to oppose the granting of adecree of divorce on the ground that the respondent is guilty ofadultery, which adulterous conduct he has admitted in Court at theinquiry.
This last submission based on an alleged right, is untenable. Theright to oppose a granting of a decree of divorce on the ground of theplaintiff's adultery could have accrued to the appellant only under theproviso to 602 of the old Code, which proviso has been left out in thenew Code. To give retrospective effect to s. 608 (2) (b) will thereforehot affect any existing right claimed by the appellant. Furthermore,Action No. 1765/D was withdrawn with the appellant's consent andhas been dismissed. The occasion, therefore, will not arise for theexercise of such right.
Learned President's Counsel submitted that the question ofretrospectivity does not arise. He cited a passage from Halsbury'sLaws of England (Vol. 36 – 3rd ed., p. 423, para 643) whichstates
‘A Statute is not retrospective merely because it affects existingrights ; nor is it retrospective merely because a part of the requisites•for its action is drawn from a time antecedent to its passing.
It was his submission that when s. 608 (2) (b) came into operationon 15.12.77, it applied both to existing facts and to future facts, sothat, where on 13.12.77, the existing fact in any particular case wasthat a husband had been living apart for seven years, sub-section (b) ofs. 608 (2) would apply.
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The Queen v. the Inhabitants of Christchurch (2) and Re v.Solicitor's Clerk (3) illustrate the principle stated by Halsbury.
In the former, an enactment in the Statute, which was passed on26.8.1846 provided that no person shall be removed from the parishwho shall have resided therein for five years. The proviso to theenactment stated that the time during which such person shall receiverelief from any parish shall be excluded in the computation of the saidfive years. The pauper, a widow, had resided in the removing parishfrom 1839 till the order of removal in 1847. She had been receivingrelief from 1843 to 1846. If the time during which she was soreceiving relief, before the passing of the Act, was to be excluded inthe computation of time of residence, she was removable from theparish. It was held that the proviso in the Statute, excluding from thecomputation of the five years residence the time during which aperson shall receive relief from the parish, applies to cases where therelief has been given, before the passing of the Act. The order ofremoval was confirmed. Dealing with the argument that theapplication of the proviso to time past would make the Statuteretrospective and the general presumption is against a Statute bangintended to be retrospective. Lord Denman, C.J. said –
' The second reason, viz, that there is a presumption against aretrospective statute being intended, is founded on amisconception. The statute is prospective only. its direct operationis only on removals , after it has passed, it does not alter existingrights in respect of completed removals. A space of time is anessential ingredient in the case to which it applies : and this spaceof time may consist in part of time passed before the statutepassed, as is the case with statutes in limitation and prescription :but they are not therefore classed with the retrospective statutes '
In the latter case, the Solicitor’s Act, 1941, disqualified a personbeing employed as a solicitor's clerk if he had been convicted ofVaydulent conversion of any money belonging to a solicitor. Theamending Act of 1956 extended such disqualification irrespective ofwhether, the fraudulent conversion was of money belonging to hisemployer or to one of his employer's clients. The appellant had beenconvicted j# 1953 of fraudulent conversion of property whichbelonged neither to+iis employer nor to a client of his employer. TheDisciplinary Committee of the Law Society in September, 1957, made
CAMuthuranee v$Thuraisingham (Tambiah. J.)389,
order that no solicitor should take the appellant into his employmentwithout the written permission of the Law Society. In appeal the orderof the Disciplinary Committee was confirmed. Dealing with the*appellant's contention that to apply the provision of the Act of 1956to a person convicted before that Act came into operation would be tomake its operation retrospective, Lord Goddard, C. J. said (p. 619}-*
' In all editions of Maxwell on the Interpretation of Statutes it isstated that it is a fundamental rule of English Law that no statuteshould be construed to have a retrospective operation unless such aconstruction appears very clearly in the terms of the act or arises bya necessary or distinct implication and this passage has received
judicial approval by the Court of Appeal:In my opinion,
however, this Act is not in truth retrospective. It enables an order tobe made disqualifying a person from acting as a solicitor's clerk in. the future and what happened in the past is the cause or reason forthe making of the order; but the order has no retrospective effect."
Having regard to the principle stated by Halsbury and to theobservations of Lord Denman, C. J. and Lord Goddard, C. J. itappears to me that s. 608 (2) (b) is not a retrospective enactment; itis prospective only. It empowers a Court to grant decrees of divorceon a new ground, in the future. To obtain a decree of divorce under s.608 (2) (b), the applicant must establish a separation for a period ofseven years. For the operation of s. 608 (2) (b). this required period oftime can be drawn from a time antecedent to the passing of Law No.20 of 1977, which introduced s. 608 (2) (b). The respondent cantherefore rely on the period of separation anterior to 15.12.77 to geta decree of divorce under s. 608 (2Hb). ’
The learned Judge in rejecting the submission that the period ofseven years be reckoned from December 1977, observed that if thisposition were to be acceoted, s. 608 (2) (b) would be made nugatoryfor seven years and this was not the intention of the Legislature. He isright. The object of s. 608 (2) (b) is to enable parties, whose*marriages have broken down beyond repair and with no possi&lehope of reconciliation, to part from each other for good. TheLegislature could not have intended that the subsection should remaina dead letter and sterile on the Statute Book for a perjpd of sevenyears after 15.12.77. If this was the‘intention,. I should think, theLegislature would have added the words ‘ after the relevant date ‘ at
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the end of sub-section (2) (b). The absence of such words indicatesthat $. 608 (2) (b) also applies to cases where parties have beenseparated for seven years prior to the sub-section coming intooperation.
The third question for decision is whether in addition to cessation ofCohabitation for seven years, an applicant for a decree of divorce mustalso prove the conditions necessary to obtain a decree of separation.
The present s. 608 (1) is identical with s. 608 of the Civil ProcedureCode. 1889. The original s. 608 had no subsections. TheAdministration of Justice (Amendment) Law. No. 25 of 1975,effected a change. S. 627 (1) enacted that a 'husband or wife mayinstitute an action praying for a judicial separation on any ground onwhich a divorce may be sought, and the Court upon being satisfiedthat such ground exists, may enter judgment accordingly. The Courtmay, however, at any time thereafter, upon the application of bothspouses, discharge the decree of separation, s. 627 (2) furtherenacted that 'either spouse may, after the expiry of a period of twoyears from the entering of decree of separation, apply to the Court byway of summary procedure to have such decree of separationconverted into one of dissolution of marriage, and the Court may,upon being satisfied that the spouses have not resumed cohabitation.- enter judgment accordingly.'
The provisions of Law No. 25 of 1975 were repealed and the newCivil Procedure Code restored the old s. 608 and this section wasre-numbered as s.608 (1). The new Code retained the provisions of s.627 (2) of Law No. 25 of 1975 that after the expiry of two years fromthe entering of a decree for separation, a decree for divorce may be•obtained by either spouse and added the words 'whether (the decreeof separation) was entered before or after the relevant date', i.e.,15.12.77. This provision was numbered s. 608 (2) (a). The newCode further enacted s. 608 (2) (b) in terms of which a separation amensa ex thoro for 7 years is sufficient to obtain a decree of divorce.
»
According to s. 608 (1) an application for a separation a mensa etthoro could'te made 'on any ground on which by the law applicable toCeylon such separation may be granted.* The grounds are theRoman-Dutch Law grounds for separation.
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In Keerthiratne v. Karunawathie {4) Poyser, S. P. J. said (page 515,516)-
' Judicial separation may, therefore be decreed for adulterysubsequent to marriage, and malicious desertion, and also when forother reasons the continuance of the cohabitation would becomddangerous or insupportable. So that a judicial separation may bedecreed on account of cruelty, or protracted differences, or forgross; dangerous and unsupportable conduct in either spouse."
The appellant's attorney therefore contends that an applicant for adecree of divorce under s. 608 (2) (b) in addition to separation for!seven years, must prove the grounds or matters required to be provedunder s. 608 (1) in order to obtain a decree of separation. In otherwords, he said, there must be proof of some matrimonial fault on thepart of the wife, the appellant.
I am unable to accede to his request that I should read into s.608 (2) (b>, in addition to seven years separation, a furtherrequirement, namely a matrimonial fault. The answer to thissubmission is found in the opening words in sub-section (2), 'Eitherspouse may apply to the District Court.' which expresion qualifies both(a) and (b). Let me take the case of a wife who applies for a decree ofseparation under s. 608 (1) on the ground of the husband's adulteryand successfully obtains one. After two years, not only the guiltyhusband, but even the innocent wife is entitled to apply for a decree ofdivorce under s. 608 (2) (a). So too, under s. 608 (2) (b), whereparties are separated for seven years, irrespective of who isresponsible for the separation, either of the spouses can apply for adecree of divorce.
Sub-section 2 (b) says, 'Notwithstanding that no application hasbeen made under s. 608 0)’. either spouse may apply to Court for a *decree of divorce and the Court, 'upon proof of the matters stated inan application made under (b), may enter judgment accordingly.' •
What then, are the matters to be proved by the appellaet,? They are(1) a 'separation a mensa et thoro", (2) such situation between thespouses existed for a period of seven years.
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’Separation may be by the Court, or by consent in certain cases.The former of these is called divorce a mensa at thoro, i.e., a judicial•separation from bed, board, cohabitation, and goods." ( perPoyser, SP. J., citing Thomson's Institutes of the Law of Ceylon inKeerthiratne's case, supra p. 515)
•
The expression 'separation a mensa et thoro", therefore,contemplates a physical situation of a separation from bed. board,cohabitation and goods' and carries with it no connotation of amatrimonial fault. S. 608 (2) (b) enables spouses to permanently end 'their marital relationship on the mere proof of a de facto separation fora period of seven years. The concept of a matrimonial fault is foundonly in s. 608 (1).
There is another important consideration which militates against theappellant's attorney's submission. To succeed under s. 608 (2) (a)the applicant should have first obtained a judicial decree of separationunder s. 608 (1), and await a period of two years to expire from theentering of the decree. To obtain a decree of separation under s.608 (1) he would have to successfully show, as Hahlo in his SouthAfrican Law of Husband and Wife (p.235) broadly puts it-" that furthercohabitation with the defendant has become dangerous or intolerablefor him or her and that this state of affairs was brought about by theunlawful conduct of the defendant"
If, to succeed under s. 608 (2) (b) also the applicant has te provethis broad ground and show a separation for a period of seven years,then, the new Civil Procedure Code could have stopped at s. 608 (2)(a) and not further enacted (2J (b), for, there was no purpose inenacting it.
Why did the new Code enact sub-section (2) (b) and what was theobjective ? Is it not to liberalise the divorce laws of this country and topermit a permanent termination of marital relationship, where themarriage has broken down completely, irrespective of which spousewas at fault, and irrespective ot the reasons which brought about thetermination.*The legislative developments in regard to this matter -bearthis out.
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S. 597 of the old Code enabled any husband or wife to file an actionin the District Court praying that his or her marriage be dissolved onany ground for which marriage may, by the law applicable in Ceylon,be dissolved. This section has been retained in the new Code and is4numbered as s. 597 (1). The grounds are adultery subsequent tomarriage, malicious desertion, and incurable impotency at the time ofmarriage (s. 19 (2) of the Marriage Registration Ordinance). Thesegrounds of divorce, except incurable impotency, are based on the faultprinciple. There must be some matrimonial fault on the part of thedefendant.
• According to s. 608 of the Code, an application for a decree of‘separation could be made ‘ on any ground on which by the lawapplicable to Ceylon such separation may be granted". Here again theremust be some fault on the part of the defendant spouse. S. 627 (1) ofLaw No. 25 of 1975 effected an important change. It made it harderfor a spouse to obtain a decree for separation by requiring theapplicant to establish the grounds on which a divorce may be sought.But, it enacted a new ground of divorce by providing for theconversion of a decree of judicial separation into a decree of divorceafter the lapse of .two years (s. 627 (2)). The new Code restored theold position in regard to the requirements that an applicant mustsatisfy in order to obtain a decree of judicial separation ; it retained theprovisions of s. 627 (2) of Law No. 25 of 1975 (s. 608 <2) (a)) andwent further and enacted s. 608 (2) (b) in terms of which, a mere defacto separation a mensa et thoro for a period of seven years vyouldsuffice to obtain a decree of divorce. The new Code introduced intothis subsection the theory of a broken doivn marriage, beyond repairSo, in the new Code one finds two theories operating side byside – the theory of matrimonial guilt and fault (sections 597 (1). 608(1) and 608 (2) (a)) and the theory of the irreparably broken downmarriage (s. 608 (2) (£>)}. The new Code also retained the remedy ofseparation a mensa et thoro for those who prefer a judicial separationrather than a divorce, and .want to give themselves an opportunity toreconcile their differences and come together.
Perhaps, the concept of a broken down marriage ,haa_beenborrowed from England. According to the Matrirnonial Causes Act1973, the sole ground on which a petition for divorce may bepresented to the Court by either party to a marriage is that themarriage has broken down irretrievably. The Court hearing the petition
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tor a divorce must not hold the marriage to have broicen down unlessthe petitioner satisfies one or more of the following facts : (1) that .therespondent has committed adultery and the petitioner finds itintolerable to live with the respondent, (2) that the respondent hasbehaved in such a way that the petitioner cannot reasonably beexpected to live with the respondent (3) that the respondent hasdeserted the petitioner for a continuous period of at least two yearsimmediately preceding the presentation of the petition, (4} that theparties to the marriage have lived apart for a continuous period of atleast two years immediately preceding the presentation of the petitionand the respondent consents to a decree being granted, (5) that theparties to the marriage have lived apart for a continuous period of at*least five years immediately preceding the presentation of the petition.*The Court inquiring into the facts, must grant a decree nisi for divorce,unless it is satisfied on all the evidence that the marriage has notbroken down irretrievably. [See. Halsbury. 4th Edn. Vol. 13, paras553. 554, 555).
It would, seem, therefore, that in England proof of an irretrievablebreakdown of marriage is a prerequisite for the grant of a decree ofdivorce. There is no such requisite in s. 608 (2) (b).
In South Africa there are four grounds of divorce – adultery,malicious desertion, incurable insanity which has existed for not lessthan seven years, and imprisonment for five years after the defendantspouse has been declared a habitual criminal. The first two 'groundsare based on common law, the other two on Statute (See, Hahlo onThe South African Law of Husband and Wife. p. 295). Commentingon this Hahlo states (pp. 296, 297)-
'The statutory grounds of divorce are based on the idea that it isthe function of divorce to dissolve the marriage tie when theconsortium has been destroyed. The common law grounds ofdivorce are based on the guilt principle. Adultery and maliciousdesertion are offences against the fundamental obligations ofmarriage, for it is of the essence of the marriage relationship thatspouses should live together and become spiritually as well asphysically one flesh*
But while there 'is a social interest in the preservation of marriage,there is also a social interest in not insisting on the continuance of amarriage which has hopelessly broken down. For this reason it is not
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correct to say simply that because a contract aims at the dissolution o£a marriage it is therefore void as being contrary to public policy. Theupholding of the marriage state is only one of the several objects ofpublic policy. Where a marriage has been wrecked beyond hope Qfsalvage the argument of public policy loses much of its
forceTo keep the parties tied to one another in the bonds
of a marriage which has become a sham is obviously conducive toimmorality and potentially more prejudicial to the public interest than adissolution of the marriage bond.
In Kuhn v. Karp, (5) the spouses had separated in 1935. In 1937the wife obtained a decree of judicial separation. In 1947 the spousasentered into an agreement- whereby it was agreed that the judicialseparation should be set aside, that the wife would thereafter sue for adivorce, and that the husband would pay her, inter alia, certainmonthly sums after divorce. A third party guaranteed the husband'sfinancial obligations.
When subsequently the wife sued the third party under theguarantee, he raised the defence that the whole agreement wascontra bonos mores. The Court, however, held that the agreementwas not against public policy. A contract relating to divorce and whichtended to induce a course of conduct inconsistent with themaintenance of the marriage tie was only against public policy, if itwas likely to be harmful to the community as a whole. Here there hadbeen do common home and no consortium for eleven years. Themarriage was 'but a shell' and 'the bottom had dropped out of it’.There was no hope of reconciliation. In such circumstances, it cannever be truly said that the situation in which the parties foundthemselves was one which, in the interests of society, had to bemaintained.
All that an applicant for a divorce decree need establish under s.608 (2) (b), is a cessation of cohabitation for a period of seven yeai% ;it is not necessary to prove the conditions necessary to obtain adecree of separation. I
I come to the final submission of learned Attorney for fhe appellantthat in any event, the Court has a discretion in the matter and shouldrefuse a decree of divorce to the husband, who, admittedly, is living in■ adultery with his mistress.
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Sri Lanka Law Reports
11984] 1 SriL.R.
• The proviso to section 602 of the old Code declared that the Courtshall not be bound to pronounce a decree of divorce if it finds, interalia, that the plaintiff has, during the marriage, been guilty of adultery.T#te plaintiff's misconduct was a discretionary bar to a divorce beinggranted.
In Seneviratne v. Panishamy {6} the husband brought an action for-divorce on the ground of the wife's adultery. There was evidence inthe case that the plaintiff himself was living in adultery. The trial Judgedismissed the action on the ground of plaintiff's own adultery. Theplaintiff's appeal was dismissed. Garvin, J. cited with approval theEnglish case of Hines v. Hines (7).which stated "that exceptionalcircumstances only will lead the Court to overlook the matrimonialdefault of a petitioner. … It is based on the general and cogentrequirements of a public morality, and the resultant duty of the Courtto vindicate a high standard of matrimonial obligation. Theenforcement of this duty will create a standard which all may knowand find it well to follow . . . ." Garvin, J. finally said – 'He who seeksto be released from the matrimonial tie must himself be free frommatrimonial offence. This rule may only be relaxed in exceptionalcases and where the relief prayed for may be granted withoutprejudice to the interests of public morality.’
In Abraham v. Alwis (8) the plaintiff sued his wife for a divorce onthe ground of malicious desertion. The evidence established maliciousdesertion on the part of the wife. The plaintiff admitted adultery with awoman and this intimacy continued up to the date Qf action. The trialJudge followed the decision in Seneviratne's case and found thatthere were no exceptional circumstances to justify the exerciser ofdiscretion in plaintiff's favour. In appeal, the Supreme Court saw noreason for considering that the discretion of the trial Judge wasimproperly exercised. Moseley. J. cited with approval the principleslaid1 down in Apted v. Apted and Bliss (9)-
’ "In every exercise of discretion the interest of the community atlarge in rnaintaining the sanctions of honest matrimony is a
governing considerationIt is manifestly contrary to law that a
judicial discretion in favour of a litigant guilty of misconduct in thematters in question shoufd be exercised where that course willprobably encourage immorality.'
CAMuthuranee v. tThuraismgharr^ (Tambiah. J.)397
In Perera v. Mathupali (10) the husband sued the wife for divorce onthe ground of malicious desertion. The defendant was living with aparamour by whom she had a child. The evidence disclosed that the*husband too had a mistress by whom he had three children. The trialJudge answered the issue regarding malicious desertion against theplaintiff-. In appeal, the Supreme Court held that the issue had beei*wrongly answered. It went on to consider whether the trial Judge hadcorrectly exercised the discretion vested in him by the proviso tos. 602 against the plaintiff. Both Sirimane, J. and de Kretser, J. heldthat the discretion should have been exercised in favour of the plaintiff.The judgment of the District Court was set aside and a dedree nisi wasentered granting a divorce from the defendant.
Sirimane, J. said –
"It is quite clear from these facts that this marriage is quite deadnow. The plaintiff lives with a woman whom he cannot marry andhas 3 children, who are illegitimate. The defendant too lives with aman who can only be her paramour, and has a child who is
illegitimateOn the facts of this case, iris apparent that this
marriage too has completely broken down and with due regard tothe sanctity of marriage, there is hardly a reason why the marriagetie should continue/,
and de Kretser, J. said –
"The President in the case of Apted v. Apted and Bliss pointed outthat 'in every exercise of discretion the interests of the communityat large in maintaining the sanctions of honest matrimony is agoverning consideration.' And undoubtedly it should be for thesanctity of the marriage tie and public morals must be safeguarded.Byt one must also, I think, be careful to see that the attempt tosafeguard does not in fact cause further damage to them.
It is an incontrovertible fact that this marriage is at an end, and toconvert to Unholy Deadlock what was once and is no longer Holy*Wedlock by refusing to exercise a discretion vested in a judge so ?arfrom safeguarding the sanctity of marriage appears to me to make amockery of it and is not in the public interest, for I think one mustpay some heed to the change in the attitude of the socjpty we live inin regard to 'the sanctions of honest matrimony'. In the days whenthe Civil Procedure Code was enacted-section 602 is in fact based
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Sri tanka Law Reports
[1984] 1 SriL.R.
on section 31 of the Matrimonial Causes Act of 1857 – the manand woman who ‘lived in sin' because they could not obtainfreedom to marry, because they had.matrimonial offences to theirdiscredit were social lepers. Today, that is not the case, and that islargely due to the sympathy felt towards those who are unable toregularise such unions whether due to antiquated divorce law or thetoo stringent exercise of a discretion vested in a divorce judge. Itappears to me that when a court is satisfied that the marriagebetween the parties is truly at an end it should exercise its discretionwith a view to rehabilitate and not to punish. The exercise ofdiscretion in a manner that would tend to regularise union in theinterests of the parties and the 'nnocent children born to them is inthe public interest and in my opinion a correct use of the discretionvested in a judge. To so exercise it when one views the matter in itsproper perspective does no damage to the sanctity of marriage andin fact enhances respect for the law."
In the above three cases, the Court was faced with the problemwhether its discretion vested in it by the proviso to s. 602 should beexercised in favour or against the plaintiff on account of his
matrimonial misconduct.
The Administration of Justice (Amendment) Law, No. 25 of 1975,did away with the proviso to s. 602 , and it has not been re-enacted inthe new Civil Procedure Code.
In Sedins Singho v. Somawathy (11) the trial Judge having foundthat the defendant was guilty of malicious desertion and adultery,dismissed the plaintiff's action for a divorce on the ground that hehimself had been living in adultery. Wimalaratne, J. with Atukorale. J.agreeing, set aside the judgment and entered a decree nisi dissolvingthe marriage Wimalaratne, J. said –
"Mr. Jayawardena has referred us to $. 602 of the new CivilProcedure Code which has left out the proviso contained in theformer Code. The fact that the plaintiff has during the marriage beenguilty of adultery will not be a bar to his obtaining a divorce." •
• The present position, therefore, is that the adultery of the plaintiff isno longer a bar to his obtaining a decree for divorce, whether theapplication for a divorce is based on a fault based ground under s. 597
or on the ground that the marriage has broken down under s. 606
(b) of the Civil Procudure Code.
CA
Mutburanee v. Thuraisingham (Tambiah. J.)
399
The final submission of appellant’s attorney also fails.
I affirm the judgment of the learned Judge and dismiss the appeal,but. in all the circumstances of the case, order no costs.
ABEYWARDENA, J. – I agree.
Appeal dismissed.