044-SLLR-SLLR-1994-V3-RAMANATHAN-v.-THAMBIMUTHU.pdf
RAMANATHAN
V.
THAMBIMUTHU
COURT OF APPEAL.
ANANDA COOMARASWAMY, J. AND EDUSSURIYA, J.
CA LA NO. 169/93
D.C. KANDY CASE NO. D 2237
JANUARY 25. FEBRUARY 07, MARCH 08 AND JUNE 29.1994.
Matrimonial action – Divorce – Alimony pendente ate – Section 624 A of the Civil Procedure Code.
Held:
Alimony pendente life Is payable from the date of application to court and not retrospectively from the date of desertion.
APPLICATION for leave to appeal.
Cases referred to:
Menlke v. Dissanayake 7 NLR 8.
Asserappa v. Asserappa 37 NLR 372.
Yadalgoda v. Herat Supreme Court Circular Vbl. II No. 9 page 39.
Batty Weerakoon for petitioner.
A. K. Premadasa, PC. with C. £ de Silva for respondent.
.Curadvvult
August 24,1994.
ANANDA COOMARASWAMY, J.
This is an application for leave to appeal to this Court from an order of the learned District Judge of Kandy delivered on 28.7.93 holding that the respondent is entitled to alimony pendente lite from the date of filing papers for such claim under section 624A of the Civil Procedure Code.
The petitioner instituted this action for a divorce on the Iground of malicious desertion and the respondent appeared on summons and filed papers claiming alimony pendente lite cm 23rd January 1991.
On 30th November 1992 it was agreed that the petitioner would pay Rs. 6000/- per mensem, and the respondent claimed ttiis amount from the date of filing the papers for alimony pendente lite but the
petitioner submitted that it was payable from the date of the order and after the learned District Judge heard submissions he made order that it was payable from the date she claimed the sum, wtych is the date of filing the papers. It is from this order that the application is filed for leave to appeal and leave was granted by thi.s court.
Alimony pendent life is maintenance payable by husband to his family pending the conclusion of the divorce action and therefore it follows that it is payable from the date she claims this money as she brings to the notice of court that she and her children are not being maintained by her husband. Obviously it cannot operate retrospectively as claim is from the date she files the papers, otherwise it will cause hardship to the husband if the wife waits long and claims retrospectively. Equally true that foe wife should not suffer for the delay in delivering foe order of the court. It therefore follows both in law and equity that the payment must be made from the date of application, unless parties otherwise agree. In the instant case the amount was agreed1 upon and not the operative date.
However a view has been expressed that alimony pendente lite is payable from foe date of service of the principal petition (Vide Latey on Divorce 14th Edition page 899, and Rayden on Divorce 5th Edition page 270.
Section 614 of the Civil Procedure Code applies to divorce actions in Sri Lanka, according to which a petition may be presented by a wife for alimony in an action for divorce. Such claim is payable from the date of application (Vide Menika v. Dlssanayaka('1, Asserappa v. Asserappa ®, Yadafgoda v. Heratw and also The Roman Dutch Law of Divorce by C. E. Jayawardene page 90).
We are therefore of opinion that the respondent is entitled to claim alimony pendente lite from the date she made foe application for such a claim.
For the foregoing reasons we dismiss the appeal with costs fixed at Rs. 3150/-.
EDUSSURIYA, J. -1 agree.
Appeal dismissed.