089-NLR-NLR-V-72-A.-DHARMASENA-Appellant-and-B.-K.-NAVARATNE-Respondent.pdf
H. X. O. FERNANDO, C.J.—Dharmaacna. t*. Ravaratne
419
1967 Present: H. N. G. Fernando, C.J., and Siva Supramanlam, J.A. DHARMASENA, Appellant, and B. K. NAVARATNE,
Respondent
S. C. 574(65 (F)—D. C. Colombo, 6399(D.
Divorce action—Evidence—Wife's confession, outside Court, of adultery—Inadmissi-bility against co-respondent—Standard of proof for proving adultery.
In a divorce action instituted by a husband, statements made outside Courtby the defendant (the wife) admitting adultery cannot be used against theco-respondent in proof against him of an act of adultery.
Proof beyond reasonable doubt is necessary for proof of adultery.-
A.PPEAL from a judgment of the District Court, Colombo.
E. R. S. R. Cootnaraswamy, with E. C. ChaJcradaran, for the 2nddefendant-appellant.
D. R. P. Goonetilleke, with 31. D. K. Kulatunga, for the plaintiff-respondent.
Cur. adv. vult.
May 20, 1967. H. N. G. Fernando, C.J.—
The plaintiff brought this action for divorce from his wife on theground of her adultery with the 2nd defendant. The plaintiff and the2nd defendant are both Police Constables who at the relevant time livedwith their wives in the married quarters at the Cinnamon Gardens PoliceStation ; tho quarters of the two families adjoined each other.
420
H. X. G. FJERXANDO, C.J.—Dhartiiasena v. Nava rat ne
At about 5.30 in the morning of 7th February, 1904, the plaintiff lofthis quarters in order to report at the Station ; his wife remained in thequarters with her young child and the plaintiff’s brother. When theplaintiff returned about a half-hour later, his wife was not in the quartersand on inquiry from his brother, he was told that she had gone towardsthe kitchen at the rear of the premises. The plaintiff stated that a whilolater lie saw his wife “ being pushed out ” by the 2nd defendant from adoorway in the latter’s quarters. The plaintiff immediately assaultedhis wife, and she then confessed that sho had been called by the 2nddefendant into tho latter’s quarters and there had intercourse with the2nd defendant. (The latter’s wife, a hospital attendant, had been awayfrom homo on night duty.) Thereafter, according to the plaintiff, hiswife was “ dragged ” by tho 2nd defendant into the latter’s quarters andonly emerged from there after the Iajise of some minutes. The plaintiffimmediately informed an Inspector of the incident, and of his wife’sadmission, but the Inspector was unable to record statements untilafter 10 o’clock. At that stage, tho plaintiff’s wife admitted in astatement to the Inspector an act of intercourse with the 2nd defendant.The latter, however, denied any intimacy and further denied that he hadever sjroken to the 1st defendant.
The evidence for the plaintiff at the trial was that which I havesummarised above. The wife retracted her confession, stating that shehad been forced to make it because of threats by the plaintiff. Both sheand the 2nd defendant, however, did admit that sho had been called b}rthe 2nd defendant towards the entrance to the latter’s room, and hadthere some conversation about an incident which had oeexu-red in thequarters a few days earlier. The learned trial Judge was satisfied thatthe confession of adultery had keen made voluntarily by the wife, whohas not appealed against the finding that she had committed adulteryand the decree for divorce.
But in holding against the 2nd defendant that lie was guilt}' ofadultery, the trial Judge nowhere refers to the long-established jxrmcijdethat statements made, outside Court by the defendant (the wife) in adivorco action are not admissible as evidence against the co-resjjondcnt(Elialamby v. Elialnmby*). The Judge failed to direct himself that thewife’s alleged confession to the Insjxcctor in this case could not be usedagainst the 2nd defendant in proof against him of an act of adultery.
When the confession is excluded from consideration in the case againstthe 2nd defendant, tho only circumstances which remain are :— 1
(1)that the 1st defendant had apparently entered the neighbouringquarters early in the morning, and that a while later the 2nddefendant pushed her out of those quarters ;
1 (1025) 27 N. L. R. 30G.
421
H. X. G. FERNANDO; C.J.—Dharmascna v. Xavaraltie
that after the plaintiff had assaulted his wife, the 2nd defendantdragged her into his quarters, where she remained for some littletime;
that tho 2nd defendant falsely denied to the Inspector that hehad ever spoken to tho woman, whereas he later admitted inevidence that ho did call to her and speak to her on this particularmorning.
The plaintiff admitted at the trial that the 1st defendant and tho wifeof the 2nd defendant used to visit each other. Despite this admission,the learned trial Judge refused to believe that the two women had beenon friendly terms, and had gone out together to witness the IndependenceDay celebrations. The reason stated for this disbelief arose from amisdirection on the facts. It would appear that the plaintiff and his wifehad only occupied the quarters a few weeks before this incident. Therewas evidence that the 2nd defendant’s wife had been on night duty atthe hospital during the preceding two weeks. The Judge thought thatthere was little chance for the wohichto meet; because one of them hadbeen on duty at the hospital. It was a misdirection to think so, becausethe duty was night duty, which did not by any means exclude thepossibility of meetings during the daj'. But for the statements in theconfession, the visit to the 2nd defendant’s quarters on this particularmorning was in the circumstances open to an “innocent” explanation.
So far as the 2nd defendant was concerned, there was nothing in theevidence to contradict his version of an innocent conversation with theplaintiff’s wife. Even if she did enter his quarters, the plaintiff’s ownevidence is that the 2nd defendant 'pushed her out, a circumstance whichat the least casts doubt on the theory that an act of intimacy had takenplace. Counsel for the plaintiff in appeal could point only to the factwhich I have mentioned at (3) above : but a false denial by a man thatho has ever spoken to a woman does not raise any strong inference thatwhen he did speak to her he did so to entice her to intercourse.
Had tho trial Judge reminded himself of tho principle that the wife’sconfession was not evidence against tho co-respondent, and of the furtherprinciple that the general standard of j>roof beyond reasonable doubtapplies for proof of adultery (Jayasinqhe v. Jayasinghe 1), I do not seehow he could have found the charge proved against the 2nd defendanton such tenuous material.
Tho decree awarding damages against the 2nd defendant and thefinding that he committed adultery with the 1st defendant are set asidewith costs in both Courts.
Siva Suphamaxiam, J.—I agree.
1 (1954) 55 N. L. R. 410.
Appeal allowed.