JAYASINGHE, Appellant, and JAYASINGHE, Respondent

117-NLR-NLR-V-55-JAYASINGHE-Appellant-and-JAYASINGHE-Respondent.pdf

410
Jayaainghe v. Jayaainghe
1954Present: Gratiaen J. and Gunasekara J.JAYASINGHE, Appellant, and JAYASINGHE, Respondent8. C. 29—D. C. Gampaha, 1179/1182D
Divorce action—Requisite standard of proof—Condonation of adultery—No issueraised at trial—Circumstances when Court is put upon inquiry—Civil ProcedureCode, s. 602.
In an action for divorce on the ground of adultery—
Held, (i) that the words “ satisfied on the evidence ” in section 602 «f theCivil Procedure Code mean that in actions for divorce the Court must demandthe same general standard of proof beyond reasonable doubt as is requiredto support a conviction in a criminal court.
(ii) that, even in the absence of an issue as to condonation of the allegedadultery, the trial judge is put upon inquiry as to whether there has beencondonation or not if the evidence discloses that the parties had resumed livingtogether under circumstances which would justify the belief that a reconciliationhad taken place. “Conjugal cohabitation” within the meaning of section602 (2) of the Civil Procedure Code can be resumed even without a renewal ofsexual intercourse between the spouses after reconciliation.
^^.PPEAL from a judgment of District Court, Gampaha.
Plaintiff sued the 1st defendant for divorce on the ground of adultery.They were married in May, 1920. It was alleged that during the periodApril to August, 1945, the 1st defendant committed adultery with the2nd defendant. Although no issue as to condonation was raised at thetrial, the plaintiff conceded in his plaint and evidence that he forgave hiswife and lived with her in the same house until 30th May, 1946, afterhe became aware, in April 1946, of the alleged adultery.
H. W. Jayewardene, with Ivor Misso and D. R. P. Goonetilleke, for the1st defendant appellant.—On the facts it is submitted that the conclusionsof the trial Judge are not warranted by the evidence led in the case.
There are more fundamental misdirections on the law. In regard to theburden of proof in a divorce case, it is now settled law that the Courtmust demand the same strict standard of proof—proof beyond reasonabledoubt—as is required to support a conviction in a criminal court—Preston Jones v. Preston Jones x. See also Ginesi v. Ginesi 2, Bater v. Bater 3and Davis v. Davis 4.
The trial Judge has failed to address his mind to the plea of condonationappearing in -the pleadings and evidence. It was the tlear duty of thelCourt to have raised it as an issue even though the parties or their Counse,-failed to.do so—Moosbrugger v. Moosbrugger 5. In Roman Dutch lawcondonation implies “ forgiveness ” and “ complete reconciliation ”
1 (1961) A. C. 391; (1951) 1 A. E. R. 124.3 (1951) P. 35 ; (1950) 2 A. E. R. 458.
* (1948) P. 179 ; (1948) 1 A. E. R. 373.4 (1950) P. 125 ; (1950) 1 A. E. R. 40.
(1913) 29 T. L. R. 715.
GRATTAElf J.—Jayasinghe v. Jayasinghe
4tl
(Voet 24.2.5, Young v. Young1, Dias v. Mensaline Hamine 2) or, inthe words of Section 602 (2) of the Civil Procedure Code, “ conjugalcohabitation .•
There is no such thing in law as conditional cohabitation—Hender-son v. Henderson3. Assuming, therefore, that the 1st defendant wasguilty of adultery, the plaintiff has completely condoned it.
There is the further point that the Court has no power to award theplaintiff Rs. 150 a month out of 1st defendant’s property as permanentalimony—De Silva v. De Silva4, Lorriman v. LorrimanB. Thecircumstances under which such permanent alimony should be grantedto the husband are discussed inRayden on Law of Divorce, p. 441 (4ihed.).
Issadeen Mohamed, with M. L. de Silva, for the plaintiff respondent.—It may be admitted that the first part of the judgment of the trial Judgeon the question of the burden of proof does not contain a correct state-ment of the law. But the Judge in effect tries to reconcile conflictingEnglish decisions which were placed before him at the trial. Takingthe totality of his ruling on the question of the burden of proof it appearsto be clear that he was applying the same standard of proof as thatnecessary to support a conviction in a criminal trial.
Condonation in itself has a special significance of (a) Forgiveness, (b)Complete reconciliation, which are two distinct and separate things.In the present case there is only forgiveness but no complete reconcilia-tion. For complete reconciliation there must be subsequent maritalintercourse—Keats v. Keats. 6 Mere shelter given by wife to husbanddoes not amount to a complete reinstatement—there must be a manifestconsent. See Niemand v. Niemand7, Dias v. Mensaline Hamine 8,De Hoedt v. De Hoedt ®, Henderson v. Henderson 10. In this case, there-fore, there was only a promise of forgiveness, nothing more.
On the facts, there is overwhelming evidence to support the findingsof the trial Judge.
Cur. adv. vult.
May 10, 1954. Gbatiaen J.—
The plaintiff (then 23 years of age) and the 1st defendant (aged 16)were married with her father’s consent on 27th May, 1920.
The 1st defendant was possessed of fairly considerable means, butthe plaintiff, who had no fixed employment, was impecunious andextravagant. He squandered a good portion of his wife’s wealth, andthe learned District Judge was satisfied that during the period 1940 to1945 alone she had paid over Rs. 33,000 in settling his debts, and thatfrequent quarrels arose because he “ pestered her for more and moremoney for his speculative ventures and betting ”.
Nevertheless, the plaintiff and the 1st defendant seem to have beenfond of one another after their fashion. They were both prolific letterwriters, and the correspondence produced at the trial indicates that,
1 25 S.C.428.«48 L. J. JR. 57 at 61.
(1945) 46 N. L. R. 193.1(1898) 15 S. C. 217.
(1944) A.C. 484 ; (1944) 1 A.E.R. 44.8(1945) 46 N. L. R. 193 at 197.
(1925) 27 N. L. R. 289.9(1910) 4 Leader 66.
(1908) P. 282..10 (1944) A. C. 484 ; (1944) 1 A. E. R. 44.
412
GB.ATIAEN J.-—Jayasinghe v. Jayasinghe
whenever they were separated by force of circumstances, they tookundisguised pleasure in subjecting each other’s misdemeanours andfaults to minute analysis.
In 1944 the husband and wife lived together in her ancestral home atKanampella, but when his mother fell ill early in 1945, he began to spendmost of his time in the latter’s house at Weboda (14 miles a^ay). Themother’s illness was eventually diagnosed as tuberculosis, and, untilshe died in September 1945, he more or less adopted Weboda as hispermanent residence in order to attend to the patient. The 1st defendantremained at Kanampella, but it is common ground that they visitedeach other from time to time and that, until at least April, 1945, maritalintercourse often took place on these occasions. The 1st defendant' wason cordial terms with her mother-in-law.
In or about June 1945 another “ misfortune ” brought them speciallyclose together. Their only child Ena (a girl of education and culture)fell in love with the young man who is now her husband. The plaintiffand the 1st defendant objected to this association, and they jointly andseverally made unsuccessful (and sometimes hysterical) attempts tobreak it off. Ena eventually married the young man without her parents’consent on 31st January 1946. She was promptly disinherited by hermother, and on 8th February 1946 she received a letter 1D10 from theplaintiff (obviously written on his wife’s behalf as well) in which it wasmade quite clear to her that her overtures with a view to reconciliationwith her parents were resented.
There is another person to whom reference must now be made. The2nd defendant, when he was a lad of ten, had been engaged by the plaintiffand the 1st defendant as their domestic servant in Colombo (where theythen resided) in'or about the year 1924. The plaintiff later arranged forhim to receive a course in mechanical training at the GovernmentTechnical College, and in due course the 2nd defendant obtained employ-ment in the Postal Department. In spite of the improvement in hisstatus, he retained a close connection with the household. In the wordsof the learned judge “ he used to drive a car for the plaintiff and the1st defendant and continued to do odd jobs for them*. He acted as aservant who was grateful to his master and mistress for the help theyhad given him to secure better employment ”.
In 1929 the 2nd defendant was transferred to Avissawella, and fromthat time he lived at the 1st defendant’s house at Kanampella (which isnot far from Avissawella). The evidence shows that he continued,as before, to be of assistance to the plaintiff and the 1st defendant invarious ways. To all outward appearances, his behaviour towards hisformer employers was beyond reproach. When the plaintiff’s motherdied in September 1945, the 2nd defendant was (so the plaintiff admits)of great help in attending to certain details connected with the funeralarrangements. Even in April 1946 he and the plaintiff were jointlyinterested in a land transaction from which the latter hoped to earn acommission.
• .
I must next refer to an incident which ultimately led to the institutionof this action for divorce. The events of 26th October 1945 have beendescribed by the witness Cyril Ekanayake (an apothecary) whosecredibility the learned judge accepted without hesitation.
GRATIAEN J.—Jayasinghe v. Jayasinghe
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Mr. Ekanayake and his wife had been on calling terms with the 1stdefendant ever since the early part of 1945 when he was the GovernmentApothecary of Kosgama (another neighbouring village). He visited herhouse professionally on the morning of 26th October 1945, and foundthat she was suffering from a menstrual discharge which, so she told him,had been delayed by “ about two months ” : she had “ passed clots 5 5when she “ started bleeding profusely ” on the previous day.
Upon this scanty information, and assuming, no doubt, that the 1stdefendant was on terms of normal intimacy with her husband, Mr.Ekanayake formed the opinion that the case was one of “ abortion ”which he defined as “ a discharge of the ovum from the uterus beforetho formation of the placenta and before the beginning of the fourthmonth”. He added in the course of his evidence that he “ would placethe probable date of conception of that foetus as two months or twoand a half months prior to October 26th 1945 ”. He prescribed certainmedicines and told the patient that he would call the District MedicalOfficer in consultation if there was no improvement in her condition bythe next day. But his treatment proved beneficial. She was advised,however, not to exert herself for a fortnight. He does not appear tohave communioated his diagnosis to the 1st defendant at that time.
I would certainly hesitate to decide that there was sufficient materialupon which a Court of Law, exercising jurisdiction in a matrimonialaction, could confidently accept Mr. Ekanayake’s theory that the 1stdefendant had in fact had sexual relations with a man during the monthof August or September 1945. Be that as it may, this incident is thebasis of the plaintiff’s allegation that his wife had committed adulterywith the 2nd defendant “ during the period April to August 1945 ”(issue la). It is important to note that no evidence was offered in supportof his further allegation of adultery at Nawalapitiya “ between 5thFebruary 1946 and 10th March 1946 ” (issue 1&) or “ at Embulgamabetween 10th March 1946 and 10th April 1946 ” (issue lc). Nor wasany issue raised as to whether, as alleged in paragraph 6 of the plaint,the defendants were “ still continuing to commit adultery Thecharge of adultery was therefore confined to the period specified inissue la.
The plaintiff says that on information received from Ekanayake,his suspicion of an adulterous association between the 1st defendantand the 2nd defendant was confirmed in April 1946, but that thereafter(vide paras 4 and 5 of the plaint) he “ continued to live in the same houseas the 1st defendant on her undertaking not to misconduct herself infuture ” ; he later “ failed to break off the intimacy ” and thereforeleft her finally on 30th May 1946.
The institution of this action was delayed until 20th February 1948.On 17th Febrgiary 1949 interrogatories were served on the plaintiffrequiring him to furnish particulars of the acts of adultery on which herelied. On 1st March 1949, before these interrogatories were answered,his proctor made an application to Court to postpone the fixing of thedate of trial “as a reconciliation was possible ”. The 1st defendant’sproctor, however, objected to this proposal, and the action was thereforetaken up in due course.
2*3. N. B 36105 (6/54)
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GRATIAEN J.—Jayasinghe v. Jayasinghe
The learned judge granted the plaintiff a divorce on the ground thatthe 1st defendant had committed adultery with the 2nd (defendant atKanampella “ in or about August 1945 ”, but he decided that there wasinsufficient evidence to establish this charge against the 2nd defendant.
I have come to the conclusion that the decree for divorce against the1st defendant on the ground of adultery cannot be supported, pnd mustbe set aside. . The judgment under appeal is unsatisfactory in manyrespects, but it is unnecessary to consider those matters in detail becauseof a fundamental misdirection as to the standard of proof to be observedby a Court in proceedings for the dissolution of a marriage on the groundthat adultery (or, for that matter, any other matrimonial offence) hasbeen committed by one of the spouses.1
In an action for divorce, the court must be “ satisfied on the evidence ’’that the case of the plaintiff has been proved—section 602 of the CivilProcedure Code. These words have been taken over from section 178of the Supreme Court of Judicature (Consolidation) Act, 1925 of England,and we ought therefore to be guided by authoritative pronouncementsof the English Courts as to their true meaning in the context of divorcelaw. Ceylon’s recent attainment of Dominion status has not affectedthis salutary principle—Cooray v. The Queen 1.' '
In England, it has always been recognised that the same strictnessof proof is required to establish a charge of adultery as in the case of acriminal charge—Churchman v. Churchman 2, Gfinesi v. Ginesi 3, and Growerv. Gower4. In later judicial pronouncements, made particularly byDenning L.J. and with special reference to matrimonial offences otherthan adultery, it was suggested that this long-established principle oughtto be relaxed. But all controversy on this subject has now been broughtto an end by the ruling of the House of Lords in Preston-Jones v. Pres ton-Jones s, and it is now settled law that the words “ satisfied on theevidence ” in the English Act mean that in actions for divorce the Courtmust demand “ the same general standard—proof beyond reasonabledoubt ” as is required to support a conviction in a criminal court. Thereason is that “ the jurisdiction in divorce involves the status of partiesand the public interest requires that the marriage bond shall not be setaside lightly or without strict inquiry ”—per Lord MacDermott.
The ruling in the Preston-Jones case (supra) has equally fixed thestandard of proof required in this country under the provisions of section602 of the Civil Procedure Code. There is no longer room for the earliertheory that in actions for divorce there are various gradations of the•Concept of “ reasonable doubt ” such as Denning L.J. had previouslyrecommended in Baler v. Baler6. Since the Preston-Jones case (supra),attempts to revive the controversy have met with no success—England v.England 7, Galler v. Galler 8. In. divorce, as in crime, ijjie standard ofproof is precisely the same. There is no reason at all to assume that,when the parties are governed by the Roman-Dutch Law, the rule oughtto be relaxed in the slightest degree. If adultery has been committed,
1 (1953) 51 N. L. R. 409 P. C.5 (1951) A. C. 391..
* 1945 P.44.*1951 P.35.
1943 P. 179.7 1953 P.16.
(1950) 1 A. E. R. 804.3 (19§4) 2 W. L. R. 395.
ftRATTABW J.—Jay using he v. Jayasinghe
415
the innocent spouse is not permitted to break off the bonds ofmatrimony by, private authority, but must enter into a civil action forthe dissolution of the marriage, so that, all requisite things having been.•proved the judge himse’f may by his decree order the severance of thenuptial tie ”—Voet 24.2.8.
The decision in the Preston-Jones case {supra) had unfortunately notbecome known in Ceylon at the time that the judgment now under appealwas pronounced. In consequence, the learned Judge’s opinion as tothe requisite standard of proof seems to have been largely influencedby the propositions suggested by Denning L.J. in Bater’s case {supra).At the end of his judgment, he summarised the grounds on which hedecided that the plaintiff’s charges of adultery against' the 1st defendanthad been established to his satisfaction. He said :
"Keeping in mind that a civil court {even in divorce proceedings) doesnot require the same strict standard of proof as a criminal court in a chargeof a similar nature, and that divorce proceedings are of great importanceto the parties (specially on charges of adultery) and to the community,and as such a high degree of proof is required and that this court must besatisfied beyond- reasonable doubt in a matter of such importance, I cometo the conclusion on the evidence as against the 1st defendant that thecharge of adultery with the 2nd defendant in or about August andSeptember 1945 has been proved. ”
This can only mean that, if the learned Judge had adopted the strictstandard of proof which is equally required in matrimonial actions andin criminal cases, he would not have been “ satisfied on the evidence ”that the charges of adultery had been established against either defendant.The words “ beyond reasonable doubt ” have a very clear connotationin the context of criminal law, and must receive the same meaning when-ever the alleged commission of a matrimonial offence is made the groundof a prayer for divorce in matrimonial proceedings. It is quite wrong,therefore, to approach the evidence led in support of a charge of adulteryon the assumption that the standard of proof, though higher than inan ordinary civil suit, falls short of what is necessary to support a convic-tion on indictment in criminal proceedings. The House of Lords hasfinally rejected the theory suggested in Bater’s case {supra) that thephrase “ beyond reasonable doubt ” has an elastic connotation whichvaries with “ the particular subject matter ”, or that “ the divorce .court should not adopt the rules and standards of the criminal court ”. "
The case for the plaintiff was based entirely on circumstantial evidence,and the proper test to be applied was whether the totality of the evidencewhich the learned judge confidently accepted was “ inconsistent with any■other reasonable hypothesis ” than that the 1st defendant had committedadultery—Gower v. Gower 1. The introductory words from the extractof the learned District Judge’s judgment which I have quoted indicatethat, if adultery had been a criminal offence in this country, he wouldhave acquitted the 1st defendant because the evidence fell short of
(1950) 1 A. E.R. 804.
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GRATIAEN J.—Jaya&inghe v. Jayasinghe
“the strict standard of proof” required in criminal eases. It wastherefore his duty to answer issue la in favour of the 1st defendant inthe present action.
The circumstantial evidence relied on by the plaintiff was not, in myopinion, of such a quality that a judge of first instance, having properlydirected himself as to the. standard of proof and in other respects, could,confidently have excluded the hypothesis that the 1st defendant wasinnocent of the serious charge of adultery. According to the plaintiff :
the apothecary has proved that the 1st defendant did have sexual
intercourse with a man about two months before 26th October1945 ;
the plaintiff himself had by that time ceased to have marital
relations with her ;
his own evidence of “ non-access ” during the relevant period was
confirmed by her oral and writteri confessions made to him inApril and May 1946 ;
certain statements which she made to the apothecary and the
Village Headman when they tried to bring about a reconciliationbetween the parties after May 1946 were a,lso tantamount toconfessions.
I shall assume that item 1 was established beyond reasonable doubt,although the 1st defendant’s admission at the trial that a so-called“ abortion ” had taken place might well have been induced by a tempta-tion to fall into line conveniently with the apothecary’s evidence whichwas based on inference.
Items 2 and 3 must necessarily be assessed together. The learnedjudge did not expressly accept the plaintiff’s evidence concerning anoral confession of adultery, presumably because it was not found possibleto reject the suggestion that the subsequent written “ confession ” (P4)was a fabricated document. In that view of the matter, the plaintiff’sevidence of “ non-access ” could not but be regarded as extremely un-reliable. Finally, I take the view that the statements made by the 1stdefendant in 1946 to Ekanayake and the Village Headman were at bestequivocal and did not constitute conduct or behaviour inconsistentwith her innocence. As against this, the court was confronted ■with theimportant circumstance that the 1st defendant had led a chaste life for25 years and there was no evidence against her of any acts of unduefamiliarity with the 2nd defendant.
. The judgment under appeal is also vitiated for another reason. The1st defendant’s lawyers (no doubt for tactical reasons) did not specificallyraise an issue at the trial as to condonation. But having regard to theplaintiff’s own pleadings and to certain portions of Jus evidence, thelearned trial judge was himself put upon inquiry as to whether the allegedadv ltery, even if established beyond reasonable doubt, had been condoned,by the plaintiff after (as he says) he became aware of it in April 1946.
Section 6*02 (1) of the Civil Procedure Code does not entitle an innocentspouse to obtain a decree for divorce on the ground of adultery whichhas subsequently been “ condoned ”, provided^ of course that the
GRATIAjEN J.—Jayasinghe v. Jayasinghe
417
condonation ” has been accompanied by a resumption of “ conjugalcohabitation ’1—section 602 (2)—that is to say, if a reconciliation hastaken place “ by the full restoration of the offending spouse to his or herformer position ”—Bell v. Bell1, Elliot v. Elliot 2.“ Conjugal cohabita-
tion ” can be resumed even without a renewal of sexual intercoursebetween the spouses after reconciliation
“ It is of great importance that the question of condonation should begone into …. and the fact that it is not pleaded must not shutthe judge’s eyes to the necessity of a full investigation ” —per Du ParcqLi.J. in Bertram, v. Bertram3. A decree for divorce is a judgmentin rem, and is not merely concerned with the rights and obligations ofthe parties inter se. The gravity of the issues involved therefore imposesa special obligation on the trial judge whenever there is material “ ofsufficient cogency to raise a provisional presumption of condonation ”which the innocent spouse must displace before he can be granted adivorce on the ground of adultery. If, therefore, the evidence disclosesthat “ the parties had been living together or were re-instated in onehousehold, the judge is put upon inquiry as to whether there has beencondonation or not ”—Tilley v. Tilley 4. Similarly, under the Roman-Dutch law, “ a decree for divorce should not be granted at the suit of ahusband who, knowing of his wife’s adultery, continued to live under
the same roof with herunder circumstances which would justify
the belief that a reconciliation has taken place ”.— Niemand v. Niemand 6.
In this case the plaintiff concedes that he forgave his wife and livedwith her in the same house until 30th May 1946 after he had “ discovered ”in April that she had been guilty of infidelity. He no doubt pleadedthat this temporary reconciliation had been influenced by her “ under-taking not to misconduct herself in future ”, but he withdrew at the trialhis allegation that she had broken her pledge by committing furtheracts of infidelity. In these circumstances, it would perhaps be under-stating the position to say that the facts admitted by the plaintiff merelyraised a “ provisional presumption ” that he had condoned the onlymatrimonial offence which ultimately formed the basis of his actionfor divorce. The learned judge has not directed his mind at all to thisaspect of the case and the judgment under appeal cannot be allowed tostand for this additional reason.
In my opinion, the decree (and the consequential order for maintenancein favour of the plaintiff) must be set aside because (1) the evidencerelied on in support of the allegations of adultery was found by thelearned judge to have fallen short of the strict standard of proof which(in the correct view of the law) ought to be required in proceedings fordivorce, and (2) the learned judge has not found as a fact that “ theprovisional presumption of condonation ” raised by the evidence hasbeen displaced. The trial was incomplete because no inquiry was heldas to whether or not, according to the plaintiff’s own version, “ forgive-ness was confirmed or made effective by re-instatement ” in the monthsof April and May 1946—vide Henderson v. Henderson 6.•
(1909) T. S. 500.(1925) O. P. D. 286.(1944) P. 59.'
(1949) P. 240.(1898) 15 S. C. 217.(1944) A. C. 484.
418
JPonnambalam. v. Kunasingham
Learned Counsel for the appellant made no submissions to us withregard to the first defendant’s counter-claim for a divorceon the groundof malicious desertion. I would therefore set aside the judgment of thelearned judge and dismiss the plaintiff’s action with costs in favour ofthe 1st defendant in both courts. In so far, however, as the 1stdefendant’s claim in reconvention has been refused, the judgment willstand, but there will be no further order as to costs in favour of eitherparty as to that part of the case.
Gunasekaba J.—I agree.
Appeal allowed.