043-NLR-NLR-V-61-K.-SINNATHAMBY-Appellant-and-YOKAMMAH-Respondent.pdf
Sinnathamby v. Yokammah
isa
1358 Present: H. N. G. Fernando, «?., and T. S. Fernando, J.K.SINNATHAMBY, Appellant, and Y OK AMMAH, Respondent8. O. 396—D. C. Jaffna, 154jD
Divorce—Action instituted by wife—Alimony pendente Iite—failure of husband topay it—Can Court refuse to hear defence ?—Civil Procedure Code, se. So, 109, 839.
When, in divorce proceedings instituted by a.wife, an order for tbs paymentof alimony pendente Hie is flouted by the husband, the Court has no power tostrike out the defence and to place the defendant-husband in the same positionas if he had not appeared.
PPEAL from a
judgment of th*> District Court, Jaffna.
G. PanganatJian, for the Defendant-Appellant.
8. Sharvananda, for the X'laintiff-Respcndont.
Gar. odv. vuU.
1
{1957) 53 N. L* J?. 479.
194
H. 1ST. G. FERNANDO, J.—SdnncUhamby v. Yokunvmah
December 5, 1958.- H. N. G. Eebjia^tdo^-J.——
The plain biff, who ia the wife of the defendant, instituted this actionfor divorce on the grounds of malicious desertion. The defendant in his•answer alleged that the plaintiff had committed adultery and asked onthat ground for a decree of judicial separation. On 25th February 1957the parties agreed upon alimony 'pendente lite at the rate of Its. 25 permonth and order for alimony was made accordingly. The case was fixedfor trial on several dates, and on 24th July 1957 arrears of alimonyamounting to R.s. 100 were paid in Court.
The case was ultimately taken up for trial on 9th March 1958. Onthat day Counsel for the plaintiff stated that the defendant had failedto pay alimony for a period of eleven months, and moved to lead evidenceto show that the defendant had the means to pay the alimony and calledthe plaintiff as a witness for the purpose. After a brief examination ofthe plaintiff, Counsel for the defendant moved “ that the defendant hegiven some time, at least one hour, to find the money to pay the alimony
Objection to the grant of time having been taken, the District Judgeheld that the alimony was in arrear and he made order striking off the•defence. Thereupon the plaintiff's Counsel framed the relevant issuesonly on the question of malicious desertion, and the District Judgeproceeded to hear the case ex parte and thereafter entered decree for•divorce. The present appeal is against that judgment and decree.
At the trial the plaintiff relied on the decision of this Court in AsilinMona v. Peter Perera 1. In that case, the plaintiff husband had failed topay alimony even though the wife had already a writ in her hands for therecovery of the amount due. On the trial date application was made on"behalf of the wife that the Court should stay the hearing of the action"until the alimony was paid.
The District Judge refused that application on the ground that no suchpower was conferred by the Code. In appeal however the order refusingthe application to stay proceedings was set aside and the case wasremitted to the District Judge, firstly to consider whether the husbandhad refused to pay the alimony uhile being in possession of the means topay, and secondly to exercise his discretion to stay the action until thepayment of the alimony.
Keuneman J. in Asilin Nona v. Peter Perera1 referred to the Englishcase of Leavis v. Leavis 2. In that case the wife filed a petition for resti-tution of conjugal lights. Orders were thereafter made against thehusband for the payment of taxed costs, for security pending the suit,and for alimony. The husband failed to comply with these orders andwhile in default took out summons under the Divorce Rules to stay the suiton the ground that he was willing to return to cohabitation. A preli-minary objection to the hearing of this summons was taken on behalf of
» {1945) 46 N. L. It. 109.
!£.i. 1931 Probate 999.
TT. 3T. G. FERNAjSIDO, J.—Sinnathamby v. Yo/cammah
185-
the wife, on the ground that the husband was in contempt. This objectionwas upheld by the Court and the summons to stay the suit was dismissed.In Cooper v. Cooper1 a wife who had sued for judicial separation on theground of cruelty subsequently returned to her husband. When thehusband moved for the dismissal of the wife's petition, on the ground of areturn to cohabitation, the wife did not oppose the application for dis-missal but only asked for costs. The Court ordered that the applicationhe dismissed upon payment of the wife’s costs.
In P. V. P. and T. a, which was also referred to by Keuneman J.,the Court ordered a stay of a husband’s petition for divorce until thehusband paid arrears of alimony pendente lite. In Chappell v. Chappellathe wife had obtained a decree nisi for dissolution. Nine months afterthe decree nisi the husband moved to have the decree made absolute.It was contended that although the husband had a right to so move,his motion should be dismissed because he was in arrear in the matter ofalimony and costs. The Court, while being of opinion that his contemptwould debar the husband, dismissed the motion on another ground,namely that on the facts, the case was not one in which the discretion,of the Court to enter decree absolute should be exercised.
The English cases to which I have referred all appear to be based on theprinciple that a husband is in contempt if by failing to comply with anorder for the payment of alimony he deprives his wife of the means tocany on the litigation. In the Ceylon case Keuneman J. did not holdthat the power to stay proceedings flows from the contempt, and theground of his decision was that contempt may be regarded as an abuse ofthe process of the Court, thereby bringing Section 839 of the Civil Pro-cedure Code into operation. That Section preserves the inherent powerof the Court “ to make such orders as may be necessary for the ends ofjustice or to prevent abuse of the process of the Court ”. With respect Iagree that an order staying proceedings conditionally is one eminentlywithin the scope of such an inherent power. If the Court is judiciallysatisfied that an order for the payment of alimony has been flouted by aplaintiff husband despite the fact that he has the means to comply withit and that thereby the wife is deprived of the means to contest the action,then an order staying the hearing of the action effectively prevents theabuse of the process of the Court, because the husband is thereby com-pelled to comply with the alimony order if he desires his action to be tried.There is no question of any denial of justice, for the plaintiff in such acase can secure that trial is held merely by making the payment whichit is within his power to make.
The present case is in my opinion clearly distinguishable. To strikeout the defence is to expel the defendant from the action : it is to punish,rather than to prevent, abuse, for it does not operate to enforce or secure
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1 English Reports 164 at page 1327.
3 (1910) 26 T. L. B. 607.
3 (1938) 4 A. E. B. 814.
186
Sinna Gura v. Inspector of Police, KarawaneUa
defence is to place the defendant in the same position as if he had notappeared, and thus to bring into operation the pro-visions of Section 85under -which an ex parte- trial is held. One provision in the Code, to whichwe have been referred, which empowers a Court to strike out a defenceis that in section 109 which takes effect upon a failure to comply with anorder to answer interrogatories, or for discovery, production or inspection.Although this same section provides that such a failure constitutes acontempt, yet the power to strike out the defence is expressly conferred.
An order dismissing a plaintiff’s action, or striking out a defence, hasthe effect of either a final termination of the proceedings or of finallyrefusing to hear a party. It is donbtful whether such an order can bemade by virtue of inherent as opposed to express power. In any eventwe have not been referred to anj precedent in Ceylon or in England forsuch an order being made in the event of the failure by a husband tocomply with an order for the payment of alimony.
For these reasons I would- set aside the judgment and decree enteredby the District Judge and remit the case for trial. Ib will be open to theplaintiff to make any such application as she may be advised to make forthe purpose of enforcing the order for alimony, but the District Courtwill not again strike out the defence, as a means of enforcement. Therewill be no order as to tbe costs of this appeal or of the past proceedingsin the lower Court.
T- S. Febst-ahtoo, J.—I agree.
Case remitted for trial.