S. W. E. DIAS, Appellant, and MENSALINE HAMINE et al., Respondent

068-NLR-NLR-V-46-S.-W.-E.-DIAS-Appellant-and-MENSALINE-HAMINE-et-al.-Respondent.pdf


S. W. B. Dias and Mensaline Hamine.
193
1945Present: Kenneman and Jayetileke JJ.
S. W. E. DIAS, AppeUant, and MENSALINE HAMINE at al.,
Respondent.
23d—-D, C. Colombo, 6J9.
Divorce—Wife lives in the same house after knowledge of husband's adultery—No proof of condonation—Further proof required of forgiveness andreinstatement of offending spouse.
The fact that a wife after knowledge of her husband's adultery ehareshis bed is not strong or conclusive proof of condonation; still less, thefact that she merely resided in the same house with her husband. Thereshould be, in addition, proof of forgiveness and of the reinstatement of,the offending spouse.
T
HE plaintiff sued her husband the first defendant for divorce on thegrounds—(1) of constructive malicious desertion by him, (2) of
his adultery with a servant woman. The first defendant denied theseallegations and himself claimed a divorce on the ground that the plaintiffhad committed adultery with the second defendant in 1940 and 1942 andthereafter. The District Judge found that the first defendant had com-mitted adultery with the servant woman and dismissed the defendant’sclaim for divorce. The District Judge further held that the plaintiff hadcondoned the first defendant’s adultery, but that his misconduct laterhad revived the earlier condoned adultery. He thereupon entered decreefor divorce in favour of the plaintiff.
N.Nadarajah, K.C. (with him H. W. Jayawardene) for the firstdefendant, appellant.—There is clear evidence in this case that theplaintiff had condoned the first defendant’s adultery. Although thebest evidence of reinstatement is the continuance or resumption ofsexual intercourse there may be a resumption of conjugal cohabitation,sufficient to constitute a reinstatement, without sexual intercourse.Restoration of conjugal cohabitation as distinguished from sexualintercourse will carry condonation with it—Rayden on Divorce (4th ed.)p. 134; Cramp v. Cramp 1; Germany v. Germany-2. In Roman-Dutchlaw, too mere reconciliation is sufficient to establish condonation—Voet 24.2.5; Young v. Young 3; De Hoedt v. De Hoedt *.
The next question is whether a matrimonial offence, ouce it is condoned,can, in Ceylon, be revived by a subsequent offence. The trial Judgehas- held that it can be revived. The common law governing divorcein Ceylon is the Roman-Dutch law—Seneviratne v. Panishamy, et al. 5;he Mesurier v. he Mesurier 6; Karonchihamy v. Angohami et al. 7; Wrightv. Wright 8. The Roman-Dutch law does not recognize such a thing as arevival of a matrimonial offence after a reconciliation has taken place.The reconciliation completely extinguishes the antecedent misconduct,
1 L. B. 1920 p. 158 at 165-6.
(1938) 3 A. E. B. 64.
8. African L. B. (1908) 25 S. C. 428.
(1910) 4 Leader 66.
3 (1927) 29 N. L. B. 91 at 101.• (1895) 1 N. L. B. 160 at 164.7 (1896) 2 N. L. B. 276.
• (1903) 9 N. L. B. 31.
1
N. A 89415(8/50
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<5. W'. E. Diat and Mensaline Haminr.
and any subsequent proceedings for a divorce must be upon a newmatrimonial offence which in itself would entitle the innocent spouseto such relief—Young v. Young {supra) which is directly in point in thepresent case; Sande’s Frisian Decisions 2. 6. 2. Even in English lawthere is no such thing as contigent condonation—Henderson v. Hender-son *. The alleged misconduct of the first defendant subsequent to thereconciliation cannot, jn the present case, be regarded as a matrimonialoffence of such a nature as is sufficient to revive the earlier condonedadultery—Collins v. Collins 27 Empire Digest 135, para. 3174; Hart v.Hart1 * 3 *; Palmer v. Palmer*; Rayden on Divorce (4th ed.) p. 135.
H. V. Perera, K.C. (with him H. Deheragoda), for the plaintiff, respond-ent.—The finding of the trial Judge that there was condonation is notcorrect. Section 602 of the Civil Procedure Code does not containa definition of condonation. The fact that a wife remains in the house,and even permits intercourse, after knowledge of her husband's adulteryis not proof of condonation on her part—Beeby v. Beeby 5 *; Cramp y.Cramp *. The conduct of the plaintiff was one of meritorious for-bearance for the sake of her children. There was neither forgivenessnor reinstatement. The conduct of the first defendant, on the otherhand, amounted to malicious desertion, because he brought about astate of things which made it impossible for the plaintiff to remainlonger with the husband. It is not necessary, for the purpose of thepresent case, to consider whether the doctrine of revival is applicablein Ceylon. If it is applicable, mental cruelty can be regarded as amatrimonial offence— Bostock v. Bostoch 7.
No specific ■ issue regarding condonation was raised at the trial. Theburden is on the plaintiff to show that there was no condonation—Germany v. Germany (supra). The trial Judge should not have cometo any finding on condonation in the absence of an issue and' withoutgiving us an opportunity to lead all evidence on the point. Con-donation, both in English and Roman-Dutch law, involves forgiveness.There is no evidence of any forgiveness in this case. It is submittedthat condonation has not been established in this case and that theplaintiff is entitled to a decree for divorce on the grounds of adultery andmalicious desertion.
Kingsley Herath> for the second defendant, respondent.
N.Nadarajah,K.C., in reply.—Condonation is not a bilateral act.
See judgment of Lord Simon in Henderson v. Henderson (supra).
It is the duty of Court to take cognisance of condonation when it isdisclosed in the course of the case—Section 601 of the Civil ProcedureCode; Apted v. Apted 8; Forshall v. Forshall 9; Howard v. HowardGoode v. Goode-1'; Moosbrugger v. Moosbrugger ,2; Rayden on Divoroe(4th ed.) 137.
Cur. adv. vult.
1 (1944) 1 A. E. R. 44.
L. R. (1884) 9A. C. 205 at 237.
3 (1854-5) 2 Ecc and Adm. 193 at 200.
164 E. R. 914.
3 (1799) 1 Hagg. 789 at 793.
L. R. 1920 P. 158 at 167.
7 (1859) 27 L. J. R. (Prob.) 86.3 L. R. 1930 p. 246.
» /. L. R. 31 AU. 511 at 513.
A. I. R. (1923) AU. 43.
“ 164 E. R. 992.
11 (1918) 29 T. L. R. 715.
KBUNEMAN J.—8. W. B. Dial and Mens aline B amine.
195
March 13, 1946. Reunkman J.—
The plaintiff brought this action for divorce against her husband thefirst defendant on the grounds (a) of constructive malicious desertionby him, and (6) of his adultery with a servant woman, Asilin, in or aboutMay, 1942.
The first defendant replied denying these allegations, and himselfclaimed a divorce on the ground that the plaintiff had committed adulterywith the second defendant between the latter part of 1940 and August12, 1942, and thereafter.
The case went to trial on a number of issues, and the District Judgefound that the first defendant had committed adultery with Asilin inMay, 1942, and dismissed the first defendant's claim for divorce on theground that the plaintiff had committed adultery with the seconddefendant. Both these findings are fully supported by the facts proved,and 1 am satisfied that the conclusions arrived at by the District Judgeare correct and unassailable in appeal.
The District Judge further held that the plaintiff had condoned thefirst defendant’s adultery but that the first defendant’s misconduct laterand more particularly on August 12, 1942, revived the earlier condonedadultery. He entered decree for divorce in favour of the plaintiff againstthe first defendant with costs.
The alleged misconduct of the first defendant consisted in the factthat shortly after he was caught in the act of adultery by the wife, and afterAsilin was sent away from the house, he had written the letter P6 toAsilin and met her twice in the neighbourhood of the office in Maradanawhere he was employed. Qn the second occasion the plaintiff, who hadreceived information, kept watch and caught the first, defendant andAsilin together, and thereafter the plaintiff left the house of her husbandwith her five children.
Counsel for the first defendant addressed to us an interesting argu-ment to the effect that under our law, there can be no recognition • of therevival of an adultery that had been condoned, and that the principleaccepted in the English law had no application in Ceylon. He alsocontended that the facts disclosed did not amount to a matrimonialoffence, and that the question of revival did not arise in this case. Ido not think it is necessary to consider these matters because, ascounsel for the plaintiff argued, the fact of condonation has not beenestablished in this case, and I do not agree with the finding of the TrialJudge that there had been condonation.
In dealing with the law in this connection the District Judge said—“ Our law is codified, and what condonation in a case of adultery amountsto is to be found in section 602 of the Civil Procedure Code. ” He thenproceeded to cite a portion of section 602, .to wit—
“ No adultery shall be deemed to have been condoned within themeaning of this Chapter unless where conjugal cohabitation has beenresumed or continues. ”
The District Judge, thereafter speaks of this as a definition ofcondonation. He considered whether the words “ conjugal cohabi-tion ” included sexual intercourse, and held that mere continuance
198
KE0NEMAN J.—S. W. E. Dias and Mens aline H amine.
of residence in the same house amounted to “ conjugal cohabitation ”although there had been no sexual intercourse.
The District Judge ended as follows:—“ Therefore on the facts,I am bound to hold that the plaintiff has in law condoned her husband’sadultery ”.
I am unable tp agree with the District Judge’s argument. The clausequoted by him can in no sense be regarded as a definition of condonation.On the contrary it sets out only one essential ingredient of condonation,viz., conjugal cohabitation. The clause does not profess to set outwbat the other ingredients are. The District Judge appears to haveheld that if conjugal cohabitation is established, then condonationmust be assumed. That is not the law.
For the purposes of this appeal, I may cite the judgment of MeCardie J.in Cramp v. Cramp 1 where the earlier authorities are reviewed. Thelearned Judge was considering the point whether sexual commerce by ahusband with a wife known to be guilty of adultery is to be deemedconclusive evidence of condonation. He came to the conclusion that•“ a husband who has sexual relations with his wife after knowledge ofher adultery must be conclusively presumed to have condoned her offence.That is the rule of righteousness and I am glad to think it is the rule oflaw. ” But he made this very significant observation:
” I find that the authorities draw a clear distinction between a wifewho permits intercouse after knowledge of her husband’s adulteryand a husband who has intercouse with his wife after he is aware of herinfidelity. As to condonation by a wife, Sir Cresswell Cresswell inKeats v. Keats and Montezuma 2 says:‘ With reference to a wife, to
whom a knowledge of her husband’s adultery has been brought home,and who has yet continued to share his bed, the rule has not been sostrict. The wife is hardly her own mistress; she may not have theoption of, going away; she may have no place to go to; no person toreceive her; no funds to support her; therefore her submission to theembraces of her husband is not considered by any means such strongproof condonation as the act of a husband in renewing his intercoursewith his wife. ’ This passage illustrates the view that the wife, may bethe passive rather than the active agent in the matter in question. It isin conformity with the older cases of D'Aguliar v. D'Aguliar 3, Durant v.Durant * and Turner v. Turner s. “ The point was concisely put by LordStowell in Beeby v. Turner *:“It would be hard if condonation by implica-
tion was held a strict bar to the wife. It is not improper she should showa patient forbearance; she may find a difficulty either quitting hishouse or withdrawing from his bed. The husband on the other handcannot be compelled to the bed of, his wife; a woman may submit tonecessity. When a woman therefore submits to her husband’s em-braces, it is only evidence, strong indeed at the present day, but notnecessarily conclusive of condonation:see per Dr. Lushington in
/Snow v. Snow 7 and per Lord Penzance in Newsome v. Newsome “.
1(1920) Probate Division 158.5 (1854) 2 Spinks 201 m.
,*1 Sto. and Tr. 334, 347.• 1 Hogg. Ec. 789, 795.
‘31 Bagg. Ee. 773.’ 2 Notes of Cases, Supp.XIII.
•(1825, 1925) 1 Hogg. Ec.733.* (1871) L. E. 2p and M.306.
KEUNEMAN J.—8. W. B. Dias and Mensaline Homme.
197
Now if the fact that a wife, after knowledge of her husband's adultery,shares bed is not strong or conclusive proof of condonation, thefact that she had merely resided in the same house with the husband mustbe weaker still. There should be in addition. proof of forgiveness and ofthe reinstatement of the offending spouse. No doubt where the hus-band after knowledge of the wife’s adultery shares her bed the lawpresumes condonation, but this is a special rule applicable to the hus-band, and not to the wife in similar circumstances.
The facts on which the allegation of condonation is based in this caseare very meagre. Unfortunately no issue of condonation was raised.It was no doubt open to the District Judge to raise that question, butthe framing of an issue was desirable though perhaps not imperative,so that the parties should be made aware of the point on which theDistrict Judge intended to find. In the present case it is difficultto say whether the parties knew that condonation was really in issue,until the later stages. of the case.
In one passage the plaintiff talked of the episode in May when thefirst defendant and Asilin were caught in the act of adultery, and added—“ The next morning I sent her away. After that I continued to livewith my husband and we lived as man and wife …. I did itfor the sake of the children ”. In cross-examination she said:“ On the
next day I sent Asilin out. I sent her out after first defendant went to
work. He was very angry when he came in the evening
Thereafter I made up and we lived as husband and wife till August 12,when I left ”.
It is significant that no question was put to plaintiff as- to whetherthere had been intercourse after the adultery was known. The firstdefendant said that there was no such intercourse, but asserted it wasbecause the plaintiff was sick. On the facts I think I must hold thatthere was no intercourse. There is no evidence that the first defendantwas penitent and asked or was granted forgiveness. His letter writtento Asilin within a few days shows that he was not penitent. No acts arespoken to from which forgiveness or reinstatement of the offendinglusband can be presumed. The District Judge has correctly put theposition as follows :—“ Plaintiff says that she decided to take no actionfor the sake of the children and also as she hoped to redeem her husbandand start life afresh ”.
The defendant in his evidence mentioned no facts from whichcondonation may be presumed.
The evidence certainly shows forbearance on the part of the wife,but in my opinion it falls far short of showing forgiveness or reinstate-ment of the husband. The only solid fact that emerges is .that thehusband aD^ wife lived together in the same house for a few months.Some emphasis was laid by counsel for appellant on the phrase ofplaintiff—“ thereafter I made up ”, but no attempt was made to obtainany details concerning the “ making up ”, and in considering what itconsisted of we are left to sunrise.
In all the circumstances I' do not think the District Judge was justifiedin finding that the plaintiff condoned the adultery of the first defendant.
198
DIAS, COMMISSIONER OF ASSIZE.—The King v. Nadarajah.
Id consequence it is unnecessary for me to consider the other interesting
questions which were raised in the appeal.
The appeal is dismissed with costs.
Jayetileke J.—I agree.
Appeal dismissed.