1-TENNEKOON v. SOMAWATHIE PERERA alias TENNEKOON

010-SLLR-SLLR-1986-V-1-TENNEKOON-v.-SOMAWATHIE-PERERA-alias-TENNEKOON.pdf


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Sri Lanka Law Reports
(19861 1 SriL.R.
TENNEKOON
v.
SOMAWATHIE PERERA alias TENNEKOON
SUPREME COURT.
SHARVANANDA. C.J.. COUN-THOME. J„ RANASINGHE. J.. TAMBIAH. J.AND DE ALWIS. J.
S.C. APPEAL No. 51/84.
C.A. No. 287/79 (F).
D C. COLOMBO No. 10740/D.
SEPTEMBER 18 AND 19. 1985.
Divorce – Seven-year separation – Summary Procedure – Section 608 (1) and (2) ofthe Civil Procedure Code – Has matrimonial fault to be proved even where there hasbeen a seven-year separation ? Marriage Registration Ordinance.
Held-(Tambiah. J. dissenting) :
The words 'either spouse" in section 608(2) of the Civil Procedure Code must beunderstood as referring only to the innocent spouse for the purpose of the relief ofdivorce under section 608(2) (a) or section 608(2) (6) of the Civil Procedure Code.
It is incumbent on a spouse seeking a divorce under section 608(2) of the CivilProcedure Code on the ground of separation for a period of seven years to establishmatrimonial fault. Only a procedural change enabling summary procedure to be usedinstead of a regular action was effected by section 608(2) of the Civil Procedure Code.
Muthuraneev. Thuraisingham {1984) 1 SRI L.R. 381 overruled.
Cases referred to:
Muthuraneev. Thuraisingham [ 1984] 1 SriL.R. 381.
Keerthiratne v. Karunawathie (1938) 39 NLR 514. 575. 516.
Joseph v. Joseph (1940)42 NLR 119.
National Assistance Board v. Wilkinson [1952] 2 Q.B. 648.
R. v. Sheen 28 L.J.M. 9..
Kish v. Taylor [1911] 1 K.B. 625. 634.
7 Plumstead Board of Works v. Spackman [ 1884] 13 Q.B.D. 878.
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Tennekoon v. Somawathie Perera
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Re Brocklebank [1889] 23 Q.B.D.461.
Quebec Railway v. VandryAIR 1920 P.C. 181. 186.
Orr v. Orr (1920) 22 NLR 57.6.1.
Frugtneit v. Frugmeit (1941) 42 NLR 54 7.
Chapman v. Chapman [1972] 2 All E.R. 1089.
Krugerv. Kruger [1980] 3 S.A.L.R. 283.
Ebert v. Ebert (1939) 40 NLR 388.
APPEAL from judgment of Court of Appeal ([ 1 984] 2 SLR 217).
Eric Amerasinghe, P.C.. with D. R. P.Goonetileke for the plaintiff-appellant.
R. S. R. Cumaraswamy. P. C. with Prins Gunasekera and R. K. Suresh Chandra for thedefendant-respondent.
Cur. adv. vult.
January 31,1 986.
SHARVANANDA, C. J.
.The plaintiff-appellant instituted this action by way of.^dtfTmoniiprocedure against his wife praying for a .d^&-aratio[;amensa eton the sole ground theysh^ribr to the institution of the action, inJo°rp?sfcorasecrtTon 608(2) of the Civil Procedure Code. Thedefendant-respondent filed answer denying that they lived inseparation. After trial the trial Judge rejected the evidence of thedefendant and entered judgment for the plaintiff as prayed for in hisaction. From the said judgment the defendant appealed to the Courtof Appeal and that court by its judgment dated 5.9.84 set aside thejudgment of the trial court and dismissed the application of the plaintiffwith costs in both courts. The-Court of Appear granted leave to theplaintiff to appeal to this court on the following questions of law:-
whether separation a mensa et thoro for a period of 7 yearsconstitutes a valid ground for divorce under section 608(2) ofthe Civil Procedure Code, and
if not, whether it is incumbent on the petitioner seeking a divorceunder that subsection on such ground to establish a matrimonialfault on the part of the respondent to such separation.
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Since the judgment appealed from is in conflict with the judgment ofanother Bench of that court in Muthuranee v. EliyaiambyThLiraisingham (1) this appeal was referred to a Bench of five judgesfor a final decision of the conflict in the interpretation of section608(2) of the Civil Procedure Code.
Admittedly the marriage between the parties was one that wascontracted under the provisions of the Marriage RegistrationOrdinance (Cap. 1 12) which is commonly referred to as Marriage(General) Ordinance. The preamble of this Ordinance states:
"that it is an ordinance to consolidate and amend the law relatingto marriages other than the marriage of Muslims and to provide forthe better registration thereof."
Section 19 of the Ordinance provides as follows –
No marriage shall be dissolved during the lifetime of the partiesexcept by judgment of divorce a vinculo matrimonii pronouncedin some competent court.
"i
subseql^n?nt shall be founded either on the ground of adultery
incurable impotencyaf?i,or mallC/ous desertion, or of
’'“nh marriage.
(m) Every court in Ceylon having matrimonial jurisdiction is ,1Clodeclared competent to dissolve a marriage on any such ground
Section 597 of the Civil Procedure Code provides that.
"Any husband or wife may present a plaint t0 a District Court
within the local limits of the jurisdiction of which he or she. as thecase may be. resides, praying that his or her marriage may bedissolved on any ground for which marriage may. by the lawapplicable in Ceylon to his or her case, be dissolved "
"Our common law of divorce is based on the 'guilt' and not on the
marriage breakdown' principle Adultery and malicious
desertion are breaches of the fundamental obligations flowing fromthe marriage contract, for it is of the essence of the marriagerelationship that the spouses should adhere to each other, being
physically and spiritually 'one flesh' "-The South African
Law of Husband and Wife-Hahlo-pp. 349-350
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Tennekoon v. Somawathie Perera (Sharvananda. C.J.j
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Section 596 of the Civil Procedure Code specifies the procedure inmatrimonial actions. It provides-
"ln all actions for divorce a vinculo'matrimonii, or for separation amensa et thoro, or for declaration of nullity of marriage, thepleadings shall be by way of plaint and answer, and such plaint andanswer shall be subject to the rules and practice by this Ordinanceprovided with respect to plaints and answers in ordinary civilactions, so far as the same can be made applicable, and theprocedure generally in such matrimonial cases shall (subject to theprovisions contained in this, Cap.XLII) follow the procedure hereinbefore set out with respect to ordinary civil actions."
The pleadings in matrimonial actions are by way of plaint and answerand the procedure in such action is regular procedure and notsummary procedure.
The grounds for a divorce are a matter of substantive law and are asspecified in the aforesaid section 19 of the Marriage (General)Ordinance.
The grounds for judicial separation are:-
(a) that further cohabitation with the defendant has becomedangerous or intolerable for the plaintiff,
{b) that the state of affairs was brought about by the unlawfulconduct of the defendant.
To be unlawful the conduct need not amount to a breach of thecriminal law. It is sufficient that the defendant has committed somematrimonial offence or breach of the conditions underlying the statusof marriage. "Adultery and malicious desertion, being grounds fordivorce are also grounds for the lesser remedy of judicial separation."Keerthiratne v. Karunawathie (2).
A judicial separation may be prayed for by the plaintiff even wheregrounds for. a divorce a vinculo matrimonii exist. The court cannot, insuch a case, give more than a judicial separation. Judicial separationmay therefore be decreed even where there is evidence of adulterysubsequent to marriage, or of malicious desertion and also when forother .reasons the continuance of the cohabitation would becomedangerous or unsupportable. So that judicial separation may bedecreed on account of cruelty or protracted differences or for grossdangerous and unsupportable conduct on the part of the defendant.-Vide Keerthiratne v. Karunawathie (supra).
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Judicial separation in the words of Professor Hahlo:
"Is a half-way house between marriage and divorce. A decree ofjudicial separation does not dissolve the marriage tie. but puts, forthe time being, an end to the personal consequences of marriage bysuspending the reciprocal duty of the spouses to live together."
Section 608 (1) of the Civil Procedure Code provides as follows:
"Application for a separation a mensa et thoro on any ground onwhich by law applicable to Ceylon such separation may be granted,may be made by either husband or wife by plaint to the District Court,within the local limits of the jurisdiction of which he or she, as thecase may be. resides, and the court, on being satisfied on due trialof the truth of the statement made in such plaint, and that there isno legal ground why the application should not be granted, maydecree separation accordingly."
A court cannot enter a decree for separation a mensa et thorou^sed entirely on the consent of parties – Joseph v. Joseph (3)
Act No. 20 ot 1Q7 7 amended the section 608 as it originally stoodin the Civil Procedure Code by the renumbering of the above provisionas section 608 (1) and by inserting the following new subsection assection 608 (2) —
"Either spouse may –
after the expiry of a period of two years from the entering ofa decree of separation under subsection (1) by a DistrictCourt, whether entered before or after the relevant date, or
notwithstanding that no application has been made undersubsection (1) but where there has been a separation amensa et thoro for a period of seven years.
apply to the District Court by w^y of summary procedure for adecree of dissolution of marriage, and the court may. upon beingsatisfied that the spouses have not resumed cohabitation in anycase referred to in paragraph (a) or upon the proof of the mattersstated m an application made under the circumstances referred to inparagraph (b) enter judgment accordingly. .."
It is on the construction of section 608 (2) that rival submissionshave been made by counsel for the appellant and counsel for therespondent.
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Tennekoon v. Somawathie Perera (Sharvananda. C.J.)
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Counsel for the plaintiff-appellant submitted that the words "eitherspouse" connoted either spouse irrespective of whether the spousewas the guilty spouse or the innocent one and that section 608 (2) (b)stipulated that where there has been a separation a mensa et thoro fora period of 7 years either husband or wife will'be entitled to a decreefor divorce, regardless of the existence or not of grounds for adissolution of marriage for which section 19 of the Marriage (General)Ordinance mandated a court competent to dissolve a marriage.According to counsel, the fact of separation for 7 years will besufficient ground by itself, under section 608(2)(£>) of the CivilProcedure Code, to found a decree for dissolution of marriage and itwill be irrelevant for the court to inquire into who is responsible for theseparation. He urged that the seven-year period of separation is a newstatutory ground for divorce. He admitted that a more fitting place forthis new ground of dissolution is section 19 of the Marriage (General)Ordinance, which contains the substantive law relating to dissolutionof marriage, but he submitted that though this new ground of divorceis out of place in a code relating to procedure of actions, nothingprevents the legislature from enacting substantive law in a code ofprocedure.
The preamble to the Civil Procedure Code states that it is anordinance to consolidate and amend the law relating to the procedureof the civil courts. The code is primarily a procedural enactment; itprescribes the procedure that has to be followed in a civil court-in theadjudication and enforcement of substantive rights between parties toa civil suit. Section 7 provides that the procedure of an action may beeither "regular" or "summary". Section 8 enjoins that every action shallcommence and proceed by a course of regular procedure save andexcept actions in which it is specially provided that proceedings maybe taken by way of summary procedure. It is to be noted that as ageneral rule the procedure in matrimonial actions is regular procedure(section 596). Section 608(1) re-affirms this rule with respect toapplications for a separation a mensa et thoro.
But the amended section 608(2) departs from the general rule andstipulates summary procedure for obtaining a decree of divorcefounded on separation a mensa et thoro. The submission of counselfor the respondent is that the amended section 608(2) seeks only toalter the procedure for obtaining a dissolution of marriage founded ona decree of separation a mensa et thoro. under section 608(1) or onthe fact of separation a mensa et thoro for a period of seven years. He
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discounted the suggestion that section 608(2) enacts substantivelaw. He contended that the mere fact of separation a mensa ei thorofor a period of seven years has not been constituted a ground ofdivorce by section 608(2)(b). He argued that in the scheme ofsections 608(1) and (2). the applicant for divorce should prove (a)that he/she had obtained a decree for judicial separation under section608(1) or (2) that there are grounds on which by the law applicable toseparation a mensa et thoro a decree for such separation may begranted io him/her and that there had been such separation for aperiod of seven years. He submitted that this new provision for divorceunder section 608(2) is in conformity with the common law andharmonises with the 'guilt' principle which pervades our law ofdivorce. He said that the construction contended for by counsel forthe appellant introduced a new element in our law of divorce which isalien and opposed to the 'guilt' doctrine; in that, it enables a guiltyspouse to sue for divorce on the ground of separation for seven yearswhich separation he/she had brought about by his/her unlawfulconduct. He said that that new ground enables the guilty spouse totake advantage of his/her own wrong.
Counsel for the respondent added that the breakdown principle, onwhich the English Matrimonial Causes Act 1973 is based does notmake irrelevant the conduct of the guilty spouse in granting a divorce.The English Act enables the court to grant a divorce on the groundthat the marriage has broken down irretrievably as evidenced by thelact that the parties have lived apart for a continuous period of fiveyears immediately preceding the presentation of a petition for divorce.It however provides that-
"the respondent to a petition for divorce m which the petitioneralleges five years separation may oppose the grant ol a decree onthe ground that the dissolution of the marriage will result in gravefinancial or other hardship to him and that it would in all thecircumstances be wrong to dissolve the marriage", and it mandatesthe court “to consider all the circumstances, including the conductol the parties to the marriage, all the interests of those parties andof any children or other persons concerned, and that if it is ofopinion that the dissolution of the marriage will result in gravefinancial or other hardship to the respondent and that u would in allthe circumstances be wrong to dissolve the mainage it shall dismissthe petition."
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Tennekoon v. Somawathie Perera (Sharvananda, C.J.)
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Counsel for the respondent pointed out that section 608(2) doesnot direct the court to take account, of the considerations obligated bythe English provisions before dissolving the marriage.
In my view, though the submission of counsel for the appellant is notwithout force, on the whole I would prefer to accept the constructionof counsel for the respondent, even though it would involve writinginto section 608(2) words qualifying the spouse who could make theapplication under that section.
Section 608(1) specifically requires that the party applying for ajudicial separation must establish a ground on which by the lawapplicable thereto, such a separation may. be granted: The onus is onthe plaintiff to show that the cohabitation has become dangerous orintolerable owing to the unlawful conduct of the defendant. A decreefor judicial separation will not be granted where the plaintiff, refuses tocohabit for reasons other than the defendant's alleged unlawfulconduct.
Section 608(2) has to be read with section 608(1), and not inisolation as an independent section’. It derives its- colour from theearlier section 608(1). Both sections seek to give relief to the spousewho is entitled to sue for a decree of separation a mensa et thoro orwho has sued and obtained such a decree:
taken out of context section 608(2) may appear to entitle eitherspouse, whether guilty or innocent, to make the application undersection 602 (a) or (b) but the section has got to be read in the contextof the concept of judicial separation and of section 608( 1). Taken inthat context it is only the innocent spouse who can be identified as the"either spouse" referred to in section 608(2) for the purpose of therelief of divorce under section 608(2) (a) or section 608(2) (b).
It is to be noted that the grounds for the grant of-a decree for judicialseparation are not the same as for. the grant of a decree for divorce.The ground for grant of judicial separation is that the cohabitation hasbecome dangerous or intolerable to the plaintiff as a result of thedefendant's unlawful conduct. On the other hand, the grounds fordivorce are, as stated earlier, adultery, malicious desertion andincurable impotency at the time of the marriage. There is sense andjustice in entitling the innocent spouse who has obtained a decree forjudicial separation to enlarge that decree into a decree for dissolution
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of marriage, after expiry of a period of two years from the entering of adecree of separation; or in granting decree for divorce to an innocentspouse who had lived in separation a mensa et thoro for seven years,but had not made an application for a decree for judicial separationunder section 608(1) even though entitled to do so.
In resolving the question what is a proper construction of section608(2) the following relevant principles of construction have to beborne in mind:-
There is a presumption that Parliament does not intend to makea radical change in the existing law by a side wind.
As Lord Delvin said:
"It is a well established principle of construction that a statute isnot to be taken as effecting a fundamental alteration in the generallaw unless it uses words that point unmistakably to thatconclusion"-National Assistance Board v. WHkinson(A).
The principle that the innocent spouse alone is entitled to a divorceor judicial separation is deep-seated in our jurisprudence. I think if it isto be superseded it should be overtaken by a clear definite and positiveenactmont. not by an ambiguous one such as section 608(2) reliedupon by the appellant.
The golden rule of interpretation is that the words of a statutemust prima facie be given their ordinary meaning. The courtmust not shrink from interpretation, which will reverse theprevious law. Judges are not called upon to apply their notionsof good policy so as to modify the plain meaning of statutorywords; but, where, in construing general words the meaning ofwhich is not entirely plain there is good reason for doubtingwhether legislature could have been intending so wide aninterpretation as would disregard fundamental principles, then acourt may be justified in adopting a narrower construction. It isto be taken as a fundamental principle, standing as it were onthe threshold of the whole subject of interpretation, that theplain intention of the legislature as expressed by the languageemployed is invariably to be accepted and implemented,whatever may be the opinion of the Judge of its wisdom orjustice. A sense of possible injustice of an interpretation oughtnot to induce a judge to do violence to well settled rules ofconstruction but it may lead to the selection of one rather thanthe other of two reasonable interpretations A statute must begiven effect to whether the Judge likes it or not
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"Whenever the language of a legislature admits of twoconstructions and, if construed in one way, would lead to obviousinjustice, the courts act upon the view that such a result could nothave been intended, unless the intention had been manifested inexpress words. It is a cardinal rule, governing the interpretation of•statutes that when the language of the legislature admits of twoconstructions, the court should not adopt a construction whichwould lead to an absurdity or obvious injustice." R. v. Sheen (5) (perLord Campbell).
On the general principle of avoiding injustice any construction will,if possible be rejected (unless the policy of the'Act required it) if itwould enable a person by his own act to impair an obligationwhich he had undertaken or otherwise to profit by his own wrong- Maxwell on Interpretation of Statutes, 12th Ed. at page 212-
"A man may not take advantage of his own wrong. He may notplead in his own interest, a self-created necessity." Per FletcherMoulton, L. J.. Kish v. Tayloi‘ (6).
Bearing in mind the above principles of construction of a statute Icannot persuade myself to accept the construction contended for bycounsel for the appellant that the basic words "either spouse may" insection 608(2) includes the spouse whose unlawful conduct broughtabout the separation. This construction will enable the guilty spouse totake advantage of his. own wrong (which brought about thisseparation) to achieve what he wanted, namely dissolution of themarriage.
It is to be noted in this case the plaintiff-appellant bases his actionfor dissolution of marriage only on the ground of seven yearsseparation. In the issues raised by the counsel for the plaintiff theconduct of the defendant is not put in issue. The parties have fourchildren by this marriage. For no fault of the defendant, the plaintiff isseeking to divorce her. In Muthuranee v. Thuraisingham (supra) inwhich Tambiah, J,, held that seven years of separation simpliciter wassufficient to ground an action, for divorce, the defendant's wiferesisted an earlier action of the plaintiff-husband for divorce, on theground that it was the plaintiff who maliciously deserted her and herdaughter and was living in open adultery with one Cecilia, by whom hewas having two children. Then the plaintiff withdrew that action andfiled the present action praying for a decree of dissolution of marriageon the ground that they have been separated for a period of 7 years.
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Here was a case where the husband was unquestionably the guiltyparty who deserted his wife and lived in adultery with another womanfor 7 years and yet he was held entitled to divorce his innocent wife.The injustice inflicted on the innocent spouse is manifest. Thisconsequence is the inevitable result of the interpretation of section608(2) contended for by counsel for the appellant. To adopt thewords of Brett, M. R.. in Plumstead Board of Works v. Spackman(7):
"If that is the true interpretation of the statute – if there are nomeans of avoiding such an interpretation of the statute – a Judgemust come to the conclusion that the legislature by inadvertencehas committed an act of legislative injustice ; but to my mind aJudge ought to struggle with all the intellect he has and with allvigour of mind that he has. against such an interpretation of an Actof Parliament and unless he is forced to come to a contraryconclusion, he ought to assume that it is impossible that thelegislature could have so intended."
"Where the legislature has used words in an Act which, ifgenerally construed, must lead to palpable injustice andconsequences revolting to the mind of any reasonable man. thecourt will always endeavour to place on such words a reasonablelimitation on the ground that the legislature could not have intendedsuch consequence to ensue unless express language in the Act orbinding authority prevents such limitation being interpolated in theAct – Re Brocklebank (8).
It is shocking to judicial conscience that a party who defies the morallaws can obtain a divorce on the ground of his own matrimonialoffence of malicious desertion. It is inconceivable that a responsiblelegislature would have intended, by enacting section 608(2). to lendits sanction t'o such proceeding. Even English law which recognisesthe breakdown of marriage as a ground for granting divorce mandatesthe taking into account, inter alia, the conduct of parties to themarriage in exercising its discretion to grant a decree for divorce Onthe interpretation of counsel for the plaintiff-appellant the conduct of adelinquent petitioner is irrelevant in the matter of granting a decree fordivorce even though the separation for seven years has been broughtabout by such conduct. The consequences of this interpretation isrevolting to the mind of any reasonable man This interpretationdestabilises the institution of marriage and undermines the moral andsocial foundation of our society.
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It is significant, that section 608 (2) (b) opens with the words"notwithstanding that no application had been made under subsection(1)". If appellant's submission represents the correct construction theclause "notwithstanding that no application had been made undersubsection (1) would be superfluous and serves no purpose, for onthat construction a separation for seven years simpliciter entitles aspouse to a divorce. In my view the'presence of these words in thissection tends to show that 608(b) has a link with section 608(1). Astatute ought to be so construed that no part of it shall be treated as asurplusage. An interpretation which renders any provision of the Actredundant should be avoided. Effect must be given, if possible to allthe words used in the statutory provision for the legislature is deemednot to waste its words or to say anything in vain -Quebec Railway v.Vandry (9) – per Lord Sumner.
In my view the phrase "notwithstanding that no application is madeunder subsection' (1)" gives ah insight into the mind of the legislature.Applications under subsection 608(1) for'a judicial separation can bemade only by the innocent spousev A spouse who is responsible forthe separation because of his unlawful conduct cannot apply forjudicial separation. Hence section 608 (2) (b) will appear to ensurethat, even though the innocent spouse had not chosen to apply for ajudicial separation, that circumstance will not bar that spouse fromclaiming a divorce on the ground of separation for 7 years. Thisconstruction fits into the scheme of the law. Where the innocentspouse has applied for decree of separation and obtained it, thenhe/she could move for a dissolution of the marriage after the expiry ofa period of two years from entering of the decree for separation. But,where the innocent spouse has failed to apply under section 608(1)for decree of separation though entitled to and had thus failed toobtain a decree of separation to entitle him/her to avail of the provisionof section 602(2)(a) to have the marriage dissolved, even then, ifthere had been separation for a period of seven years, then also,he/she will be able to apply for dissolution of marriage.
I agree with the following reasoning of Atukorale. J. in the judgmentappealed from:
"This subsection 608(2) enabled, for the first time, either spouseto apply to the appropriate District Court by way of summaryprocedure for a decree of dissolution of the marriage withoutproceeding by way of plaint in the course of regular procedure. Italso prescribed in paragraphs (a) and (b) aforesaid the
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circumstances under which such an application by way of summaryprocedure may be made by either spouse. The circumstancesspecified in paragraph (a) or (b) must be shown to pre-exist before aspouse can have recourse to summary procedure for the dissolutionof his or her marriage. In the instant case the circumstances set outin paragraph (b) have been established to exist prior to therespondent's application for a decree for divorce. The crucial anddecisive words in so far as the instant case is concerned aretherefore the following:
'the court mayupon the proof of the matters stated in the
application made under the circumstances referred to inparagraph (h), enter judgment accordingly.' What then are thematters that are required to be stated in such an application andwhich have to be proved to entitle the petitioner to judgmentdissolving the marriage? Learned counsel for the respondentmaintained in effect that they refer to the fact of marriage and thefact that the spouses had been living in separation a mensa etthoro for a period of 7 years prior to the application. If these areproved, the court, learned counsel urged, is obliged to enterjudgment dissolving the marriage. I cannot agree. As set out byme above proof of the matters specified in paragraph (fc>) abovewould only warrant recourse to summary procedure which is aspeedy and inexpensive form of procuring relief. The mattersstated in the application are in my view a reference to the mattersthat have to be set out in terms of section 374(d) of the Code,namely, a plain and concise statement of the facts constitutingthe ground of the application and its circumstances upon proof ofwhich the petitioner is entitled to relief or order prayed for."
The view of Atukorale. J. in the present case is preferable to that ofTambiah. J. in Muthuranee v. Thuraisingham (supra) and hence thelatter should be overruled on this point. The correct legal position isthat only a spouse who has lived m separation a mensa et thoro forseven years and who can establish a separation a mensa et thoro onany ground on which by our law such separation may be granted can
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avail himself/herself of the procedure set out in sflctijn 608(2)(b) ofthe Civil Procedure Code to obtain a decree of d|soluiop of marriageunder that section.
I dismiss the appeal with costs.
COLIN-THOME, J. – I agree.
RANASINGHE, J. – I agree.
DEALWIS, J. – I agree.
TAMBIAH, J.
I have read the judgment of the Hon. the Chief Jstice. I regret, I amunable to agree.
The plaintiff-appellant (the husband) filed actio by way of petitionagainst the defendant-respondent, his wife, and pyed for a divorce avinculo matrimonii on the sole ground that the'had been living inseparation a mensa et thoro for a period of sevn years prior to theinstitution of the action, in terms of section 08(2) of the CivilProcedure Code.
S. 608 reads .
"608(1) Application for a separation a merta et thoro on anyground on which by the law applic-abi to Ceylon suchseparation may be granted, may be rrtade beither husband orwife by plaint to the District Court, within thtiopal limits of thejurisdiction of which he or she, as the case mjr.be. resides, andthe court on being satisfied on due trial c t'«e truth of thestatements made in such plaint, and thathsre is no legalground why the application should not be gnted, may decreeseparation accordingly.
Either spouse may-
fa) after the expiry of a period of two yeartro'm the enteringof a decree of separation under susection (1) by aDistrict Court, whether entered fepre or after the
relevant date; or/
/
notwithstanding that no applicatir has been madeunder subsection (1) but where'tere has been aseparation a mensa et thoro for a ped of seven years.
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apply tothe District Court by way of summary procedure for adecree )f dissolution of marriage, and the court may, uponbeing satisfied that the spouses have not resumed cohabitationin any cse re'erred to in paragraph (a), or upon the proof of thematters stated in an application made under the circumstancesreferred to ir'paragraph (£>), enter judgment accordingly:
Provided fiat no application under this subsection shall beentertained j>y the court pending the determination of anyappeal takenrom such decree of separation. The provisions ofsection 604tnd 605 shall apply to such a judgment.
In this subjection relevant date' means the date on whichthe Civil Cotts Procedure (Special Provisions) Law, 1977,comes into ceration."
The wife filed atwer denying that they lived in separation andmaintained that tire has been no separation a mensa et thorobetween the parties
After trial, the leaed trial Judge rejected the evidence of the wifeand arrived at the filing that the parties had been living in separationa mensa et thoro f< a period of seven years prior to the filing of theaction. He took theiew that on proof of separation a mensa et thorofor such period, u Court was obliged to grant a divorce at theinstance of eithe spouse under s.-608(2), and that it wasunnecessary for hi' to decide whether the spouse suing (or divorcewas an innocent guilty party. He entered judgment for the plaintiffas prayed for in hi petition
The wife appeati to the Court of Appeal and the Court of Appeal byits judgment date05.09.84 set aside the judgment of the trial Judgeand dismissed thapplication of the plaintiff with costs in both theCourts. The Couof Appeal was of the view that s. 608(2) for thefirst time enabled'ther spouse to apply for a decree of dissolution ofmarriage by way csummary procedure without proceeding by way ofplaint in the courstof regular procedure ; that the matters specified inparagraph (a) andjli must be shown to pre-exist before a spouse canhave recourse to srnmary procedure for the dissolution of his or hermarriage: that pfvc>of the matters specified in paragraph (b) wouldonly warrant recode to summary procedure which is a speedy andinexpensive form procuring relief. The judgment states-
SCTennekoon v. Somawathie Perera (Tambiah, J.)105
"In my opinion a spouse seeking a divorce by way of summaryprocedure must not only justify the procedure invoked by him or herbut must'further plead and prove to the satisfaction of court that heor she is entitled to a dissolution of the marriage upon any groundwhich by the law applicable to his or her marriage such dissolutionmay be decreed. In the instant case therefore the husband could nothave succeeded in his claim for divorce by mere proof of a .seven-year separation a mensa et thoro but it was incumbent on himto establish further one of the three grounds of divorce prescribed ins. 1 9 of the Marriage Registration Ordinance. It is my view that theprimary objective of;s. 608 (2) of the Code is to make provision for aquicker and cheaper procedure for obtaining relief in matrimonialcases and not to alter the substantive law upon which marriages canbe dissolved."
The Court of Appeal granted leave to appeal to the Supreme Courtex mere motu on the following substantial questions of law:-
Whether separation a mensa et thoro for a period of sevenyears constitutes a valid ground for divorce under s. 608(2) ofthe Civil Procedure Code; and
If so. whether it is incumbent on the plaintiff seeking a divorceunder that sub-section on such ground to establish amatrimonial fault on the part of the defendant to suchapplication.
In the written submissions filed in this Court on behalf of thedefendant-respondent, it was sought to justify the view taken by theCourt of Appeal that the primary objective of s. 608 (2) of the Code isto make provision for a cheaper and quicker procedure for obtainingrelief in matrimonial cases and not to alter the substantive law ofdivorce; that the grounds for divorce are still only those that arecontained in s. 1 9 of the Marriage Registration Ordinance and apetitioner seeking a divorce under s. 608(2) (b) of the Code mustestablish one of the three grounds specified in s. 19 of the Ordinance.Reliance also was placed on a passage in Maxwell on Interpretation ofStatutes that statutes dealing with procedure should, where possible,be limited in their construction to procedure only.
Belore this Court, however, learned President's Counsel appearinglor the defendant-respondent did not support the above view taken bythe Court of Appeal. Instead, he confined his arguments to the 2nd
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ground of appeal, namely, tha.t the petitioner seeking a divorce unders. 608(2) {b) must establish a matrimonial fault on the part of thedefendant. There is no doubt, then, that s. 608 (2) (a) of the Codecreated a new valid ground of divorce.
Learned President's Counsel for the defendant-respondent citedcertain passages from Benion on 'Statutory Interpretation' (1984Ed.). Craies on 'Statute Law' (5th Ed.), and Maxwell on'Interpretation of Statutes" (12th Ed.) which are to the followingeffect:
"It is a principle of legal policy that law should be altereddeliberately rather than casually, and that Parliament should notchange either common law or Statute law by a side wind, but onlyby measured and considered provisions. The Court, whenconsidering which of the opposing constructions of the enactmentwould give effect to the legislative intention, should presume that
the legislator intended to observe this principleas Lord Devlin
said National Assistance Board v. Wilkinson (supra), 'It is a wellestablished principle of construction that a Statute is not to be takenas effecting a fundamental alteration in the general law unless ituses words that point unmistakably to that conclusion' '-{BenionP-317).
"It is presumed that the legislature does not intend to make anychange in the existing law beyond that which is expressly statedtherein, or follows by necessary implication from, the lannnac^
the statute in question if the arournc.us on a question of
interpretation are 'fairly evenly balanced, that interpretation shouldbe chosen which involves the least alteration of the existing law'
Statutes dealing with procedure should, where possible, be
limited m their construction to procedure only." – {Maxwell pp. 1 1 6,
1 18).
"I; must be remembered that it is a sound rule to construe aStatute in conformity with the common law rather than against it.except where or in so far as the statute is plainly intended to alterthe course of the common law. The general rule in exposition is this,that m all doubtful matters, and where the expression is in generalterms, the words are to receive such a construction-as may beagreeable to the rules of common law m cases of that nature, forstatutes are not presumed to make any alteration in the commonlaw further or otherwise than the Act does expressly declareIf
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it is clear that it was the intention of the legislature in passing a newStatute to abrogate the previous common law on the subject, thecommon law must give way and the Statute must prevail."-{Craiespp. 175. 310).
S.608(2){b) was introduced into the Civil Procedure Code by theCivil Procedure (Amendment) Law No. 20 of 1977. It would appearthat the Bill that was presented by the Minister of Justice, in its originalform, contained only sections 608 (1) and 608(2). which is nows. 608 (2) (a). Learned President's Counsel for thedefendant-respondent informs us that the Bill had passed its secondreading and at the Committee stage, some interested party sponsoredthe amendment which resulted in the present s.608(2)(b) of theCode. It was his submission that an important change in the CommonLaw as embodied in s.»19 of the Marriage Registration Ordinance hasbeen effected "by a side-wind".
S. 597 (1) of the Code states –
"Any husband or wife may present a plaint to the -District Courtpraying that his or her marriage may be dissolved on any ground forwhich marriage may, by the Jaw applicable in Ceylon to his or hercase, be dissolved."
S. 607 (1) states-
"Any husband or wife may present a plaint to the District Courtpraying that his or her marriage may be declared null and void."
"(2) Such decree may be made on any ground which renders themarriage contract between the parties void by the law applicable toCeylon."
S 608 (1) states-
"Application for a separation a mensa et thoro on any ground onwhich by the law applicable to Ceylon such separation may begranted may be made by either husband or wife by plaint to theDistrict Court and the Court, on being satisfied on due trial of thetruth of the statements made in such plaint, and that there is nolegal ground why the application should not be granted, may decreeseparation accordingly."
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Learned President's Counsel for the defendant-respondent alsosubmitted that the words 'either spouse" in s.608(1). (2) should begiven the same meaning as the words "husband or wife' in ss. 597 (1),607(1) and 608(1), that is, a husband or wife who can establish a"ground" in order to obtain a decree of divorce or of nullity or ofseparation; that s.608(2) must be read with s.608(1) and not inisolation. In other words, it is only an innocent spouse free frommatrimonial fault who has obtained a decree for separation under’s.608(1), who can apply under s.608(2)(a) to convert it into adecree for divorce. So too, he argued, in regard to s. 608 (2) (b).The words "notwithstanding that no application has been made undersubsection (1)" in s. 608(2) (b) mean, he said, that although noapplication has been made under sub-section (1), the applicant mustbe a person who would be able to satisfy a ground of separation interms of s. 608(1), but who has nevertheless not made such anapplication. In other words, the applicant must prove the conditionssufficient to obtain a decree of separation, although he has notobtained a decree of separation plus a seven-year separation a mensaet thoro. Here too, only an innocent spouse free of matrimonial faultcan obtain a decree of divorce under s.608(2)(b). The words"application made under the circumstances referred to in paragraphlb)" in s. 608 (2) indicate the circumstances in which the application ismade as stated in s. 608(2) (b) read with s. 608(1).
Learned President's Counsel further submitted that in s.608(2)(b)the meaning to be attributed to the words "a separation a mensa etthoro" (for 7 years) must be the meaning given to the same words ins. 608(1), that is, a separation of the type recognised by law, and notmerely a physical separation. The same words cannot have twodifferent meanings in the same section.
Learned President's Counsel finally submitted that the meaning ofs. 608(2)(b) is ambiguous and by no means clear. If so. thepresumption is against an intention to change the common law or thestatutes embodying the common law.
Learned President's Counsel for the appellant, on the other hand,argued that the whole exercise of interpretation only arises in cases ofambiguity. The words of s. 608 (2) are clear and there is no place forinterpretation. The Court has to give effect to the plain meaning of thewords used in s.608(2){b). Firstly, either spouse could make the
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application, irrespective of who is responsible forthe seven-yearseparation. There must secondly be a factual separaion a mensa etthoro for a period of seven years. The expression "separation a mensaet thoro" contemplates a physical situation of a s'epaiation from bed,board, cohabitation and goods and carries no connotation of amatrimonial fault. Thirdly, upon proof of the said two matters, theCourt must enter judgment accordingly.
Article 80(3) of our Constitution precludes th& canvassing of thevalidity of any statute law. It states that-
"Where a Bill becomes law upon the Certifica© of the President orthe Speaker, as the case may be, being endorsed thereon, no Courtor tribunal shall inquire into, pronounce upon orin any manner call inquestion, the validity of such Act on any ground whatsoever."
It matters not, then, whether s. 608(2) of the dode was introducedby a "side wind" or a change in. the substantive; law of divorce waseffected in a Statute dealing with procedure. 'Have not the basicprinciples of the law of res judicata- been written into our CivilProcedure Code? Did not the old Civil Prodecure, in sections 600,6.01 and 602, contain important provisions regarding the dismissal ofa suit upon connivance, condonation or collusion, and give the Court adiscretion to refuse a dissolution of marriage upon the proof ofadultery, delay, cruelty, desertion, neglect or misconduct on the partof the plaintiff? If an Act of Parliament has been obtained improperly, itis for the legislature to correct it by repealing it. So long as it remainson the Statute Book it is good and valid law, and the task of the Courtis to interpret the Act.
"Strictly speaking, there is no place for interpretation orconstruction except where the words of a Statute admit of twomeanings. As Scott, L. J. said:
'where the words of an Act of Parliament are clear, there isno room for applying any of the principles of interpretationwhich ahe merely presumption in cases of ambiguity in theStatirte.'
Rules of construction have been laid down because of theobligation imposed'on the Courts of attaching an intelligible meaningto confused and unintelligible sentences.
The cardinal rule for the construction of the Acts of Parliament isthat they should be construed according to the intention ofParliament which passed them. The tribunal that has to construe anAct of a Legislature, or indeed any other document, has to
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determine thr intention as expressed by the words used. If thewords of the Statute are themselves precise and unambiguous, thenho more can be necessary then to expound those words in theirordinary and latural sense. The words themselves alone do in sucha case best cfeclare the intention of the law giver.
Where the language is explicit, its consequences are forParliament, and rot for the Courts, to consider. In such a case thesuffering citizen nust appeal for relief to the law giver and not to thelawyer." – (Craes 5th Ed. pp. 63. 64. 85).
"Where the lancuage is plain and admits of but one meaning, thetask of interpretaton can hardly be said to arise. Where, by the useof clear and unequivocal language capable of only one meaning,anything is enacted by the legislature, it must be enforced howeverharsh or absurd or contrary to common sense the result may be.The interpretatioi of a Statute is not to be collected from anynotions which may be entertained by the Court as to what is just andexpedient. The doty of the Court is to expound the law as it stands,and to leave the 'emedy to others.
But where the words of a Statute are plain and unambiguous, anintention to alter the common law is evident from the words of theAct, there is no place for the application of the presumption." (thepresumption against changes in the common law) – {Maxwell pp.29, 122).
I cannot accept the contention of Learned President's Counsel forthe defendant-respondent that it is only an innocent spouse, devoid ofmatrimonial fault, who can seek a divorce under s. 608(2). In sections597(1) and 607(1), the words used are "any husband or wife maypresent a plaint to the District Court". The word "ground" is also used.Obviously, then, it is the spouse who has a cause of action who cansue for' divorce or a nullity of marriage. Similarly, the words ins.608(1) are "application for a separation a mensa et thoro may bemade by either husband or wife by plaint to the District Court." Theword "ground" is also found. Here too, only the spouse who has acause of action can sue for judicial separation. In all three sections, thedraftsman employed language which made his meaning manifest thatit is only the innocent spouse who could file action seeking a divorce ornullity of marriage or a decree of separation. It is significant that thesewords are not reproduced in s. 608(2) and the bare words "eitherspouse" are used, qualifying both paragraphs (a) and (b) of s. 608(2).
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If the contention of learned President's Counsel is correct, then, Imust read into s. 608 (2) the following words or some suchUords:-
(2) Either spouse –
who has obtained a decree of separation may after theexpiry of two years etc.; or
notwithstanding that no application has been made undersub-section (1) but where such an application could havebeen made and there has been a separation a mensa etthoro etc.
It is a welf settled rule of construction that if the language of theenactment is clear and unambiguous, it would not be legitimate for theCourts to add words thereto and evolve therefrom some sense whichmay be said to carry out the supposed intentions of the legislature(Bindra on Interpretation of Statutes, 6th Ed. p. 41 2).
Further, if the submission that a spouse, in addition to a seven-year-separation a mensa et thoro, must also prove the conditions sufficientto obtain a decree of separation is correct, the legislature need not.have enacted s. 608 (2) (fc>). Sections 608 (1) and 608 (2) (a) wouldsuffice. A spouse could obtain a decree of separation under s. 608(1), and two years later, convert same into a decree of divorce unders. 608 (2) (a).
•I have ho difficulty in construing the words "notwithstanding that noapplication has been made under sub-section (1)". They mean in spiteof the absence of a decree of separation. The words "applicationmade under the circumstances referred to in paragraph (b). clearlyrefer to the circumstances" in paragraph (b). that is no decree ofseparation and a separation for seven years.
What is the meaning of the expression "a separation a mensa. et
thoro" ?
S. 608 (1) states that a decree of separation may be granted on anyground on which by the law applicable to Ceylon such separation maybe granted. The case law shows that our Courts have introduced theRoman Dutch Law grounds for separation into our system.
"Maarsdorp's Institutes. Vol. 1, p. 75. sums up the Roman DutchLaw and states that, among other grounds, continuous quarrels anddissensions or other equally valid reasons, which render the livingtogether of the spouses insupportable, will justify a judicial
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separation,.and that although a wife or husband may reasonably beexpected to bear with occasional outbursts of ill temper, yetoccasional assaults, however light, accompanied by habitual
intemperance, will make cohabitation insupportableIt is well
known that a judicial separation may be obtained on the samegrounds as divorce." – (Orr v. Orr {10)).
"Separation may be by the Court, or by consent, in certain cases.The former of these is called divorce a mensa et thoro, i.e.. a judicialseparation from bed, board, cohabitation, and goods; and thisseparation may be prayed for by the party, even where a divorce a
vinculo might have been asked Besides, the law loves to
leave a door ajar for reconciliation, and will prefer to decree judicialseparation rather than a divorce a vinculo. Judicial separation may,therefore be decreed for adultery subsequent to marriage, andmalicious desertion, and also when for other reasons thecontinuance of the cohabitation would become dangerous orinsupportable. So that judicial separation may be decreed onaccount of cruelty, or protracted differences or for gross, dangerousand unsupportable conduct in either spouse." – (Keenhiratne v.Karunawathie (supra))
The expression "separation a mensa et thoro" means separationfrom bed and board. Judicial separation is a separation of husbandand wife from bed and board by a judicial order. The Court by decreeauthorises the parties to live apart from each other. There can be anextra-judicial separation. Parties may voluntarily agree to separatefrom bed and board and may even enter into a notanally executeddeed of separation setting out the terms on which they agree to liveapart which will be binding on the parties. (See Frugtneit v. Frugtneit(11). What is contemplated in s.608(2)(b) is a private de factoseparation from bed and board for seven years.
Plain words must be given their plain meaning. There is no ambiguityby learned President s Counsel for the defendant-respondent; nor willa Court be justified in reading into s. 608 (2) words which are notthe presumption against changes in the common law as contended forin the words of s. 608 (2) and there is no room for the application ofthere so as to arrive at an interpretation that s. 608(2) is onlyavailable to an innocent spouse devoid of matrimonial fault.
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S. 608(2) plainly enacts that on an application of either spouse,whether innocent or guilty of a matrimonial offence, a decree ofseparation may be converted to one of divorce after the lapse of twoyears. In addition, it declares that despite the absence of a decree ofseparation, a de facto separation a mensa et thoro (from bed orboard) for seven years is sufficient to obtain a dissolution of marriage,on the application of either the innocent or the guilty spouse. In thelatter case, the Court in effect is only conferring de jure recognition ona de facto'state of affairs.
The Civil Courts Procedure (Special Provisions)'Law, No. 19 of1977, retained s.597 of the old Code. The husband or wife couldhave their marriage dissolved on any ground for which it may, by thelaw applicable in-Ceylon, be dissolved. The substantive grounds onwhich a marriage may be dissolved are contained in s. 1 9 of theMarriage Registration' Ordinance: adultery subsequent to marriage,malicious desertion or incurable impotency at the time of marriage.The common law grounds of divorce are founded on the doctrine ofmatrimonial offence-. To obtain a divorce, one spouse must establishthat the other is at fault and has committed a matrimonial offenceknown to the law.-
Law No. 19 of 1 977 retained s. 608 of the old Code andre-num.bered it as s.608(1). It repealed s.. 627(1) of theAdministration of Justice (Amendment) Law, No. 25 of 1975 whichenacied that a judicial separation could only be obtained on anyground on which a divorce may be sought. Law No. 19 of 1977restored the old position.
Law No. 19 of 1977 also retained s.627(2) of Law No. 25 of1975 which enabled either spouse to convert a decree of separationinto,a decree of divorce after the lapse of two years from the enteringof decree of separation.
Why was this new ground of divorce in s. 608 (2) (a) enacted by thelegislature? Parties seek a judicial separation rather than a dissolutionof marriage for several reasons-on account of their religious beliefsthat a marriage is sacred and indissoluble, or in the interests of thechildren; but. the main reason is the hope that time will be a greathealer of the wounds of the original parting’and that the erring spousewould return soon. Where reconciliation had failed and there was nohope of resumption of cohabitation, the legislature thought that ratherthan compel parties to continue to be married, provision should be
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made for the conversion of a decree of separation into a decree ofdivorce, after the lapse of two years. The legislature thought that theprovision of a two-year period after judicial separation was sufficient toenable parties to resolve their differences and resume cohabitation Ifafter the expiry of two years, spouses are still living apart, theindication is that the marriage has irretrievably broken down.
Law No. 1 9 of 1977 went further and enacted an additional groundof divorce in s.608(2)(d)-that a de facto separation from bed andboard for seven years should be a ground for divorce. The underlyingprinciple is clear. The fact of a long separation was sufficient proof thatthe marriage had irretrievably broken down and that it was futile tocontinue the form of marriage without its substance. In such asituation, the parties should be given an opportunity of rehabilitatingand refashioning his or her life.
Thus we find that the general law of divorce contains features of thedoctrine of matrimonial offence and of the doctrine of the breakdownof marriage. This was not something unknown to the other systems ofdivorce law in our country-The Kandyan Law and the Muslim Law.S.32 ofdhe Kandyan Marriage and Divorce Act, (Cap. 1 13) sets outthe grounds for the dissolution of a Kandyan Marriage as adultery bythe wife after marriage, adultery by the husband, coupled with incestor gross cruelty, complete and continued desertion by the wife orhusband for two years, inability to live happily together, of whichactual separation from bed and board for a period of one year shall bethe test, and mutual consent. The Kandyan Law therefore containsfeatures of the doctrine of the matrimonial offence when it enables aspouse to seek a divorce for the matrimonial offences of adultery anddesertion committed by the other spouse, and also allows divorce onthe last two grounds (inability to live together and mutual consent)which are based on the doctrine of the breakdown of marriage.
The Muslim Law, too, contains features of both doctrines. Ahusband may divorce his wife without assigning reasons by thepronouncement of Talaq. It provides for divorce by mutual consent(Mubarat) and also for divorce at the instance of the wife on theground of ill-treatment or an account of an act or omission on thehusband's part amounting to a fault (Fasah Divorce).
How often in our trial Courts, have parties, having realised that theirmarriage had broken down and having mutually agreed as regardscustody of children and' alimony to the wife, engaged in collusivelitigation? Cases have proceeded undefended and ex parte and
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decrees of divorce obtained at the instance of one spouse. In otherinstances, cases, hotly contested on the pleadings, have beencompromised at the trial stage because parties have realised there wasno hope of reconciliation. Having agreed on custody of children andalimony to the wife, one side has allowed the other side to leadevidence and obtain a divorce without contesting the evidence, andsometimes, on evidence which only supported a case for judicialseparation. Decrees of divorce were thus obtained, though s. 602required the Court to be satisfied on evidence that the plaintiff's casehas been proved before entering a decree of divorce and even thoughin the old Code (s. 602(1)), a collusive proceeding was an absolutebar to the. dissolution of marriage. By enacting s. 608(2), the1 legislature was only giving statutory recognition to an establishedpractice in our trial Courts.
There is another matter. According to s. 19 of'the MarriageRegistration Ordinance; the grounds for divorce are adultery,malicious desertion and incurable impotency at the time of marriage.These grounds, except incurable impotency, are based on the theoryof matrimonial fault. The old Civil Procedure Code, in s. 602(1),enacted that the Court:shall dismiss the plaint if it finds that the plaintiffhas been an accessory to or conniving' at the act or conduct whichconstitutes the ground upon which the dissolution of marriage isprayedTor, or has condoned the same or that the plaint is presented orprosecuted in collusion with the defendant. Thus, a finding ofconnivance, collusion or condonation was an absolute bar to thedissolution of marriage. This provision in the Old Code was consistentwith the theory of matrimonial fault which is the basis on which amarriage is dissolved.~.
The old Code in the proviso to s.602(1) also provided that theCourt shall not be bound to pronounce a decree for divorce if it findsthat the plaintiff has, during the marriage, been,guilty of adultery orbeen guilty of unreasonable delay in presenting or prosecuting hisplaint orvof cruelty to the otherv party to the marriage^or of havingdeserted or wilfully separated himself or herself from the other partybefore the adultery complained of and without reasonable.excuse, orof such wilful neglecCof or misconduct towards the other party, or hasconduced to the adultery. Thus, plaintiff's adultery, his delay in filingaction, cruelty, desertion or wilful neglect or misconduct conducive toadultery, are discretionary bars to the dissolution of marriage. Thisproviso contains the principle that he or she who comes to Court for
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relief must himself or herself come with clean hands. This is alsoconsistent with the theory of matrimonial fault which is the basis onwhich a marriage is dissolved.
The Administration of Justice (Amendment) Law. No. 25 of 1975.did not re-enact s.602 of the old Code, but it enacted a new groundof divorce in s.627(2). S.602 of the old Code was also notreintroduced by Law No. 20 of 1977, which went further and enactedan additional ground of divorce in s.608(2)(£>). Which means, today,
' a divorce could be obtained notwithstanding that the plaintiff has beenguilty of connivance, condonation or collusion. What was the reasonfor the omission of the absolute and discretionary bars both in LawNo. 25 of 1 975 and Law No. 20 of 1977?
To my mind the reason is clear.-The retention of the provisionsdealing with absolute and discretionary bars would operate against theprinciple of irretrievably broken down marriage contained in s. 608(2).They were, therefore, omitted by the legislature to enable partieswhose marriages have irretrievably broken down to seek a dissolutionof their marriage.
•I see no reason to change the view I have taken of s.608(2)(fc>) inmy judgment in Kuthuranee v. Thuraisingham (supra) even afterhearing fresh arguments, except in regard to one matter. I have statedin my judgment (p.392). "S.608(2)(fc>) enables spouses topermanently end their marital relationship on the mere proof of a defacto separation for a period of seven years.” This statement of minemight suggest that spouses who have parted from each other forseven years for reasons of employment abroad, medical treatment, jailsentence etc., are entitled to a dissolution of marriage by mere proofof separation for seven years.
In England, the sole ground on which a petition for divorce may bepresented to the Court by either party to a marriage is that themarriage has broken down irretrievably (Matrimonial Causes Act,
S. 1 (1)) The Court hearing a petition for divorce must not holdthe marriage to have broken down irretrievably unless the petitionersatisfies the Court of one or more of the following facts, that is tosay: (1) that the respondent has committed adultery and the petitionerfinds it intolerable to live with the respondent; (2) that the respondenthas behaved in such a way that the petitioner cannot reasonably beexpected to live with the respondent; (3) that the respondent hasdeserted the petitioner for a continuous period of at least two yearsimmediately preceding the presentation of the petition; (4) that the
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parties to the marriage have lived apart for a continuous period of atleast two years immediately preceding the presentation of the petitionand the respondent consents to a decree being granted; (5) that theparties to the marriage have lived apart for a continuous period of atleast five years immediatley preceding the presentation of the petition(s. 1 (2)). On a petition for divorce it is the duty of the Court to inquire,so far as it reasonably can, into the facts alleged by the petitioner andin to any facts alleged by-the respondent. If the Court is satisfied onthe evidence of any such fact as is mentioned in subsection (2), then,unless it is satisfied on all the evidence that the marriage has notbroken down irretrievably, it shall, subject to section 3(3) and 5, granta decree of divorce (s. 1 (3), (4)). S.5 relates to refusal of a decree of ■divorce where there would be grave financial or other hardship to therespondent and it would in all the circumstances be wrong to dissolvethe marriage.
The English Law requires proof of-an irretrievable broken downmarriage as a pre-requisite for the award of a decree of divorce.
In Chapman v. Chapman (12), the defendant presented a petitionfor divorce on the ground that the marriage had irretrievably brokendown. She prayed for costs and in the petition suggested that thehusband was responsible for the separation. Lord Denning, M.R.
observed:
"I think it altogether wrong for a petitioner (who seeks a divorceon the ground of five years living apart) to charge the respondentwith a matrimonial offence. If the petitioner seeks to make such acharge, she should proceed on one of the other grounds, such asadultery, intolerable behaviour or desertion. She should onlyproceed on the five-year ground alone when that is the only fact on
which she is entitled to relyThe result is, in my opinion, that
in these five-year cases, the Court should not enquire into whosefault it was that the-marriage has broken down. |f the petitionerstarts making allegations of fault, in order to recover costs, then therespondent will be entitled to cross-examine her and to call evidencehimself in answer and we shall be back to the bad old days of mutual
recrimination in open CourtSo I am firmly of opinion that the
petition, in a five-year case, should not contain any allegation of faultagainst the respondent. In most five-year cases the fault is on the-part of the petitioner, or is the fault of both, or as I would prefer tosay, the misfortune of both."
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In South Africa, the four grounds of divorce were adultery, maliciousdesertion, incurable insanity which has existed for not less than sevenyears, and imprisonment for five years after the defendant spouse hasbeen declared a habitual criminal. The first two grounds are based oncommon law, the other two on statute (See Hahlo on the SouthAfrican-Law of Husband and Wife. p. 295). Commenting on this Hahlosays:
"The statutory grounds of divorce are based on the idea that it isthe function of divorce to dissolve the marriage tie when theconsortium has been destroyed. The common law grounds ofdivorce are based on the guilt principle."
It would seem that in South Africa at present, there is the DivorceAct, No. 70 of 1979 (not available). In Kruger v. Kruger (13) theplaintiff, a medical practitioner and 76 years of age. was married in1 940, and whilst working in the Orange Free State started an intimaterelationship with Mrs. H. In 1951, he took a job in Johannesburg andMrs. H. joined him there. The defendant wife stayed on in the OrangeFree State to look after the plaintiff's mother who was teiminally illwith cancer. After the mother died, the defendant and her son joinedthe plaintiff in Johannesburg. In 1953, the plaintiff left the defendantand ever since, he has been living with Mrs. H. The plaintiff has askedthe defendant many times to divorce him but she refused. In 1964,she obtained a decree of judicial separation against her husband. In1977 the plaintiff suffered a serious brain haemorrhage and thedefendant visited him at the Nursing Home on a number of occasionsand offered to look after him at her home. He refused the offer. Thedefendant in her evidence stated that she still loved him. She hadhopes of her husband's return, that she believed in the sanctity ofmarriage and she does not wish to break the vows she had madebefore God. The husband stated in evidence that he still thinks highlyof the defendant and that she is an unselfish person who tries toexpress her life in the best Christian traditions. He did not want toreturn to her, he loves Mrs. H. and wishes to marry her if divorce isgranted. Brink, J. said:
"There are indications in some of the letters, written by theplaintiff,-and also in the evidence, that there still is a particular bondbetween the parties. When the fact that the plaintiff has chosen tolive apart from the defendant for almost 27 years and has said thathe wishes to marry Mrs. H. if an order for divorce is granted is,however, taken into account, it is quite clear that this bond does
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not, as far as the plaintiff is concerned, have its origin imthe love andaffection which persons, happily married, normally have for eachother and cannot be regarded as something which binds the partiesto each otherx in such a manner that it has prevented their marriagefrom reaching a state of complete disintegration despite the manyyears of separation. The defendant's attitude towards marriage- ispraiseworthy. The" manner in which she behaved towards theplaintiff shows that she does not refuse to divorce him out of spitebut because of a genuine desire to have the marriage relationshipbetween them restored. The marriage relationship can_however onlybe restored with the co-operation, of the plaintiff. And the plaintiff'sadamant determination not to resume life with the defendant andthe fact that he has lived with Mrs. H. for almost 27 years constrainme to come to the con'clusion that the marriage has broken downirretrievably and that._'even if I have a discretion in the matter, I am-obliged in the particular circumstances of this case to grant an orderfor divorce… .v M., .There is, apart from-the fact that the parties
have not lived' together as husband and vyife" ample proof
that the marriage has reached a state of absolute disintegration/'
This case was decided under thd'Divorce Act, No. 70 of 1979. It isclear from the judgment that an irretrievable breakdown of marriage isa ground of divorce in South Africa now. Divorce was granted in thiscase at the instance of the guilty spouse though it was opposed by theinnocent spouse."
"s.
S. 608(2) states that the "Court may upon the proof of the mattersstated in an application made under the circumstances referred to inparagraph (6), enter judgment accordingly." This means, that even if aspouse has proved a de facto separation from bed and board forseven years, the Court has a discretion, whether or not to enter, adecree for divorce. As s..60f3(2) (6) embodies the theory ofbreakdown of marriage, the trial Court will, therefore, dnly grant adissolution of marriage if it is satisfied on the evidence that'the maritalunion is dead for all intents and purposes.
One other matter. The trial Judge has not considered the paymentof permanent alimony to the defendant-respondent. According tos.615 of the old Civil Procedure Code, a court has no power, in adecree'absolute for the dissolution of marriage entered at the suit ofthe husband, to award permanent alimony to the wife (See. Ebert v.Ebert (14)). Thus, only an innocent wife was entitled to permanent
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alimony both on divorce and on separation. This was consistent withthe theory of matrimonial fault which is the basis on which a marriagewas dissolved. Law No. 20 of 1 977 repealed s. 615 and has replacedit with the new s. 61 5. in terms of which, "the Court may. if it thinks fit,upon pronouncing a decree of divorce or of separation, make order forthe benefit of either spouse or of the children or of both." Is it not tomeet the new situation created by the enactment of s.608(2).whereby even a guilty spouse who has wrecked the marriage couldobtain a divorce, that the new section 61 5 was enacted, for, if the olds.615 stood, the innocent spouse would have been deprived ofsupport.
The learned trial Judge has correctly taken the view that in anapplication for divorce under s.608(2)(b), the question whether theapplicant is an innocent or guilty party does not arise for consideration
I set aside the judgment of the Court of Appeal dated 5.9.84, andrestore the judgment of the learned trial Judge. The case is sent backfor the limited purpose of enabling the trial Court to make anappropriate order for payment of alimony in terms of s. 615 of theCode, after due inquiry. There will be no costs of appeal.
Appeal dismissed.