U. If. G. FF.RXAXDO, CJT.-Willala v. Wellala
1970 Present: H. N. G. Fernando, C.J., and Weeramantry, J.
RANEE WELLALA, Appellant, and D. R. WELT-ALA,Respondent
S. C. 236J6S (Inly.), tcilk Application in Revision Ho. 710—D. C. Colombo, 6S9G/D
Action Jor divorce—Order Jor permanent alimony—Proper stage at which it should bemade—Civil Procedure Code, s. Glo.
Tho jurisdiction of the Court under soction 015 of tho Civil Procoduru Codeto mako an order for permanent alimony becomes exorcisoblo only at thastage when a divorco deerco is being or lias been mado absolute (although, inpractice, matters concerning the liability to pay alimony, and tho nature andquantum of tho payment, aro investigated at an earlier stago). Accordingly,it is open to tho wifo to dofor her application for permanent alimony to a stagesubsequent to tho entry of tho decree absolute.
Appe AL, with application in revision, from an order of the DistrictCourt, Colombo.
H. W. Jayeuardene, Q.C., with S. D. Jayaicardene and O. M. 8.Samaraueera, for the plaintiff-appellant.
C. Runganathan, Q.C., with -4. A. M. Marleen, for the defendant-respondent.
Cur. adv. cull.
September 30, 1970. H. N. G. Fernando, C.J.—
The plaintiff in this ease sued hc-r husband the defendant for a decreeof divorce, for alimony pendente Ule and for permanent alimony in a sumof Rs. 500 per month. A separate petition, asking for Rs. 500 as alimonypendente life and for costs, was filed a few weeks after the plaint. Aninterlocutory- order allowing the prayer in the petition was made on 11thOctober 19G5 and served on the defendant. Thereafter the defendantfiled objections to that order, denying that the plaintiff was entitled toclaim alimony pendente lile or costs of her action. Nevertheless a consentmotion in which the defendant agreed to pay Rs. 200 per month asalimony' pendente litc was filed in Court, and the Court made orderaccordingly on 16lh January 19G7. The defendant having filed answer,the case was then fixed for trial.
When the case was taken up for trial on 19th May 19G7, both partieswere represented by experienced Counsel, and Advocate Vernon Wijetunge(appearing for the plaintiff) infoimcd the Court that " there isno contest ”,LXXHI—22
1*X 076—2.253 (J/7J)
508H. N. G. FERNANDO, CJ.—WtUala v. Wellala
Tho plaintiff then gave evidence concerning the marriage and the fact ofmalicious desertion by the defendant. Sho concluded her evidence bystating “ I am asking for a divorce and permanent alimony at Rs. 200 permonth Sho was not cross-examined. The Judge then ordered decreenisi for divorce to be entered, and tho decree was made absolute on 25thAugust 1967.
Neither the decree nisi nor the decree absolute contained provision forthe payment of permanent alimony. Nevertheless, it is common groundthat the defendant did pay Es. 200 per month for the months ofSeptember to December 1907, and that he sent a cheque for Es. 200 forthe month of February 19GS. In the letter which accompanied thecheque, the defendant stated that the “ March amount will follow in duecourse ”. The plaintiff’s affidavit, filed in the present applications in' revision, states that these payments were made in pursuance of anagreement reached before the trial that the defendant would payRs. 200 per month, both pendente We.and as permanent alimony. Thedefendant’s affidavit states that, on a request made by the plaintiff, heagreed to pay her Es. 200 per month for a period of about 12 months, butdenies that he paid or agreed to pay any money by way of permanentalimony.
The monthly payments then ceased, and the plaintiff at that stageappears to have realised that the Court had made no order forpermanent alimony. The plaintiff thereupon moved the District Court toamend the decree in terms of s. 1S9 of the Civil Procedure Code. Theground actually relied on was that the Court had failed to record at thetrial a statement of Counsel concerning the agreement of the parties as topermanent alimony, and that accordingly there had been an accidentalslip or omission in entering the decree. This ground was in my opinionproperly rejected by the District Judge. If the proper rule of procedureis that an order for permanent alimony must be made either in a decreenisi for divorce or contemporaneously with that decree, the circumstancesof this case do not disclose that the omission to make such an order wasdue to any error or inadvertence on the part of the Court.
The relevant provision in s. 615 of the Civil Procedure Code is thatThe Court may, on any decree absolute declaring a marriage to bedissolved make an order ” for alimony. Hence the jurisdiction to makean order for permanent alimony becomes exercisable only at the stagewhen the Court determines that a decree for divorce is to be madeabsolute. It is no doubt an usual and convenient practice that mattersconcerning the liability to pay alimony, and the nature and quantum ofthe payment, are investigated at an earlier stage. This practice wasapproved in'the case of Earunanayake v. Earunanayake1. which also‘ (1927) 39 N. L. R. 275.
H. N. G. FERNANDO, C.J—Wdlala v. TYtUala
accepted as valid an actual order made at the invitation of parties beforethe stage of the decree absolute, fixing the amount of permanent alimony.Nevertheless the Court in that case placed on s. C15 the same constructionas I do, that an order for permanent alimony should properly be madeonly when a divorce decree is made absolute.
Tho prescribed Form for a decree of divorce (Form 97) can containadaptations from Form 95, which provides for the inclusion in the decreeof an order for permanent alimony. This circumstance may lend somesupport to the construction that an order for permanent alimony cannotbe made otherwise than in a decree absolute. But there is nothing in theCode itself to indicate that a claim for permanent alimony must neces-sarily be made in a plaint in a divorce action or at any stage prior to theentry of a decree absolute. As I have already emphasised, the juris*diction of the Court under s. 615 to order the payment of permanentalimony depends on the fact that a divorce decree is being or has beenmade absolute. That being so, it is in m3' opinion open to the plaintiff-wife in a divorce action to defer her application for permanent alimonyto a stage subsequent to the cntr3' of the decree absolute. Indeed, thejudgment in the Karunanayale case expressly' states that (strictlyspeaking) the order for alimony' should be made after the decree nisi ismade absolute.
The statutory power of the Courts in England * to grant of alimony isexpressed in much the same terms as the corresponding power in Ceylon :
" On any decree for divorce, the Court may' order maintenance In thecase of Sydney v. Sydney 1 the House of Lords considered a case where aiecrco absolute included an order for maintenance. Referring to thepropriety and effect of such a decree, Lord Wcstbury made the followingjbservations:—
“if, as a matter of convenience and to save expense, one
order only is drawn up, or one decree recorded, in which the Court,having first finally' pronounced for the dissolution of the marriage, goeson to exercise the supplementary jurisdiction of ordering an allowance,still that second part of the decree, though for convenience it is alicontained in one piece of parchment, is in reality the exercise of adifferent jurisdiction and of a different judicial 2>owcr and considera-tion ; and the one jurisdiction and its exercise is wholly distinct fromthe other jurisdiction and the exercise thereof. It would be absurd,therefore, and we should be allowing ourselves to be caught by mereforms of expression, if we were to hold that that portion of the decreewhich relates to the maintenance is decision of the Court upon apetition, that is, a petition for the dissolut ion of a marriage. As I havealready observed, the petition for the dissolution of the marriage mustbe finally decided first, before the right to exercise the auxiliary orsupplementary discretionary power can by possibility arise. It is
* (1367) 36 L. J. P. and M. 73.• Matrimonial Causes Act I S'. 7. S. 32.
Matrimonial Causes Act of 1950, S.19 (1).
H. N. G. FERNANDO, C.J.—TYcl'.aln v. W'.Uala
absurd, therefore, to confound the one tiling with the other, and toascribe to the discretionary order which follows upon the judgmentthe character of being an order pronounced upon a petition for thedissolution of the marriage. In fact, although it may not be so interms, it is really an order pronounced upon an application to thediscretionary power of the Court, which application can only bemade after the other and more important jurisdiction has beenexercised. ”
In fact in England there are rules of Court which provide for the filingof an application for maintenance, and it has been held that such anapplication may be made within a reasonable time after entry of decreeabsolute for divorce. (Scott v. Scott1 .) Considering that in the presentcase after decree absolute was entered in August 1967, the defendantcontinued to make payments of Rs. 200 a month until 3Iarc-h 1968, itseems to me that her petition of September 1968 was filed within areasonable time.
It is unfortunate that the plaintiff’s advisers thought it necessary toinvoke s. 1S9 of the Code, instead of relying upon the plaintiff’s right toask for an order for alimony after the divorce decree was made absolute.But justice requires us to enforce that right iu the exercise of ourpowers in revision.
I have considered the question whether it is desirable to refer back tothe District Court the question whether the plaintiff’s prayer for Rs.-200per month as permanent alimony should be granted. But certain relevantmatters are already established. The defendant, in the motion filedprior to 16th January 1967, consented to pay Rs. 200 per month asalimony pendente lite and an order of Court was made on that basis ; thatbeing so, the subsequent statement in the defendant’s affidavit of 10thJanuary 1970, that he had merely agreed to pay Rs. 200 per month “ for■" about 12 months ” conflicts with the motion filed on his behalf. There-after, when the case was taken up for trial, the defendant’s Counselacquiesced in the statement of plaintiff’s Counsel that there was nocontest, and refrained from cross-examining the plaintiff on her statementthat she claimed Rs. 200 per month as permanent alimony. It is to mesufficiently clear that the defendant did not at that stage contest eitherthe plaintiff’s claim for alimony or the quantum of her claim. The factthat tho defendant continued to pay Rs. 200 per month to the plaintiffeven after entry of the decree absolute indicates his own acceptance ofthe course which his Counsel (I think quite properly and in accordancewith instructions) took at the trial. When the defendant’s Counselrefrained from cross-examinfng the plaintiff, after acquiescing in the .statement of plaintiff’s Counsel that there is no contest, it must, beassumed that he admitted the defendant’s liability to pay the alimonywinch the plaintiff claimed in her evidence.
1 (1921) L. R. Probate '118.
TEX7CEKOON, J.— SYolliammai v. Srlliah
In (he exercise of the powers in revision of (his Court, I order that witheffect from 1st Jar.uaiy 1970 the defendant do pay to the plaintiff per-manent aliir ory at the rate of Rs. 2C0 per month, that is to say a sum ofRs. l.fCO in respect of the period January to September 1970, andRs. 200 for each subsequent month. Pro forma, the plaintiff’s appealKo. 236/C8 Inty. is dismissed, lut without prejudice to the order nowmade in the Application in Revision.
Weeramastry, J.—I agree.
Appeal dismissed.Application in revision allowed.
RANEE WELLALA, Appellant, and D. R. WELLALA, Respondent