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Present: Bertram C.J. and Schneider J.
SILVA t;. MISSINONA488—D. C. Galle, 20,852.
Divorce—What constitute* malicious desertion f—.When decree should beentered f—Interval between decree nisi and decree absolute—CictlProcedure Code.
‘ Desertion to be a ground for divorce must -be malicious, that isto say, it must be % deliberate and unconscientious, definite, andfinal repudiation of the obligations of the marriage state. Itmust be sine ammo rcterlcndi. Divorce should only be granted jfthe desertion complained of was a repeated desertion, and theoffending spousehas contumaciouslyrefused toreturn tomarried
Voet observes thatevenafter judgmentfordesertionand
separation, attempts should be made to bring about concord to thefull extent to which this is possible.
11 Our procedure gives opportunity for the application of the sameprinciple throughthe fact that everydecree fordivorce is,inthe
first instance, a decreenisi.Theperiod ofthreemonthsbefore
it is made absolute is only a minimum period, and in casesof malicious desertion this preliminary period should, in myopinion, be substantially longer, andwe shouldgive effecttothe
principles of theBoman-Dutch lawby holdingthat in casesof
malicious desertion the object of this interval is to allow an oppor-tunity for reconciliation,andthatthe decreeshouldnot bemade
absolute, unless it appeared that the complaining spouse had, inthe interval, provided areasonableopportunityfor aresumption of
married life, and that this had been contumaciously and unreason-ably refused by the other party."
The facts are set out in the judgment*.
H. J. 0. Pereira, K.G. (with him Soertsz and -V. H. IV. tie Silva)for defendant, appellant.
Elliott, K.C. (with him H, T Perera and Jayasuriya), for plaintiffrespondent.
Cur. ode. vult.
August 4, 1924. Bertram C .J.—
This is an appeal in an action for a divorce by a husband againsthis wife based on the allegation of malicious desertion. The learnedDistrict Judge has found that the plaintiff was “ fully* entitled to adivorce,” and he has accordingly entered a decree nisi to becomeabsolute after the very brief interval of three months. I do not*
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think that the learned Judge has fully considered the principlesgoverning divorce on the ground of malicious desertion, and it isclearly very important that these principles should be under-stood.
I will first consider the facts: The parties were married on May 16,191*3, and for over two years after the marriage lived together atthe house of the wife's father at Kogalla in the Southern Province.Two children were bom, one of whom died. All the husband'sfurniture was taken to his father-in-law's house, but he says that itwas a temporary arrangement, and that his father-in-law promisedto give him some land, on which he was to build a house of his own.By July, 1915, however, a very marked state of friction had arisen.It is clear that the husband wanted to get away from his father-in-law’s house and take his wife with him. He made complaints to theofficer-in-charge of the police station, to the District Judge, andto the Provincial Registrar, and sent two petitions, complainingagainst his father-in-law, to the Police Officer at Galle. He thenwent away to Matale where lie had property, his wife declining toaccompany him. The parties then lived separate for 5£ years untilFebruary, 1921. I am not clear that the husband was away atMatale all this time. The wife says that he was at Kataluwa, abouta mile from Kogalla, at his aunt’s house, and that she repeatedlywrote to him and saw him several times, taking her children with her.She wanted her husband either to live in her father's house, or athis own mulgedera at Kataluwa, a mile off. The husband, however,wanted to live at Mirissa, about 10 miles away, where he had leaseda house for the purpose. In February, 1921, there was a reconcili-ation. The husband came and stayed for a week at his father-in-law’s house at Kogalla. On February 10 his wife went with himto Mirissa where he stayed one night, not at the leased house, whichwas not ready, but as guests in the house of one of her husband’srelations. The child cried, the situation was uncomfortable, andthe family went back to the fatber-in-law’s house, where the husbandlived for over a year until March 24, 1922. During this timeanother child was bom. Friction, however, again arose in connec-tion with the question of the wife’s dowry. The husband appearsto have been still anxious that his wife should go and live at Mirissa.On March 22 he left the house, and brought an action demandingthe return of his furniture. On September 27 that action wassettled; the father-in-law agreed to hand over the furniture, andthe wife incidentally agreed to go with her husband, and to live onhis leased land at Mirissa.
An attempt was made to carry out this settlement, and this isthe crucial period of the story. The wife went off straight fromCourt with her husband and the two children, without taking anyof her things. The next day, September 28, they went to Kataluwa
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in order to enable the wife to get them, and stayed with the husband'saunt. On September 30 the wife left her husband saying she hadbeen threatened and ill-treated. Both parties made a complaint tothe headman, but the wife was persuaded to return to her husband.Hie couple then lived together from October 1 to October 19. butobviously under very unliapppy circumstances. TJp to October 11,they were in the husband’s aunt's house at Kataluwa, and afterthat they stayed at another house belonging to a man called PremaChandra. The Mirissa house was, apparently, not ready for occu-pation. On October 4 the husband addressed a very extraordinarypetition to the District Judge. He recited the story of their disagree-ments in some detail declaring that bis wife was of a head strongquarrelsome character, and a wicked demon,” and that he himselfwas a ** helpless orphan.” He observed that he ** had made aterrible blunder in having liis wife returned back to him who is aquarrelsome and incorrigible wicked woman to deal with, and itwould appear from her behaviour within the last couple of days,began with bickerings and unrest to the petitioner as he is absolutelydestitute of relations and friends.” He begged the District Judge to” release him as he anticipates danger to his life and is at stake ifremains with his wife.” The state of friction indicated by thisletter continued. The wife says that a- promise was made to herthat they should be taken to her husband’s mulyedera at Kataluwa.On October 19 the wife ran away .from her husband eariy in themorning before he awoke, and returned to her father’s house. Shealleges that her husband threatened to kill her if she did not go.The husband took the headman to his wife, and she then said thatshe could not go to Mirissa and reside there, but that she was willingto go to her parents’ house. A further reconciliation proved im-possible, and in January, 1923, the wife instituted maintenanceproceedings. In Court, on February 17, the husband declared thatthe wife would not live with him. Nothing on this point was saidby the wife. It was intimated that the husband intended toinstitute divorce proceedings. An interim order was made, andthe divorce proceedings instituted, the grounds of these proceedingsbeing malicious desertion. The learned Judge observes in hisjudgment: “ I think she would not object to a continuance of themarriage, provided the plaintiff lived with her in her father’s house,or even at Kataluwa in plaintiff’s nvulgedera, about a mile awayfrom her father’s house, hnfc she knows that the plaintiff will notconsent to either of these proposals, as that would mean living tooclose to her parents.”
These being the facts, let us now consider the law. The Boman-Dutch law, apart from causes which are considered to rendermarriage a nullity, recognizes two grounds for divorce: (1) adulteryand (2) malicious desertion. This is now embodied in section 20 ofour own Marriage Registration Ordinance, No. 19 of 1907. The
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Silva v.M iatinona
Dutch jurists asserted that thede two causes for divorce wererecognized by the “ divine law.” See, for example, HuberPrmlectiones, vol. III., p. 1203.
“ Moribus hodiemis sequimur iu8 divinum novi foederis, quo duic-tardum causa cognoscuntur, advlterium, item, malitiosadesertion"
See also Bcekelmann, part II., p. 146 “ duas causas, hire divinoprobatas, 12. ob malitiosam desertionem.
When we inquire from what source the Dutch jurists conceivedthe idea that divorce for malicious desertion was sanctioned bydivine law, we learn, not perhaps without some surprise, that thissource is to be found in the 15th verse of St. Paul’s First Epistle tothe Corinthians, 7th chapter. There St. Paul is dealing with thecase of an “ unbelieving husband ” married to a ” believing wife ” andvice versa^ and he observes: ” Yet if the unbelieving departeth,let him depart: the brother or the sister is not under bondagein such cases: but God hath called us in peace.” The Greekword for ” depart ” is also used to denote matrimonial separation.This text, it is true, only relates to separation between believers andunbelievers, but Huber observes that the principle applies to allcases:—
'* Loquitur de infideli coniuge fidelem deserente sed ratio ad omnespertinet."
and he adds that this extension of the text was everywhere receivedin the Protestant churches—
*' Atque lure extensio ab infidelibus ad quoslibet, suos coniugesmalitiose, id est earn animo nunquam redevndi, vel seconiugendi, deserentes, ubique in Protestantium Ecclesiisrecepta est."
Dutch jurists and theologians appear not to have been embarrassedby another text in the same context referring to “ believers,” versexi.:“ But if she depart let her remain unmarried, or else be re-
conciled to her husband.” See Wesenbecius, XXIV., 2, 16.
It will be observed that in all cases the desertion thus recognizedas a cause for divorce is referred to as malicious desertion.” I havenot been able to find the origin of this word, but it clearly impliessomething in the' nature of a wicked mind. It means a deliberateand unconscientious, definite, and final repudiation of the obligationsof the marriage state. As some of the passages I have quoted indi-cate, it must be sine animo revertendi. Van Leeuwen’s account ofit is as follows: —
‘‘ Quod omnino intelligendum de affeetata et malitiosa absentia, quaquis a coniuge discedit nulla i-usta aut necessaria causa coactus;sed levitate et malitiosa quadarn aliisqve non necessariis,neque probabilibus causis impulses, absque animo redevndiad couiugem, oberrat; "
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fcSee also the passage from Brouwer de hire connub. cited in 2 Brownon page 142.
" Malitiosus desertor eat, qui juata aut uecessaria causacoactust ex animi quadam levitate et malitia, vel impotientiafreni cOniugalis uxoris et liberorum curam abjicitt eon deeerit,et oberrat, sine animo redeundi 2, 18, 12, p. 618.
Malicious desertion is thus regarded by the Dutch jurists as a verydefinite and unmistakable thing, but, what is more, they recognizedthat the principle above explained was to be applied with very greatcaution and deliberation. See Voet XXIV, t 2, 9. It was onlyto be applied if it were clear on formal proceedings having beeninstituted that the offending spouse had been cited to appear, andthat the desertion complained of was a repeated desertion, and that1he offending spouse had contumaciously refused to return tomarried life. Voet further observes in paragraph XI. that evenafter judgment for desertion and separation, attempts should bemade to bring about concord to the full extent to which this ispossible. The same principle has been adopted in South Africa.See Gibbon v. Gibbon 1 per Shippard J., cited in Nathan, 2nd ed.tvol, I., on page 306.“ The theory of the Boman-Dutch law appears
to have been that divorce should never be.granted while thereremained a hope of reconciliation. In cases of alleged maliciousdesertion the Courts required proof that no such hope remained,and therefore would not dissolve a marriage on such ground till afterproof of contumacious disobedience of a decree of restitution ofconjugal rights.” Our own procedure gives an apportunity forthe application of the same principle through the fact that everydecree for divorce is, in the first instance, a decree nisu The periodof three months before it is made absolute is only a minimumperiod, and in cases of alleged malicious desertion this preliminaryperiod should, in my opinion, be substantially longer, and we shouldgive effect to the principles of the Eoman-Dutch law by holdingthat in cases of malicious desertion the object of this interval is to.allow an opportunity for reconciliation, and that the decree shouldnot be made absolute, unless it appeared that the -complainingspouse had, in the interval, provided a reasonable opportunity for aresumption of married life, and that this had been contumaciouslyand unreasonably refused by the other party.
If one now refers to the facts in the light of these principles, it isclear that no case of malicious desertion has. been made out. Theremay have been desertion, but it was certainly not malicious, and, inparticular, it is certainly not established that it took place sine animo■redeundi. The institution of marriage would be in a perilous positionif, when husband and wife quarrelled about the place where theyshould reside, and the wife, during a state of friction took refuge
* 2 E. D. C. 284.
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with lier parents, it was held that these faots of themselves entitledthe husband tp a decree for divorce. I am not able to see in thiscase that during the material 'period the husband ever definitelyput at the disposal of his wife a home where she could go and livewith him. She left him at a period of mutual exasperation, whenhe hirwsftlf was anxious to get rid of his wife, and it seems to me quiteimpossible that her conduct should be regarded as malicious. Evenin this very action he himself declared in his evidence. " If I takemy wife with me there is no doubt that she would kill me. I amnot willing now to take her to a house at Kataluwa. She wouldpoison me. I am not now willing to live with her in any house/'These are clearly not circumstances in which the remedy of theBoman-Dutoh law would be granted.
I recognize that the situation of the parties to this marriage is nowa very unfortunate one. It is now nearly two years since they havelived together, and it may very well be that the wife would nowunder any circumstances refuse to return to her husband. Thequestion naturally presents itself, whether it might not be con-venient to retain the decree nisi, and to allow a year’s interval inwhich the husband should be called upon to offer reasonable facilitiesto his wife for the resumption of married life, the decree beingmade absolute, if the wife contumaciously and unreasonably refusedto take advantage of the opportunity so afforded to her. There is acase, D. C. Colombo, 55,353, reported in Vanderstraaten, (1860-71),p. 837, which seems at first sight to be a precedent for such a course,but on careful consideration I do not think that it is so. The Courtin that case made the decree absolute because 'no appeal had beentaken against the decree «/«/, and the parties had not come togetherin the interval. I think that it would be dangerous to allow a decreenm to be granted, unless there were definite grounds to justify theCourt in finding malicious desertion.
I would therefore allow the appeal, with costs in both Courts,but I trust the learned District Judge, who will have to communicatethis judgment to the parties, will explain to them (and, if I may sosuggest, in Chambers) that it is their duty, for the sake of boththemselves and their children, to effect a reconciliation; that thewife ought to live in a residence reasonably chosen for her by herhusband, if such a residence is put at her disposal, and if sliQ istreated by her husband with due conjugal affection; and that sheought not to insist on living, either with her parents, or in theirimmediate neighbourhood; and that, if t-lie husband does infact put such home at her disposal, and after this warning sheunreasonably refuses it, it will be competent for the husband toreinstitute fresh proceedings of a similar nature.
SILVA v. MISSINONA