Muzamn v REPIA 'Tambtah, J;
COURT OF APPEAL
ATUKORALE, J (PRESIDENT). AND T. D J DE ALWIS. J.
CA No 287/79 (F) , DC COLOMBO No 10740/D.
JULY 2 AND 3. 1984
Divorce – Civil Procedure Code, section 608 12) (b) – Whether separation a mensa etthoro for seven years by itself is a ground for divorce
The respondent obtained a decree for dissolution of marriage under section 608(2) (b)of the Civil Procedure Code on proof that he and the appellant had been living inseparation for over seven years prior to the institution of the action. The District Judgeheld that on proof of such separation the court was obliged to grant a divorce at theinstance of either spouse and that it was unnecessary to decide whether the spousesuing for a divorce was the innocent or guilty party.
The primary objective of section 608 (2) of the Code is to make provision for a quickerand cheaper procedure for obtaining relief in matrimonial cases and not to alter thesubstantive law upon which marriages can be dissolved To entitle a petitioner tojudgment dissolving a marriage an application made under section 608 (2) mustcontain a statement of matters that are required to be set out in terms of section374 [d] of the Civil Procedure Code, namely, a plain and concise statement of the factsconstituting the ground of the application and its circumstances upon proof of whichthe petitioner is entitled to the relief or order prayed for. A spouse seeking a divorce bysummary procedure must not only justify the procedure invoked by him or her but mustfurther plead and prove to the satisfaction of court that he or she is entitled to adissolution of the marriage upon any ground which by the law applicable to his or hermamage such d ssolution may be decreed
In the instant case the husband could not have succeeded in his claim for a divorce bymere proof of a seven year separation a mensa et thoro but it was incumbent on him toestablish further one of the three grounds of divorce prescribed in section 19 of theMarriage Registration Ordinance.
Sri Lanka Law Reports
 2 Sri L. R.
Cases referred to :
(1) Chapman v Chapman  3 All ER 1039(21 Muthuraneev Thuraisingham  1 Sri L R381
P' ns Gjnasekera with R. K. Suresh Chandra and Wimalachandra for thedefendant-appellant.
D R P Goonetilake with D Vithanage for the plaintiff-respondent.
Cur adv. vult.
September 5. 1984
This is an appeal by the wife (the appellant) against the judgmen't ofthe learned District Judge of Colombo granting her husband (therespondent) a decree for divorce under s.608 (2) of the CivilProcedure Code. The action was one instituted by the husband by wayof summary procedure against his wife praying for a divorce a vinculomatrimonii on the sole ground that they had been living in separation amensa et thoro for a period of over 7 years prior to the institution ofthe action. The wife denied that they lived in separation but thelearned trial judge rejected her evidence and reached the finding thatthe parties had been living in separation a mensa et thoro for a periodof 7 years prior to the filing of the action, as averred by the husband.He also held that on proof of such separation for such a period thecourt was obliged to grant a divorce at the instance of either spouseunder s. 608 (2) of the Civil Procedure Code and that it wasunnecessary for him to decide whether the spouse suing for a divorcewas the innocent or guilty party. Learned counsel appearing for thew fe before us whilst not seeking to challenge the factual finding ofseparation by the learned judge strenuously contended that thelearned judge erred in law in granting a divorce firstly becauses 608 (2) did not empower a court to grant a decree for thed ssolution of marriage upon the sole ground of a separation a mensaet thoro for a period of 7 years prior to the institution of the action and,secondly, because in any event even if it did empower a court to entersuch a decree the guilty spouse is not entitled to seek or obtain anyrelief under s. 608 (2) from court.
Adm ttedly the marriage between the parties was one that wascontracted and registered under the provisions of the MarriageReg.stration Ordinance. (Cap 112) It was the contention of learnedcc^se.' ‘or the appellant-wife that the only grounds upon which such a
Tennakoon v. Tennakoon (Atukorale. J.)
marriage could in law be dissolved are those that are set out in s. 19of the said Ordinance, namely, on the grounds of adultery subsequentto the marriage or of malicious desertion or of incurable impotency atthe time of marriage. He maintained that Chapter XLII of the Code onlyregulated the procedure that had to be followed in matrimonial actionsand that s. 608 which is one of the sections of this Chapter did notand was never intended to amend or alter the substantive law relatingto the grounds of dissolution of marriage as set out in S. 19 of theMarriage Registration Ordinance. He submitted that s. 608 (2) whichwas introduced by the Civil Procedure Code (Amendment) Law, No.20 of 1977 with effect from 15.12.1977, prescribed nothing morethan a summary procedure to which an innocent spouse may haverecourse in circumstances where there had been a separation a mensaet thoro between the parties for a period of 7 years prior to theinstitution of the application for a divorce. In other words hiscontention was that such a separation by itself did not constitute alegal ground for dissolution of the marriage but only entitled theinnocent spouse to institute, by way of summary procedure, anapplication for a decree dissolving the marriage upon any of thegrounds on which the marriage may by the law applicable to suchmarriage be dissolved. His contention, if I understood him correctly,was thus two-fold, firstly that factual separation for 7 years did notwarrant the grant of a decree for divorce under s. 608(2) andsecondly that even if it did, such decree could only be granted at theinstance of the innocent spouse.
Learned counsel for the respondent, on the other hand, submittedthat the judge was correct in holding that s. 608 (2) entitled him togrant either spouse a decree for divorce if it was established by eitherspouse to his satisfaction that the parties to the marriage had beenliving in separation a mensa et thoro for a period of 7 years prior to theinstitution of the application by way of summary procedure. Hecontended that this was the plain meaning of this section and that thecourt cannot and must not inquire into whose fault it was that themarriage had broken down. In his written submissions he has referredus to the Divorce Reform Act of 1969 in England according to theprovisions of which a separation for a 5 year period constituted anadditional ground for a dissolution of marriage in that country, videChapman v. Chapman (1), in which Lord Denning MR held that in 5year cases the court should not inquire into whose fault it was that themarriage has broken down. Learned counsel also relied on the
Sri Lanka Law Reports
 2 Sri L. R
decision of this court in the case of Muthuranee v. EliyathambyThuraisingham (2) which he submitted was a decision on the identicalpoint that arose for consideration in this appeal.
The main question that arises for our determination in the instantappeal is whether s. 608 (2) warrants the grant of a decree fordivorce upon proof of a 7 year period of separation between theparties to the marriage. As urged by learned counsel for the appellant,in approaching this legal question one has to keep in mind that the CivilProcedure Code, as the preamble denotes, is an enactment whichconsolidated and amended the law relating to the procedure of thecivil courts in the Island, that is of courts in which civil actions(including matrimonial actions) are brought. The Code is primarily aprocedural enactment prescribing the procedure that has to befollowed in a civil court in the adjudication and enforcement ofsubstantive rights between parties to a civil suit. S. 7 stipulates thatthe procedure of an action may be either regular or summary. S. 8provides that every action shall commence and proceed by a courseof regular procedure save and except actions in which it is speciallyprovided by the Code that the proceedings may be by way of summaryprocedure. Part I of the Code sets out the procedure to be followed inan ordinary regular action. Part II contains provisions relating tosummary procedure. Part III lays down the procedure to be followed incertain incidental matters including the continuation of an action afteralteration of a party's status, withdrawal and adjustment of an action,payment of money into court and the issue of commissions by court.Part IV consists of special provisions touching the proceduregoverning particular cases including actions by and against the Crown,actions by and against corporations and companies, actions by andagainst trustees, executors and administrators, testamentary actions,matrimonial actions and interpleader actions. Part V prescribes theprocedure relating to the grant of provisional remedies such as arrestand sequestration before judgment, injunctions, interim orders and theappointment of receivers. Part VI lays down the procedure in regard tospecial proceedings such as arbitration, agreements of parties andactions on liquid claims. Similarly Part VIII deals with the procedurerelating to appeals. Part IV aforementioned contains a specialChapter – Chapter XLII – setting out procedural provisions relating tomatrimonial actions. S. 596 (the first section of this Chapter) enactsthat pleadings in a divorce action or an action tor judicial separation orfor declaration of nullity of marriageshall be by way of plaint andanswer
Tennakoon v Tennakoon (Atukorale. J.)
as in an ordinary civil action and the procedure generally shall be thatprescribed with respect to ordinary civil actions subject, however, tothe provisions contained in that Chapter. S. 597 stipulates that anyhusband or wife (i.e. either spouse) may present a plaint to theappropriate District Court praying that his or her marriage may bedissolved on any ground for which marriage may, by the law applicablein Ceylon to his or her marriage, be dissolved. S. 602 states thatwhere the court is satisfied that the plaintiff has proved his or her case,the court shall pronounce a decree declaring the marriage to bedissolved. Similarly s.607 makes provision for either spouse topresent a plaint praying that his or her marriage be declared null andvoid on any ground which renders the marriage contract between theparties void by the law applicable to Ceylon. S. 608 (1) provides foreither spouse to apply by way of plaint for a judicial separation to theappropriate District Court which if satisfied after due trial of the truth ofthe statements in the plaint may grant a decree for separation. Thus itwould seem that prior to the enactment of s. 608 (2) by Law No. 20of 1977 either spouse could institute an action for dissolution of themarriage or for declaration that the marriage was void or for a judicialseparation on any ground upon which by the law applicable to Ceylonsuch relief could have been obtained by the spouse instituting theaction. The institution of the action was by way of a plaint. Thus itappears to me that at least in so far as an action for the dissolution of a•marriage was concerned, the spouse suing had to plead and establisha matrimonial fault or offence on the part of the spouse sued, thematrimonial fault or offence constituting the cause of action uponwhich was founded the plaintiff s claim for relief by way of adissolution of the marriage. Thus it was only the innocent spouse whocould in law have obtained a decree for divorce and that too (in so faras is applicable to the instant case) upon one or more of the threegrounds specified in s. 19 of the Marriage Registration Ordinance. Thequestion that arises for our determination is whether s. 608 (2)enacted on 15.12.1977 by Law No. 20 of 1977 has altered this legalposition. The relevant portion of this subsection reads as follows"(2) Either spouse may-
la) after the expiry of a period of two years from the entering of
a decree of separation under subsection (I)or
(b) notwithstanding that no application has been made undersubsection (I) but where there has been a separation amensa et thoro for a period of seven years,
Sri Lanka Law Reports
 2 SnL R.
applyby way of summary procedure for a decree of
dissolution of marriage, and the court may, upon being satisfiedthat the spouses have not resumed cohabitation in any casereferred to in paragraph (a), or upon the proof of the mattersstated in an application made under the circumstances referred toin paragraph (b), enter judgment accordingly
This subsection enabled, for the first time, either spouse to apply tothe appropriate District Court by way of summary procedure for adecree of dissolution of the marriage without proceeding by way ofplaint in the course of regular procedure. It also prescribed inparagraphs (a) and (b) aforesaid the circumstances under which suchan application by way of summary procedure may be made by eitherspouse. The circumstances specified in paragraph (a) or (b) must beshown to pre-exist before a spouse can have recourse to summaryprocedure for the dissolution of his or her marriage. In the instant casethe circumstances set out in paragraph (b) have been established toexist prior to the respondent's application for a decree for divorce. Thecrucial and decisive words in so far as the instant case is concerned
are therefore the following : "the court mayupon the proof of
the matters stated in the application made under the circumstancesreferred to in paragraph (b), enter judgment accordingly." What thenare the matters that are required to be stated in such an applicationand which 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 the factthat the spouses had been living in separation a mensa et thoro for aperiod of 7 years prior to the application. If these are proved, thecourt, learned counsel urged, is obliged to enter judgment dissolvingthe marriage. I cannot agree. As set out by me above proof of thematters specified in paragraph (b) above would only warrant recourseto summary procedure which is a speedy and inexpensive form ofprocuring relief. The matters stated in the application are in my view areference to the matters that have to be set out in terms of s. 374 (d)of the Code, namely, a plain and concise statement of the factsconstituting the ground of the application and its circumstances uponproof of which the petitioner is entitled to the relief or order prayed for
Tennakoon v. Tennakoon (Atukorale. J.)
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 he orshe is entitled to a dissolution of the marriage upon any ground whichby the law applicable to his or her marriage such dissolution may bedecreed. In the instant case therefore the husband could not havesucceeded in his claim for a divorce by mere proof of a seven yearseparation a mensa et thoro but it was incumbent on him to establishfurther one of the three grounds of divorce prescribed in s. 19 of theMarriage Registration Ordinance. It is my view that the primaryobjective of s. 608 (2) of the Code is to make provision for a quickerand cheaper procedure for obtaining relief in matrimonial cases andnot to alter the substantive law upon which marriages can bedissolved. I do not think that English decisions or the Divorce ReformAct of England are of any assistance in construing s. 608 (2) of ourCode. It is relevant to note that the Divorce Reform Act of 1969 is asubstantive piece of legislation which made provision for thedissolution of marriages which had broken down irretrievably.
I now turn to the decision of this court in the case of Muthuranee v.Thuraisingham (supra) relied upon by learned counsel for therespondent. There too one spouse sought a dissolution of themarriage on the ground of a separation a mensa et thoro for a periodof 7 years prior to the institution of the action. The application wasmade under s. 608 (2) of the Civil Procedure Code. The spouse whowas sued took up the objection that a guilty spouse cannot in thecircumstances set out in paragraph (b) of the above subsectionmaintain a claim for a divorce. The objection raised was that inaddition to cessation of cohabitation for 7 years, the spousepetitioning for a divorce must further prove the conditions necessaryto obtain a decree for separation. In other words, it was contendedthat the petitioner must establish a matrimonial fault on the part of therespondent spouse. The nature of the objection raised by theopposing spouse in that case shows that it was conceded therein thata 7 year separation did constitute a valid ground for a divorce. Thus itwould appear that the question of law arising for our determination inthe instant case did not arise for consideration of court in that case.Learned counsel for the respondent cannot therefore derive muchassistance from the decision in that case. For the above reasons Imake order allowing this appeal and dismissing the application of therespondent husband with costs in both courts. However in view of the
Sri Lanka Law Reports
 2 Sri L. R.
importance of the question of law involved in this case I grant therespondent leave to appeal to the Supreme Court on the followingsubstantial questions of law
whether separation a mensa et thoro for a period of 7 yearsconstitutes a valid ground for a divorce under s. 608 (2) ofthe Civil Procedure Code ;
if so, whether it is incumbent on the petitioner seeking adivorce under that subsection on such ground to establish amatrimonial fault on the part of the respondent to suchapplication.
T.D.G. DE ALWIS, J. – I agree.
TENNAKOON v. TENNAKOON