COURT OF APPEALWEERASEKERA,J„
WIGNESWARAN, JC.A. 30/91 (F)
O.C. COLOMBO 14517/DJANUARY 2, 1996JANUARY 13,1997.
Divorce – Malicious desertion – Issues – Duty of the Judge – Jurisdictioncircumscribed by dispute.
The plaintiff respondent was granted a Divorce on the ground of maliciousdesertion, the defendant-appellant was denied alimony on the ground that shewas guilty of malicious desertion The custody of the child was given to thedefendant-appellant.
It was contended in appeal that the plaintiff-respondent prayed to Court todetermine the bonds of his marriage by reason of alleged acts of cruelty by thedefendant-appellant culminating in an incident on 29.10.89, by which the plaintiffrespondent was forced to leave the matrimonial home, but issue No. 1 wascompletely different, to what was pleaded and was in fact completely different tothe dispute placed before court for adjudication, and it was further contendedthat court had not only misdirected itself but also exceeded the limits of itsjurisdiction with regard to the dispute.
‘It must always be remembered by Judges that the system of civil law thatprevails in our country is confrontational and therefore the jurisdiction of theJudge is circumscribed and limited to the dispute presented to him foradjudication by the contesting parties.
Our civil law does not in any way permit the adjudicator or judge the freedom ofthe wild ass to go on a voyage of discovery and make a findings as he pleasesmay be on what he thinks is right or wrong, moral or immoral or what should bethe correct situation. The adjudicator or Judge is duty bound to determine thedispute presented to him and his jurisdiction is circumscribed by that dispute andno more.’
'Though in practice Counsel appearing for the plaintiff or defendant do suggestthe issues, it is the prime responsibility of the Judge to frame issues, this is moreso because it is ultimately the Judge who should make a finding and without clearunderstanding of the dispute and the issuer ‘hat he has to determine it would bea most dangerous exercise to embark upoi ”
(i) Even if issue (1) with its inherent infirmity is considered the plaintiffrespondent had failed to satisfactorily establish that on 29.10.89, he was forced toleave the matrimonial home as alleged by him.
APPEAL from the Juri-:■ -• of the District Court ol Colombo.
M. H. B. Morais for defendant-appellantNo appearance for plaintiff-respondent.
Cases referred to;
In the matter of the Estate and Effects of Don Cornells Warnasuriya – 2 NLR144.
Cur adv. vutl.
February 06,1997WEERASEKERA, J.
This is an appeal from the judgment of the learned AdditionalDistrict Judge of Colombo dated 01.02.91. By the said judgment theplaintiff-respondent was granted a divorce on the ground of maliciousdesertion whilst the custody of the only child Deepthi was given tothe defendant-appellant and an order for maintenance in favour ofthe said child payable by the plaintiff-respondent in a sum ofRs. 1,250/- per month was made, The defendant-appellant wasdenied alimony on the ground that she was guilty of maliciousdesertion.
The plaintiff-respondent was noticed to appear and wasrepresented on some days but was absent and unrepresented on theday the appeal was fixed for argument and thereafter. Writtensubmissions were filed on behalf of the defendant-appellant who wasrepresented by Counsel after making initial oral submissions.
I regret to state that the learned Additional District Judge hascompletely misdirected himself from the very commencement of thetrial not only with regard to the dispute that was before him foradjudication but also with regard to the reliefs prayed for.
It must always be remembered by judges that the systems ofCivil Law that prevail in our country is confrontational andtherefore the jurisdiction of the judge is circumscribed andlimited to the dispute presented to him for adjudication by thecontesting parties. For example, the plaintiff presents to Court adispute and prays for adjudication and the defendant or partyfrom whom a relief is sought denies or opposes the claim of theplaintiff. The adjudicator or judge thereafter proceeds todetermine the issues in conflict. After deciding as to who shouldprove what is asserted he proceeds to receive evidence vivavoce and/or documentary and thereafter evaluate the evidence offacts and law and proceeds to give his finding. In that situationour Civil Law does not in any way permit the adjudicator or judgethe freedom of the wild ass to go on a voyage of discovery andmake a finding as he pleases may be on what he thinks is rightor wrong, moral or immoral or what should be the correctsituation. The adjudicator or judge is duty-bound to determinethe dispute presented to him and his jurisdiction iscircumscribed by that dispute and no more. The exception to thisrule may be where parties waive irregularity in proceedings andco-operate to call upon Court to adjudicate. (Vide In matter of theEstate and Effects of Don Cornells Warnasuriya)*'1.
In this instance the learned Additional District Judge hascompletely failed to understand what his duty was when this disputewas presented to him for determination and has thereforemisdirected himself.
By his plaint dated 21 st June 1989 the plaintiff-respondent allegedcruelty on the part of the defendant-appellant and in paragraphs 8and 9 thereof pleaded specifically that on 29.04.89 he was abusedand ordered out of the matrimonial home at 6A. Torrington Flats andthat he left the matrimonial home. He alleged that this act of thedefendant-appellant amounted to constructive malicious desertionand claimed a divorce from- her on the ground of constructivemalicious desertion. The defendant-appellant denied this allegation
and alleged that the plaintiff-respondent developed a clandestineliaison with one Pushpa and that the allegation of cruelty by thedefendant-appellant was a ruse to be separated from her.
This was the dispute before Court. But unfortunately the issues onwhich the trial proceeded were as follows:
I quote the relevant issues 1 and 6(4) as they were recorded inSinhala.
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The facts pleaded in paragraphs 5 to 9 of the plaint allegedconstructive malicious desertion on the ground of cruelty.
The answer to issue one (1) was in the affirmative and the answerto issue 6(4) was that “as the defendant was guilty of maliciousdesertion she was not entitled to alimony".
Though in practice Counsel appearing for the plaintiff anddefendant do suggest the issues it is the prime responsibility of thejudge to frame issues. This is more so because it is ultimately thejudge who should make a finding and without a clear understandingof the dispute and the issues that he has to determine it would be amost dangerous exercise to embark upon. A misunderstanding ofwhat is expected of him gives no other result but an incorrect findingand a bad .judgment, in this instance the parties to the disputenamely the plaintiff-respondent prayed to Court to determine thebonds of his marriage by reason of alleged acts of cruelty by thedefendant-appellant culminating in an incident on the 29th ofOctober, 1989 by which the plaintiff-respondent was forced to leavethe matrimonial home. Issue No. 1 was completely different to whatwas pleaded and was in fact completely different to the disputeplaced before the learned Additional District Judge for adjudication. his jurisdiction with regard to the dispute which he had to adjudicateupon. For this reason alone the appeal must be allowed.
Moreover even taking the issues as they are there is no evidenceat all on an examination of the evidence of the plaintiff-repondent andthat of the defendant-appellant to support a finding that thedefendant-appellant was guilty of malicious desertion. The evidenceof the plaintiff-respondent was that he was subject to acts of crueltyby the defendant-appellant as evidenced by P2, P3. P4 and P5 andthat he was forced to leave the matrimonial home which was 6A.Torr.ington Flats on 29.10.89. The evidence was not that thedefendant-appellant left the matrimonial home. The affirmative findingon issue 1 therefore, which I am of the view is a misdirection by itself,cannot be supported by the evidence to establish either constructiveor malicious desertion by the defendant-appellant. Thus even if issue1 with its inherent infirmity is considered the plaintiff-respondentfailed to satisfactorily establish that on 28.10.89 he was forced toleave the matrimonial home as alleged by him. To accept P2 to P5mainly because they were statements made to the police by theplaintiff-respondent is but a puerile and fallacious exercise. In anyevent it was no one’s case that extreme cruelty was the ground fordivorce. The close temporal proximity in which P2 to P5 had beenmade and that too just before action was filed does lead them to beviewed with care and circumspection. They may have been madewith a view to bolster a case. Furthermore it was unreasonable on thepart of the Court to have expected the defendant-appellant toproduce documentary evidence with regard to plaintiff-respondent'sintimacy with Pushpalatha.
For these reasons I allow the appeal and set aside the judgment ofthe learned Additional District Judge dated 01.02.91. The plaintiff-respondent's action is dismissed with costs. The defendant-appellantwill be entitled to taxed costs on account of this appeal.
WIGNESWARAN, J. -1 agree.
PATHMAWATHIE v. JAYASEKARE