COURT OF APPEAL.
CA. NO. 651/98(F)
D.C. Embilipitiya 4966/DOctober 31. 2000
Matrimonial Action – Nullity – Breakdown of the marriage – Non consumma-tion of the marriage – Divorce on tide ground of desertion not pleaded as acause of action – Can the Court of Appeal grant'd Divorce?
The Plaintiff – Appellant filed action for de^ration of nullity and for thedissolution of the Marriage. The Defendant – Respondent mteed for thedismissal of the action. The District Court dismissed theVlain tiffsaction.
On appeal, it was contended that –
That the Trial Judge had considered only the prayer relating tonullity’ but not the application for dissolution of marriage;
® The Trial Jtfdge failed to consider the complete breakdown of the
The Trial Judge failed to consider the fact bi non-conSupimation ofthe marriage;
(e) That the Court had a discretion to grant a divorce;
There was evidence placed before the original court that there wereadequate grounds to grant a divorce, if divorce on the ground of maliciousdesertion, constructive or otherwise was pleaded as a cause of action;superficially there is in fact a prayer for the grant of a divorce.
1. It appears that there had been a complete breakdown of the
marriage after registration.
Except for the signing of the certificate of marriage parties hadnot lived together.
The amended plaint had not placed alternative causes of action,
the averments dealt with nullity only. However the second prayerin the amended plaint dealt with the granting of a Divorce.
Ajtth Kulatunga v. Shiromala
The parties are desirous to end their marital bond with nopossibility of reconciliation whatsoever in sight.
Appeal from the Judgment of the District Court of Embilipitiya.
Cases referred to :
H. John Perera vs H. Mathupali – 71 NLR 461
Lowry vs Lowry -1967 -1 WLR 789 at 791
Jayatissa Herath for Plaintiff- AppellantW. Dayaratne for Defendant – Respondent
Cur. adv. vult.
October***!, 2000.WIGNESWARAN, J.
The Plaintiff-Appellant filed this action for declaration ofnullity and for the dissolution of the marriage entered on23.01.1992 between the Plaintiff and the Defendant.
The Defendant-Respondent moved for the dismissal of tileaction and for costs of action.
By judgment dated 23.07.1998 the District Judge,Embilipitiya dismissed the Plaintiffs action awarding costs ofaction to the Defendant-Respondent.
This was an appeal against the said judgment dated
On 19.06.2000 a settlement was reached between partieswherein the Plaintiff-Appellant and Defendant-Respondenttogether with their respective Attomeys-at-Law signed a docu-ment containing terms of settlement consenting to a declara-tion of nullity and waiving costs of action ordered in thejudgment dated 23.07.1998.
This Court rejected the said settlement.
Sri Lanka Law Reports
 2 Sri L.R.
Thereafter written submissions have been filed by thelearned Counsel for Plaintiff-Appellant wherein he has sub-mitted as follows: –
The learned District J udge had considered only prayerrelating to nullity but not the application for dissolu-tion of marriage.
The learned District Judge had failed to consider thecomplete breakdown of the marriage between parties.
(iff) The learned District Judge had failed to consider thefact that there had been no consummation of themarriage.
The Defendant did not give evidence and did notcontradict the fact of the breakdown of the marriageand non-consummation of the marriage.
Court had discretion in cases of this nature to granta divorce. H. JohnPerera Vs. H. Mathupali,(1> referred to.
– No writtch submissions were filed by the Counsel for theDefendant-Respondent contradicting the viewpoints of theCounsel for the Plaintiff-Appellant.
The abovesaid submissions of Counsel for the Plaintiff-Appellant would now be examined.
The learned District Judge has found th'at there had beena valid marriage. But there is no doubt that there had been acomplete breakdown of the marriage after registration.
The amended plaint had not placed alternative causes ofaction. The averments in the plaint dealt with nulliiy only, (videparagraph 7 of the amended plaint). Yet the second prayer inthe amended plaint deals with the granting of a divorce.Possibly it was inserted on a misunderstanding by the learnedAttomey-at-Law for the plaintiff that a formal granting of adivorce was necessaiy after declaration of nulliiy. A declara-
Ajith Kulatunga v. Shiromala
tion of nullity would mean the contract of marriage was abinitio void. A divorce would presuppose the existence of a validmarriage.
It is the insertion of a prayer for divorce in the amendedplaint which has given rise to the abovesaid submissions of thelearned Counsel for the Plaintiff-Appellant.
It is easy to brush the submissions of the learned Counsel forthe Plaintiff-Appellant aside on the basis that no cause of action’ for divorce was pleaded in the amended plaint except for nullity.
But it is useful to remember the dictum of Justice deKretser in H. JohnPgrcra Vs. H. Mathupali (supra) at 465whichreads as follows:
"It apper s to me that when a Court is satisfied, that themarriage between the parties is truly at an end it should exerciseits discretion with a view to rehabilitate and not to punish."
The following reasons mentioned by the learned Counselfor the Plaintiff-Appellant no doubt appear as valid groundswhich could have prompted a Court of First Instance to granta divorce in a case where a valid marriage has beeL °stablished: –
Except for the signing of the Certificate of Marriage,parties had not lived together.
There had been no consummation of the marriage.
The Defendant did not choose to contradict theevidencefled by the Plaintiff on the above two matters.She did not give evidence nor lead any evidence on herbehalf.
Added to these grounds, the parties, we find are desirousto end their marital bond with no possibility of reconciliationwhatsoever in sight.
Willmer L.J. said in Lowry Vs. Lawn/21 at 791 referring tothe order of the Original Court Judge "He had to balance theconsideration of respect for the sanctity of marriage (which isof particular importance in the present case in view of the
Sri Lanka Law Reports
12001] 2 Sri L.R.
wife's conscientious objections to divorce) against the publicinterest which is involved in the question whether it is right tokeep in being, a marriage which has so obviously and sohopelessly and completely broken down.
To refuse a divorce in this instance merely because a causeof action had not been specifically pleaded on a ground ofdivorce would be to inflict much punishment mentally as wellas financially on the parties.
We are no doubt satisfied on the evidence placed before theOriginal Court that there were adequate grounds to grant adivorce if divorce on the ground of majjpious desertion, con-structive or otherwise, was pleaded as h cause of action.Superficially there is in fact a(prayer "b") for the
granting of a divorce.
We therefore confirm the judgment of the learned DistrictJudge in coming to a finding that there were no grounds1established for nullity but set aside his order dismissing thePlaintiff-Appellant’s action and granting costs in a sum of Rs.2500/= to thellepartment-Respondent. Instead we order thatadequate greunds having been adduced the marriage enteredupon between the parties on 23.01.1992 be set aside anddecree nisi be entered by the learned District Judge, Embilipitiyagranting the Plaintiff-Appellant a divorce from the Defendant-Respondent on the ground of constructive maliciousdesertion.
Parties shall bear their own costs. Registrar shall forwardoriginal record to the District Court of Embilipitiya without delay.
Judgment that there were no grounds established fornullity confirmed. But order dismissing Plaintiffs action setaside. Decrees Nisi be entered granting the plaintiff-Appellanta divorce.
TILAKAWARDANE, J.1 agreeAppeal allowed
AJITH KULATUNGA v. SHIROMALA