Pathmanayaky v Mahenthiran
MAHENTHIRANCOURT OF APPEALTILAKAWARDENA, J. (P/CA)
D.C. PT. PEDRO (FAMILY COURT) 290/FCAUGUST 15, 2003
Civil Procedure Code – Section 602 and 608(2)b, General MarriagesOrdinance – section 19(2) – Divorce under section 608(2) – Can a Divorce begranted – Establish matrimonial fault – Wilful Non consummation of Marriage- Is it a matrimonial offence? – Breakdown of marriage.
The petitioner invoked the jurisdiction of the Family Court on the ground thathis marriage to the respondent was not consummated, the parties nevercohabited, they lived separately from the date of registration upto date of filingaction. The petitioner also averred that the separation was over a period of 7years and prayed that the decree for the dissolution of marriage in terms ofsection 608(2)b be entered. The respondent-appellant resisted the applicationclaiming that the petitioner is not entitled to seek a divorce in terms of section608(2).
The Trial Court granted the divorce as prayed for.
ON APPEALHeld :
It is imcumbent on a spouse seeking a divorce under section 608(2) CivilProcedure Code on the ground of separation for a period of seven yearsto establish matrimonial fault.
In the present case parties have lived away from each other since theregistration of marriage and both parties agree that there was no co-habitation of the spouses.
It is apparent that the non consummation of the marriage was owing tothe wilful refusal of the husband to copulate,' since he left the marriageceremony immediately after the registration and continues to live awayfrom the defendant-appellant.
Sri Lanka Law Reports
 3 Sri L.R
Plaintiff-respondent who wilfully refused to copulate is guilty of matrimo-nial offence of malicious dereliction, malicious refusal of carnal inter-course, the wilful refusal of the husband to copulate is sufficient groundfor dissolution of marriage.
Per Wijeyaratne, J.
“Although the plaintiff has sued for divorce on the ground of separationfor over a period of 7 years, the evidence on record unequivocally estab-lishes the complete breakdown of the marriage."
APPLICATION under section 769 of the Civil Procedure Code.
Cases referred to :
Muthuranee v Thuraisingham 1984 1 Sri LR 381
Tennakoon v Somawathie Perera alias Tennakoon 1986 1 Sri LR 90
Wijeratne v Wijeratne 47 NLR 324
H.John Perera v H. Mathupali 71 NLR 461
Seneviratne v Ran Hamy 29 NLR 97
Muthukrishna for respondent-appellant
P. Nagendra, P.C. with A. Chinnaiah for petitioner-respondent.
September 30, 2003.
WIJAYARATNE, J.This is an appeal preferred from the judgment and decree dated10.02.84 entered of record in the Family Court of Point Pedro, CaseNo.290/Divorce. The judgment is given in favour of the petitionergranting divorce a Vinculo Matrimonii from the respondent-appellantand ordering payment of permanent alimony in a sum of Rs. 25,000/=or a monthly payment of Rs.250/- by way of alimony.
The petitioner invoked the jurisdiction of the Family Court(District Court) of Point Pedro on 28.10.1981 on the grounds thathis marriage to the respondent as evidenced by the marriage cer-tificate marked P1 dated 08.04.1974, though duly registered, wasnot consummated. It was stated that marriage was confined to reg-
Pathmanayaky v Mahenthiran
istration only and there was no ceremony gone through. The par-ties, who never cohabited, lived separately from such date of reg-istration unto date of filing action. The petitioner who averred thattheir separation was over a period of seven years, prayed thatdecree for the dissolution of marriage in terms of section 608(2)(b),be entered. The petitioner also averred in the course of his petitionthat the respondent-appellant had filed maintenance proceedingsbefore Magistrate wherein he was ordered to pay Rs.100/- month- •ly and the respondent-appellant filed action in the District Court of 20Point Pedro for the recovery of dowry money in a sum ofRs. 10,000/- which he paid with interests due.
The respondent-appellant answered the petition admitting thather marriage to the petitioner was confined to mere registration andmarriage ceremony was not celebrated nor was there any con-summation of marriage. She also admitted the facts of her beingpaid monthly a sum of. Rs.100/- by way of maintenance and thatshe received such dowry money with interests consequent to herfiling action for the recovery of the same. It was also admitted thatearlier action filed by the petitioner seeking declaration of nullity of 30this marriage was dismissed. However, the respondent-appellantresisted the application for the dissolution of their marriage claim-ing that she was prepared to "regularise" the marriage and the peti-tioner is not entitled to seek a divorce in terms of section 608(2) ofthe Civil Procedure Code. The respondent claimed alimony eitheras a monthly payment or as lump sum payment; in the event of adivorce being granted.
The trial proceeded on six issues suggested by parties andtestimony of the petitioner, his witnesses and the respondent. Thelearned District Judge having considered the evidence and the sub- 40missions made by the parties answered all issues except issueNo.5 in the affirmative and granted divorce and ordered payment ofalimony in a lesser sum than claimed by the respondent-appellant.
The respondent-appellant appealed from this judgment andthe main thrust of the appeal is that :
Provisions of section 608(2)(b) which became operative onlyon 15.12.1977 has no retrospective effect and hence anyperiod of separation prior to such date cannot be counted forthe application of such provisions,
Sri Lanka Law Reports
[2003) 3 Sri L.R
Section 608(2)(b) cannot have any application independentof section 19(2) of the Marriages (General) Ordinance.
When there is no consummation of marriage there cannot bea separation as envisaged under section 608(2)(b) of theCivil Procedure Code.
The question whether the provisions of Section 608(2)(b) hasretrospective effect is decided by this court in Muthuranee vThuraisingham^h It was held,
(2) The amendment introducing section 608(2)(b) into CivilProcedure Code created new ground for divorce for the futureand is in truth not retrospective. To hold that the period ofseven years must be reckoned only from 15.12.1977 would ineffect render the amendment a dead letter and sterile on thestatute book for a period of seven years from this date. Section608(2)(b) applies even to cases where parties have been sep-arated a mensa et thoro for more than seven years prior to thesubsection coming into operation".
Accordingly the application of the petitioner made to court on28.10.1981 alleging separation since the date of marriage of08.04.1974 is within the ambit of the aforesaid provisions of law.
The decision of the case of Tennakone v Somawathie Pereraalias TennekoneW held,
"It is incumbent on a spouse seeking a divorce under section608(2) of the Civil Procedure Code on the ground of separa-tion for a period of seven years to establish matrimonial fault.Only a procedural change enabling summary procedure to beused instead of a regular action was effected by section608(2) of the Civil Procedure Code”.
This decision of the Supreme court overruled the decision ofMuthuranee v Thuraisingham (supra) in so far as the same ruledthat,
“All that an applicant for divorce decree need establish undersection 608(2)(b) is a cessation of cohabitation for a period ofseven years; it is not necessary to prove the conditions necessaryto obtain a decree of separation”.
Pathmanayaky v Mahenthiran
In overruling that point only of the above rule, Sharvananda,
CJ, with other three Judges agreeing stated,
“The view of Atukorale, J. in the present case is preferable tothat of Tambiah, J. in Muthuranee v Thuraisingham (supra)and hence the latter should be overruled on this point. Thecorrect legal position is that only a spouse who has lived in 90separation a mensa et thoro for seven years and who canestalish a mensa et thoro on any ground on which by our lawsuch separation, may be granted can avail himself/herself ofthe procedure set out in section 608(2)(t>) of the CivilProcedure Code to obtain a decree of dissolution of marriageunder that section.”
In the present case parties have lived away from each othersince the registration of marriage and both parties agree that therewas no cohabitation of the spouses. This position has continued upto the date of trial. In fact the plaintiff-respondent had sought though- 100unsuccessfully to have the registration of the marriage annulled asfar back as 1978, the defendant-appellant had expressed her will-ingness to cohabit with the plaintiff-respondent but there is no evi-dence to the effect that she has made any serious attempt to livetogether with the plaintiff-respondent. On the contrary she hadadmittedly resorted to legal action for the recovery of the dowry givenand for obtaining maintenance from the plaintiff-respondent. There isno evidence in the present case to the effect that even before thelearned Magistrate inquiring into the application for maintenance, thedefendant-appellant did make any serious attempt to end the sepa- 110ration. All actions taken on her part too indicate that there was noserious effort to continue this marriage, and it appears from all thematerial evidence available that neither party is serious in cohabiting.
It is apparent that the non consummation of the marriage was owingto the willful refusal of the husband to copulate, since he left the mar-riage ceremony immediately after the registration and continued tolive away from this defendant-appellant.
Thus it may he said that the plaintiff-respondent who willfullyrefused to copulate, is guilty of matrimonial offence of maliciousdesertion. In the case of Wijeratnev Wijeratne(3) it was held, "that 120the desertion being a willful Malicious refusal of carnal inter-
course the willful refusal of the husband to copulate is sufficientground for dissolution of marriage"
Sri Lanka Law Reports
 3 Sri L.R
In the case of H. John Perera v H. Mattupalffl, it was held that"despite the plaintiff’s matrimonial offence and his delay in fil-ing the action, it was apparent that the marriage had com-pletely broken down and with due regard to the sanctity ofmarriage, there was hardly a reason why the marriage tieshould continue. In the circumstances the discretion vested inthe court by the proviso to section 602 of the Civil Procedure 130Code should be exercised in favour of the plaintiff"
The above rule eminently fits the facts of the present case.
The plaintiff-respondent's willful and persistent refusal to cop-ulate had completely broken down the marriage between theparties and there is no reason why the marriage tie shouldcontinue. Although the plaintiff has sued for divorce on theground of separation for over a period of seven years, the evi-dence on record unequivocally establish the complete breakdown of the marriage. It is in the interest of respondent-appel-lant to dissolve the marriage as,140
“The case of the respondent-appellant as to whom there wasno prospect that refusal of relief (divorce) would have theeffect of reconciling her with the petitioner" Vide Seneviratne vPanishamy^
The learned trial Judge in the course of his judgment has con-sidered the fact that "evidence led in this court also shows thatapart from the seven years period (of separation) he has groundsfor divorce. Although he has not specified such grounds, the evi-dence of both petitioner and the respondent unequivocally estab-lished that there was non consummation of the marriage since 1501971 even as at the date of the trial in 1984 amounting to maliciousdesertion on the part of petitioner who willfully refused to copulate.
That is sufficient ground to dissolve a marriage and thelearned trial judge is correct in granting divorce. We see no reasonto interfere with the finding of the learned trial Judge.
Accordingly the appeal is dismissed without costs.TILAKAWARDENA, J. (P/CA)- I agreeAppeal dismissed.
PATHMANAYAKY v. MAHENTHIRAN