COURT OF APPEALWIMALACHANDRA, J.,
A.L. A. No. 161/2003
C. COLOMBO 20512/99DJULY 29, 2004
Civil Procedure Code, sections 151, 165 and 166 – Recalling of a witness -Evidence Ordinance? section 138 (4) – What factors should be considered -What is malicious desertion? – Animus discerendi.
The plaintiff-appellant instituted action for a divorce on the ground ofmalicious desertion. The defendant -respondent, while seeking the dismissalof the plaintiff’s action sought a divorce on the ground of malicious desertion ofthe plaintiff -appellant.
Nethasinghe (Marsoof, J. P/CA)
104Sri Lanka Law Reports(2005) 1 Sri L. R.
Alter the plaintiff-appellant concluded his case, the defendant-respondentcommenced giving evidence. Whilst he was giving evidence, the plaintiff-appellant indicated to Court that she possesses evidence that the defendantrespondent had married another person in December 2002, and in thecircumstances sought permission of Court to re – cross examine the defendant-respondent in terms of Section 166/165. This was refussed on the basis thatplaintiff-appellant filed action for divorce on the ground of malicious desertionand that the defendant -respondent had contracted the second marriage afterfiling of the action and that the right of parties would be decided as at the dateof institution of the action.
Per Wimalachandra, J.,
“If a party satisfies court that any avidence which is vital for that party toestablish his case'was not within his knowledge at the time his opponentwas giving evidence or when that party was leading evidence, in my view itis a matter which falls within the ambit of Sections 165 and 166; it is my viewthat there are valid reasons for the court to exercise its discretion to allowthe applicant’s application to re-cross examine the defendant-respondentunder Sections 165 and 166, purely for the purpose of eliciting the truth ofthe matter in' that whether the defendant – respondent left the matrimonialhome with animus discerendi".
The desertion must be malicious. A mere departure is not malicious. It' must be established that the spouse left the matrimonial home with the
intention of never returning;
The plaintiff-appellant should be allowed to re – cross examine thedefendant-respondent to establish that he had contracted a secondmarriage with the fixed intention of terminating the existing marriage,and thereby not rejoining the plaintiff in the common matrimonial home.
APPLICATION for leave to appeal from an order of the District Court of Colombo,with leave being granted.
Cases referred to :
Ramalingam vs Ramalingam et al – 35 NLR 174
R vs Pin Hamy – 51 NLR 169
l/s Gajaweera (Wimalachandra, J.)
Faizer Musthapha with Sahjeewa Kaluarachchi for plaintiff petitioners.
Diishan Jayasooriya with Chanke Manawadu for defendant respondent.
This is an appeal from the order of the Additional District Judge ofColombo dated 06.05.2003. Leave to Appeal was granted by this Courtby Order dated 25.11.2003.
Briefly, the facts as set out in the petition are as follows:
The plaintiff – appelleant (Appellant) instituted an action in the DistrictCourt of Colombo against the defendant – respondent (respondent) Interaliajor a divorce on the grounds of malicious desertion of the respondent,for the physical and legal custody of the child by the said marriage andpermanent alimony of Rs. 500,000/- for the appellant, and for themaintenance of the child. The respondent filed his answer on 18.01.2001praying inter alia for the dismissal of the plaintiff’s action, fora divorce onthe grounds of malicious desertion of the appellant and for the physicaland legal custody of the child from the said marriage.
The trial commenced on 04. 07. 2001 by recording admissions andissues. The plaintiff gave evidence on 27. 08. 2002 and his evidence wasconcluded on the same day. The respondent commenced giving evidenceon 27. 08.2002 and further trial was postponed for 26. 03. 2003. On thatday the learned counsel for the appellant submitted to Court that theappellant possessed evidence to the effect that the respodent had marriedanother woman in December 2002 and that he also possessed thenecessary documents in respect of the respondent’s second marriagewhile the present marriage is existing. Accordingly, the appellant soughtthe permission of Court to re-cross examine the respondent in terms ofsections 165 and 166 the Civil Provedure Code and under section 138(4)of the Evidence Ordinance.
The learned counsel for the respondent objected to this application forthe reason that the appellant had filed this action for divorce against therespondent on the ground of malicious desertion and not on adultery. The
106Sri Lanka Law Reports(2005) 1 Sri L. R.
learned Additional District Judge by order dated 06.05.2003 refused theapplication made on behalf of the appellant. The learned Judge refused theapplication for the reasons that the appellant had filed the action for divorceagainst the respindent only on the ground of malicious desertion and thatthe respondent contracted the second marriage after the filing of this actionand that the rights of the parties would be decided as at the date of institutionof the action.
Section 165 of the Civil Procedure Code permits the Court to use itsdiscretion and recall any witness, whose testimony has been taken, forfurther examination or cross examination, whenever in the course of thetrial if the Court thinks it necessary for the ends of justice to do so.
Section 166 states that, “the Court may for grave cause to be recordedby it at the time, permit a departure from the course of trial prescribed inthe foregoing rules.” The foregoing rules referred to in section 166 are therules contained in sections 146-165.
The Court is permitted to depart from the procedure laid down in sections151 to 165 for valid reasons only.
. The appellant instituted this action for divorce vinculo matrimonii againstrespondent the on the ground of malicious desertion and for custody of thechild. It is settled law that simple desertion is not sufficient to entitle aplaintiff to claim a divorce. The desertion must be malicious. A meredeparture from the matrimonial home is not sufficient. It must be establishedthat the spouse left matrimonial home with the intention of never returning.
It was held in the case of Ftamalingamvs. Ramaiingamm that the termmalicious desertion implies deliberate, wholly unreasonable, definite, andfinal repudiation of the marriage state.
The learned counsel for the appellant submitted that the appellant waspossessed with the evidence that the respondent had married anotherwoman only after the respondent had given evidence and as such theappellant wanted to re- cross – examine the respondent and lead evidenceto establish that he is married to another woman. The appellant had madethis application not to establish that the respondent is living in adultery,but to show that he had left the matrimonial home with the intention ofnever returning as he had now married another woman.
Us Gajaweera (Wimalachandra, J.)
Sections 165 and 166 stipulate the circumstances under which theCourt may allow to call further evidence or to re crossd examine a witnessto see that trials are fairly conducted and to ascertain the truth to arrive atthe correct decision.
If a party satisfies the Court that any evidence which is vital for thatparty to establish his case was not within his knowledge, at the time hisopponent was giving evidence or when that party was leading evidence,in my view it is a matter which falls within the ambit of sections 165 and166. Accordingly, in the instant case, it is my view that there are validreasons for the Court to exercise it's discretion to allow the appellant’sapplication to re – cross examine the respondent under sections 165 and166 purely for the purpose of eliciting the truth of the matter, in that whetherthe respondent left the matrimonial home with animus discerendi.
Similarly section 138 (d) permits the Court to recall a witness either forfurther examination in chief or further cross examination.
Usually the Court allows an application made under section 138 (d) ■*only if the party making the application gives satisfactory reasons. In thecase of R. Vs. Pinhamy(2) Basnayake, A. C. J. observed that, a partyasking for the recall of a witness must indicate to the judge why he wantsthe witness recalled, and satisfy the judge that it is necessary for the justdecision of the case.
In the instant case, the appellant wanted ro re-cross-examine therespondent to show that the respondent left the matrimonial home withthe fixed intention of terminating the marriage. At the time of making theapplication to re-cross-examine the respondent the appellant indicated toCourt that he possessed evidence which was not available to him at thetime the respondent was cross examined, to show that the respondenthad contracted a second marriage and thereby to establish maliciousdesertion which requires not only the factum of desertion but also therequired animus to repudiate the marital relationship with the appellant.Since the appellant had come to know that the respondent had contracteda second marriage only after the conclusion of the examination of therespondent, the applicaion made by the appellant to elicit the fact of therespondent’s second marriage is in any opionion necessary for the justdecision of the case. What is important is to find out the truth, and to do
8 – CM 5256
I OSSri Lanka Law Reports(2005) t Sri L. R.
justice according to law. In this action the question before the learnedjudge is to determine whether the respondent left the matrimonial homewith the fixed intention of terminating the marriage. That is, whether heleft the matrimonial home with the intention of not rejoining the plaintiff inthe commom household.
In these circumstances it .is my considered view that the learned DistrictJudge should have allowed the application made by the appellant tore-cross-examine the respondent to establish that he had contracted asecond marriage with the fixed intention of terminating the existing marriageand thereby not rejoining the plaintiff in the common matrimonial home.
For these reasons I would allow the appeal and set aside the ordermade by the learned Judge dated 06. 05. 2003. The learned DistrictJudge is directed to allow the appellant to re-cross-examine the respondentwith regard to the animus to repudiate the marriage to the appellant bycontracting a second marriage. In all the circumstances of this case Iorder no costs.
MURIN PERERA vs. GAJAWEERA