Sanjeewa Jayawardene usHarshani Karunasinghe
COURT OF APPEALSOMAWANSA J (P/CA)
CALA : 338/2004DC PANADURA 2784/DMAY 25, 30, 2005
Civil Procedure Code – S- 614, 614 (1), 614 (3) – Application for AlimonyPendente lite – should an Inquiry be held ? – Is it different from costs of litigation?
The Plaintiff (husband) instituted action for divorce against the DefendantRespondent (wife). On the Summons returnable date Defendant appeared inCourt and filed proxy, on this day she was paid Rs. 1,500 as costs. After thepleadings were completed, the Defendant Respondent made an applicationin terms of Section 614 for alimony.- pendente – lite and for costs by way ofsummary procedure.
The Plaintiff raised a preliminary objection that as the defenant had alreadyobtained Rs. 1,500 as costs of suit she is not entitled to make a furtherapplication under Section 614 (3). The Court overruled the objection and setthe matter for inquiry. On Leave being sought:
Alimony pending action is different from costs of litigation. UnderSec: 614 (1) the wife may present a petition for alimony pendentelite.
Under Section 614 (3) where one of the spouses is not possessedof sufficient income or means to defray the cost of litigation the Courtmay at any stage of the action order the spouse who is possessedof sufficient income means to pay to the other spouse cost as theCourt thinks reasonable.
The payment of Rs. 1,500 is not an order made upon an applicationunder Section 614 – The court can make such order on the husbandfor payment to the wife alimony -pendente lite only after a properinquiry held under Section 614. Similarly court can order the plaintiffto defray the expenses of the proceedings to the wife after an inquiryupon an application under Section 614 (3).
Sri Lanka Law Reports
(2005) 2 Sri L. R.
Just because the court has merely ordered the Plaintiff to pay Rs.1500 as cost of litigation it cannot in law prevent the wife frommaking an application under Sec : 614 (1) and 614 (3). The costof litigation has to be decided after a due inquiry held according tolaw.
Application for Leave to Appeal from an order of the District Court ofPanadura.
Case referred to :
(1) Edirippuli vs. Wickremasinghe – 1995 2 Sri LR 22
Saliya Peiris with A Devendra for Plaintiff Respondent Petitioner
Ranjan Suwandaratne with Ms. Anusha Ratnayake for Defendant PetitionerRespondent.
Cur. Adv. Vult.
September, 15th 2005WIMALACHANDRA, J.
The plaintiff – respondent – petitioner (the plaintiff) filed this applicationfor leave to appeal from the order of the learned District Judge of Panaduradated 24.08.2004.
The plaintiff instituted the above action for divorce against the defendant- petitioner – respondent (defendnt) on the ground of constructive maliciousdesertion. On the summons returnable date the defendant appeared inCourt and filed the proxy. On that day she was paid Rs. 1,500 as costs,(j. E. No 2 date 2.6.2003). On 8. 9. 2003 the defendant filed her answerand prayed inter – alia for the dismissal of the plaintiffs action and alsoprayed for a divorce on the grounds of malicious desertion on the part ofthe plaintiff, and a sum of Rs. 100,000 as permanent alimony and thecustody of the two children.
Sanjeewa Jayawardene vsHarshani Karunasinghe (Wimalachandra, J. )
Thereafter the plaintiff sought to amend the plaint and the amendedplaint was filed and the defendant amended her answer and it was filedon 15.12.2003. The defendant thereafter made an application in terms ofsection 614 of the Civil Procedure Code for alimony pendente life and forcosts. This application was filed as provided for by section 614 and byway of summary procedure.
The plaintiff raised preliminary objection to the application made bythe defendant for alimony pendente lite, that as she had already obtainedRs. 1,500 as costs of suit from the plaintiff, she is not entitled to make afurther application under Section 614 (3) of the Code.
In any matrimonial action, whether instituted by the wife or the husband,the wife is entitled to make an application for alimony pending theaction. Alimony pending the action is different from costs of litigation.Under Section 614 (1) the wife may present a petition for alimonypending the action. Under Section 624 (3), where one of the spouses isnot possessed of sufficient income or means to defray the cost oflitigation, the Court may at any stage of the action order the spousewho is possessed of sufficient income or means to pay to the otherspouse costs as the Court thinks reasonable.
The plaintiffs complaint is that because the Court has ordered him topay Rs. 1,500 to the defendant on the summons returnable date, theCourt has no power to inquire into the application made by the defendantunder Section 614 of the Code. It appears from the journal entry dated'02.06.2003, that it is not an order made upon an application made underSection 614 of the Code. The Court can make such order on the busbandfor payment to the wife alimony pending the action only after a properinquiry held on an application made under section 614 of the Code.Similarly, the court can order the plaintiff to defray the expenses of theproceedings to the wife after an inquiry upon an application made underSection 614 (3) of the Code.
In the case of Edirippuli Vs. Wickramasinghe S. N. Silva, J. (as hethen was) made the following observations.
“We are of the view that an application made underSection 614 for alimony and costs is made in the courseof the action for divorce and pertains only to a matter of
Sri Lanka Law Reports
(2005) 2 Sri L. R.
procedure Only matters at issue in anapplication for alimony pendente lite are the needs forfinancial support on the part of the applicant spousethat stems from the lack of his or her income and theincome of the respondent spouse. This is made veryclear by the proviso to Section 614 (1) which states thatthe alimony ordered shall not be less than 1/5 of therespondent spouse’s average income for the 3 yearspreceding the date of the order. Similarly in anapplication for costs the only matters at issue in terms ofSection 614 (3) are insufficiency of income or means ofthe respondent spouse defray the costs of litigation andthe income or means of the respondent spouse”
Therefore it is only after a proper inquiry the Court can decide theamount of alimony pending action that has to be awarded to the wife,similarly, the Court can decide only after an inquiry whether the wife ispossessed of property and is in a position to find means to defend theaction or whether the husband is liable to pay his wife’s costs. In thecircumstances just because the Court has merely ordered the plaintiff topay Rs. 1,500 as costs of litigation to the defendant, it cannot in lawprevent the wife from making an application under Section 614 (1)and614 (3) of the Civil Procedure Code. Moreover, the said amount ofRs. 1500 was ordered without any inquiry and without taking intoconsideration the need for financial support on the part of the applicantspouse and the income and means of the applicant spouse to defray thecosts of litigation. The court cannot arbitrarily determine the cost of litigation.It has to be decided after a due inquiry held according.to law.
In the circumstances it seems to us that the learned District Judge iscorrect in deciding to hold an inquiry with regard to the application madeby the defendant in terms of Section 614 (1) and 614 (3) of the CivilProcedure Code.
For these reasons the leave to appeal application is dismissed withcosts fixed at Rs. 10,000.
SOMAWANSA, J. (P/CA). – 1 agree.
SANJEEWA JAYAWARDENE vs HARSHANI KARUNASINGHE