008-SLLR-SLLR-1999-V-1-ABEYSINGHE-v.-PERERA.pdf
78
Sri Lanka Law Reports
(1999] 1 Sri LR.
ABEYSINGHE
v.PERERA
COURT OF APPEAL
ISMAIL, J. (P/CA)
TILAKAWARDANE, J.
A. NO. 207/97
C. COLOMBO NO. 17702/D
DECEMBER 15, 1998
Divorce – Civil Procedure Code s. 614 (3) – Cost of litigation – Public Policy
and Public Interest – Quantum – Earning capacity.
Held:
The Judge has sole discretion to prescribe an amount that is deemedreasonable in all the alternate circumstances to defray the cost of litigationand in awarding same has also to consider whether the other spouse ispossessed of "sufficient means of income to pay the amount".
Husband's obligation to contribute towards his wife's matrimonial costs isbased on his duty to support.
Just as support for maintenance must be rendered on a scale commen-surate with the social position, life-style, and financial resources of theparties, similarly litigation costs must be ordered at a level commensuratewith the resources of the spouses.
LEAVE to appeal from the judgment of the District Court of Colombo.
Cases referred to:
Abeygoonesekera v. Abeygoonesekara – (1910) 12 NLR 95.
Chamani – 1979 (4) SA 804 (W).
Van Oudenhove de St. Sery v. Gruber – 1981 (3) E. CD.
Van Rippen – 1949 (4) SA 634.
W. Dayaratne for the petitioner.
Kalinga Indatissa for the respondent.
Cur. adv. vult.
Abeysinghe v. Perera (Shiranee Tilakawardane, J.)
79
CA
January 29, 1999.
SHIRANEE TILAKAWARDANE, J.
The plaintiff-respondent-pettioner has instituted this application forLeave to Appeal against the order of the District Judge dated21. 10. 97. In terms of the said order a sum of Rs. 45,000 has beenawarded as costs of the action to the defendant-petitioner-respondent.
During the pendency of a divorce action instituted by the plaintiff-respondent-petitioner, an application had been preferred in terms ofsection 614 (3) of the Civil Procedure Code, seeking a sum ofRs. 100,000 on account of costs.
This section empowers a District Judge to make an appropriateorder, in circumstances where one of the spouses is not possessedof sufficient income or means to defray the costs of litigation suchorder could be made at any stage of the litigation, and the spousewho is possessed of sufficient income or means to pay to the otherspouse such sum on account of costs as the court may considerreasonable. The Judge has therefore the sole discretion to prescribean amount that is deemed reasonable in all the attenuate circum-stances, to defray the cost of litigation and in awarding the same hasalso to consider whether the other spouse is possessed of "sufficientmeans or income" to pay the amount.
The fact that the defendant-petitioner-respondent had no incomeof her own was not disputed. At the subsequent inquiry the onlywitness to. give evidence was the defendant-petitioner-respondentherself, and she produced the documents P1, P2 and P3 in proofof her testimony. Other than to formally challenge her evidence, thecross-examination of her testimony was restricted to the credibility ofher testimony pertaining to the earned income of her estrangedspouse. Her testimony as regard the sum of Rs. 5,000 received asrental from a semi-luxury apartment in Homagama was not challengedeither directly or indirectly. The plaintiff-respondent-petitioner who waspresent at the inquiry admittedly chose not to place any evidenceeither by way of his testimony or the testimony of any otherwitnesses before the court.
80
Sri Lanka Law Reports
(1999] 1 Sri LR.
The order of the District Judge indicates that where a discrepancyin the earned income pertaining to salary has arisen, he has actedonly or the amount that was corroborated by the documentary evidenceplaced in court. The counsel in this application has submitted to thiscourt that he has no complaints as regard the emoluments receivedas salary. His grievance was that the sum of Rs. 5,000 as rental shouldnot have been considered by the Judge. However, in his carefullyevaluated order the Judge has explained his reason for the inclusionof this amount. He has adverted to the fact that this portion of theevidence was not challenged in any manner whatsoever. No questionswere put in cross-examination regarding the fact of the ownership ofthe premises or the rental received. The spouse who was presentin court did not either challenge it by his own testimony, nor by anyother oral or any other doucmentary evidence. The matter was noteven adverted to in the oral submissions at the end of the inquiry.
The District Judge has therefore gone on the basis that since therewas no challenge of the evidence regarding the rental, received, thiswas uncontradicted evidence and has thereore accepted and he hasacted on the testimony of the defendant-petitioner-respondentregarding the receipt of a rental of Rs. 5,000 per month. We seeno reason to interfere with this finding.
On a consideration of the reasonableness of the sum ofRs. 45,000/- it is important to analyze the rationale of such payment.
The payment of costs of an action was recognized to be a matterof public policy, the assumption being that it was clearly in the publicinterest, that the needy spouse had access to court (Abeygooneskerav. Abeygooneskerat'').
In 1979, Nestadt, J. in ChamanF* stated that there was no doubtthat a husband's obligation to contribute towards his wife's matrimonialcosts is based on his duty to support. This was subsequently confirmedin the case of Van Oudenhove de St. Sery v. Gruber<3).
The law as it stands today is that the purpose of this award ofcosts is for the wife, who has no income of her own to "be able to
CAAbeysinghe v. Perera (Shiranee Tilakawardane, J.)81
present her case adequately before the court"-Van RippenfAK Theaccepted rationale is that if a reasonable financial viability is notafforded to the spouse without an income, undue restrictions inpresenting his or her case may facilitate a divorce on unjustifiablegrounds.
In assessing the quantum of the award, the resources of therespondent spouse and the scale on which he or she is likely to litigateare relevant considerations. It is relevant in assessing the quantumthat, already, even before the trial has commenced, the case hasbeen taken up on 22 dates of court hearing. This does not includethe drafting and the filing of the papers. The connected applicationfor maintenance by the defendant-petitioner-respondent had resultedin an order, against which the plaintiff spouse had preferred an appealwhich was subsequently withdrawn. So the likelihood of long-drawnlitigation in this case is a probable likelihood.
Furthermore, just as support for maintenance must be renderedon a scale commensurate with the social position, lifestyle and financialresources of the parties, similarly, litigation costs must be ordered ata level commensurate with the resources of the spouses. The factof the total lack of any earning capacity of one spouse and the earnedincome of the other are both relevant and important considerationsfor the court.
In this context, as has already been set out in the earlier part ofthis judgment, a fair and considered determination has been madeby the District Judge in making a reasonable order for payment ina sum of Rs. 45,000/-. We see no basis whatsoever to interfere withthis order.
The leave to appeal is refused, with costs.
ISMAIL, J. (P/CA) – I agree.
Application refused.