Where the District Judge refused to exercise his discretion under theproviso to section 602 of the Civil Procedure Code in favour of a guiltyplaintiff in a matrimonial action, the Supreme Court in appeal will notinterfere unless it feels that that discretion has not been properlyexercised.
^^PPEAL from an order of the District Judge of Ratnapura.
N.E. Weerasooria, K.C. (with him S. W. Jayasuriya), for plaintiff,appellant.
U.A. Jayasundera (with him P. Malalgoda), for defendant, respondent.
Cur. adv. wilt.
June 6, 1941. Moseley J.—
This is an appeal from the judgpnent of the District Court, Ratnapura,refusing to grant a divorce. The parties were married in 1923, and lived
* 33 N. L. R. 313.
(1916) C. P. D. 263, at p. 266.
MOSELEY J.—Abraham v. Alwis.
together until 1928, when the respondent, the wife, left the appellant andwent to live with her parents. The learned District Judge was satisfied onthe evidence before him that respondent maliciously deserted appellant.The latter, however, admitted adultery with a woman, Caroline" Fonseka,in the year 1933 and indeed in 1937 swore an affidavit to the effect,inter alia, that he and she were then living together as husband and wife.The District Judge then asked himself the question whether he shouldexercise in favour of the appellant the discretion vested in him by section602 of the Civil Procedure Code. The relevant portion of this section isas follows : —
•“ Provided that the Court shall not be bound to pronounce suchdecree if it finds that the plaintiff has, during the marriage, been guiltyof adultery, or if the plaintiff has, in the opinion of the Court, beenguilty of unreasonable delay in presenting or prosecuting the plaint
It should be noted here that the wording of this proviso follows closely,if not verbatim, that of section 31 of the Matrimonial Causes Act, 1857,which was reproduced in section 178 (3) of the Judicature (Consolidation)Act, 1925.
It is necessary here to refer briefly to the incidents which followed thedesertion of the appellant by the respondent in 1928. For five years theappellant appears to have been innocent of moral lapse. In 1933 he metand became intimate with Caroline Fonseka. This intimacy hascontinued up to the date of the plaint. In 1937 he appears to haveformed a desire to marry Caroline Fonseka and, in order to avoid, as besthe could, the penal consequences of a possibly bigamous marriage, heswore the affidavit to which I have already referred in which he sworethat the whereabouts of the respondent had not been known to him fornine years and that he had not heard of her being alive within that time.He then went through a form of marriage with Caroline Fonseka. Therewas evidence that the appellant had taken some steps to ascertain thewhereabouts of respondent, but the learned District Judge was of opinionthat these wgre of a perfunctory nature. The appellant would appear tohave omitted to follow the most obvious channel of inquiry, viz., throughthe respondent’s father whose whereabouts as a police pensioner musthave been' easily ascertainable. The District Judge held that the. appellant had committed adultery with a married woman, “knowing orhaving every reason to believe that his wife was alive ”. This may beputting the position somewhat strongly against the appellant, blit thereis some force in the observation. It was held, further, that the appellantwhen he instituted the action did not disclose the facts of his adulteryand marriage with Caroline Fonseka. The learned District Judge sawno exceptional circumstances to justify the exercise of his discretion infavour of the appellant whose action therefore failed.
In arriving at this conclusion the District Judge considered the case ofSeneviratne v. Panishamy et al. which appears to have been the onlyauthority cited to him on this point. It was in fact the only decision of
' 29 N. L. R. 97.
MOSELEY J.—Abraham v. Alwis.
this Court which was brought to our notice. In that case, decided in1927, Garvin J, after considering the case of Hines v. Hines ', expressedhimself as follows : —
“ He who seeks to be released from the matrimonial tie must himselfbe free from matrimonial offence. This rule may only be relaxed inexceptional cases and where the relief prayed for may be grantedwithout prejudice to the interests of public morality.”
In Hines v. Hines (supra) McCardie J., after reading all the cases inwhich the discretion of the Court had been exercised in favour of a guiltypetitioner, held that he could not create new principles of divorce lawadministration, though he recognized that the Court had undoubtedlyincreased its willingness to grant relief in such cases. Nevertheless heappears to have felt himself bound by the limitations existing at thedate of his judgment, that is to say, that the practice of the Courtprecluded the exercise of its discretion in favour of a guilty petitionerexcept in exceptional circumstances.
Although Seneviratne v. Panishamy et al. (supra) did not come beforethis Court until 1927, it does not appear that the Court had the advantageof considering Wilson v. Wilson In that case Sir Henry Duke, President,indicated that the attitude of the Courts had relaxed still more but thediscretion he said was “ not to be exercised eagerly or indeed readilybut with some degree of stringency ”. In exercising his discretion in thatcase he took into consideration the following circumstances : —
the position of the children to whose interest it was that they should
have a home with the sanctions of decency and so far as may be,
.of the law;1
the position of the v/oman with whom the petitioner was living for
it was clearly desirable in her interest that she should be lawfullymarried ;
the case of the respondent, as to whom there was no prospect that
refusal of relief would have the effect of reconciling her with thepetitioner ; and
the case of the petitioner in whose interest it was that he should be
able to marry and live respectably.
Since this decision it would seem that relief has not often been refusedwhere the petitioner has made a frank disclosure of his guilt. .That theremust be complete frankness was reiterated by Hill J. in Stuart v. Stuartand Holdens. A few months later came what has been termed the" classic ” case of Apted v. Apted and Bliss *. In this case all the autho-rities were reviewed as a result of which the learned president found thatthe following principles appeared : —
“ In every exercise of discretion the interest of the community atlarge in maintaining the sanctions of honest matrimony is a governingconsideration ; a strong affirmative case is necessary before a Judge isjustified under the statues in negativing their conditional prohibitions ;
(101S) L. R. Probale Div. 3G4.(1920) L. R. Probate Div. 20.
(1930) L. R. Probate Div. 77.
(1930) 40 T. L. It. 456.
MOSELEY J.—Abraham v. Alwis.
it is manifestly contrary to law that a judicial discretion in favour of alitigant guilty of misconduct in the matters in question should beexercised where that course will probably encourage immorality."
As a result of this decision a new rule of Court was instituted whichrequires a petitioner, who intends to ask that the discretion of the Courtshould be exercised in his behalf to include in his petition a prayer tothat effect and to set forth all the facts which require the discretion tobe exercised (46 T. L. R. 464). I would point out that at the presentmoment no such rule of Court has been promulgated in Ceylon.
It will be seen, then, that the attitude of the Judges of the ProbateDivision has undergone a considerable change since Hines v. Hines (supra)and Counsel for the appellant has contended that the present case is onein which, on the principles laid down in the English decisions, the appellantshould have relief.
It would seem from Wilkins v. Wilkins ’, that appeals from the DivorceDivision to the Court of Appeal are governed by the same rules as applyto appeals coming from the King’s Bench Division. I do not think thatwe should consider ourselves subject to any further limitation in thisrespect. It is open to us to interfere in a case such as the present one ifwe feel that the discretion vested in the Court of first, instance has notbeen properly exercised. It ,is inevitable that in cases where a discretion .'is allowed there will be anomalous decisions. That this would be so, inproportion as relaxation of the former more rigid rule increased, wasforetold by Lord Penzance in Morgan v. Morgan and Porter*. “Twominds ” he said “ will hardly ever form a judgment alike, and the samemind will often appear to others to form contradictory judgments onwhat seem to be similar facts. This Court, no doubt, will always becareful to, avoid interference with the properly used discretion of a trialJudge merely for the reason that it would have given a differentJudgment.”
In the present case, as I have already observed, the learned DistrictJudge has perhaps, in one or two instances, drawn conclusions unneces-sarily harsh towards the appellant. There was, for instance, norequirement, as is the case in England, that he should disclose in theplaint the fact of his adultery with Caroline Fonseka. Even so the factremains that there was considerable delay in bringing these proceedingsand the efforts made by the appellant to ascertain if his wife was livinghave been, in my view, rightly described as perfunctory. He would,in fact, seem to have studiously avoided the one certain means of doingso. I can see no reason for considering that the discretion of the DistrictJudge was improperly exercised. The appeal, as intimated at the conclu-sion of the argument, is dismissed with costs.
Keuneman J.—I agree.
Appeal dismissed.
1L. R. Probate Div. 108.
{1869) L. R. Probate Div. 644.