010-NLR-NLR-V-76-ALARAMALAMMAL-Applicant-and-S.-P.-NADARAJAH-Respondent.pdf
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FERNANDO, P.—Alarmalammal v. Nadarajah
[In the Court of Appeal of Sri Lanka]
Present: Fernando, PM Samerawickrame, J-, andSiva Supramaniam, J.ALARMALAMMAL, Applicant, and S. P. NADARAJAH,Respondent
C. A. Application No. 36 of 19728. G. 515167 (F)—D. C. Jaffna, 1074/D
Court of Appeal—Application for leave to appeal in a matrimonial suit—Scope—Action for declaration of nullity of marriage—Degree of satisfaction the Court hasto reach before granting decree.
The Supreme Court dismissed the appeal of the defendant-wife in a matri-monial suit in which her husband, the plaintiff, was granted a decree declaringthat the marriage was null and void on the ground that the defendantwas insane at the time of the marriage. The defendant applied for leave toappeal to the Court of Appeal on the ground that the plaintiff should haveproved his case beyond reasonable doubt and not on a balance of probabilities.
Held, that the application for leave to appeal should be refused. An actionfor divorce or for a declaration of nullity of marriage being a civil proceeding,the Civil Procedure Code read with the Evidence Ordinance indicates thedegree of satisfaction the Court has to reach before holding in favour of theplaintiff.
.Application for leave to appeal from a judgment of the SupremeCourt.
M. Tiruchelvam, with K. Thevarajah, G. £~hakradaran and EanilWickramasinghe, for the defendant-applicant.
G. Thiagalingam, with P. Somatilakam and Miss P. Sittampalam,for the plaintiff-respondent.
Cur. adv. vult.
October 27,1972. Fernando, P.—
This applicant for leave to appeal from a decree of the Supreme Courtdismissing her appeal to that Court is the unsuccessful defendant in amatrimonial suit in which her husband, the plaintiff, was granted by theDistrict Court a decree declaring their marriage null and void on theground that the defendant was insane at the time of the marriage.
The ground upon which we were invited to grant leave to appeal wasthat the trial judge, in deciding the question of the insanity ofthe defendant by applying as the standard of proof satisfaction on abalance of probabilities and not beyond a reasonable doubt, has erredon a question of law of general or public importance.
Tn this case the plaintiff was not seeking to establish the commissionof what may be described as a matrimonial offence. We are free topoint out however that, even if that had been the case, it is questionable,
H. N. G. FERNANDO, C.J.—Gunawardena v. Gunawardena
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having regard to the decision of the House of Lords in Blyth v. Blyth1<1966) 1 (A.E.R. 524) whether the local case of Jayasinghe v. Jayasinghe 2<1954) 55 N.L.R. 410) upon which learned counsel for the applicantheavily relied is any longer good law. That question can be decided,if the need arises, on some other more suitable occasion.
An action for divorce or for a declaration of nullity of marriage is acivil proceeding. Where, under the Civil Procedure Code, the plaintiffis entitled to a decree in case the Court is satisfied on the evidence, itwould seem that our Evidence Ordinance lays down the degree ofsatisfaction that has to be reached. It may therefore be unnecessaryto look for guidance from other jurisdictions.
For the reason shortly stated above, we refused leave to appeal, butwithout costs.
Application refused.