007-SLLR-SLLR-1998-1-ANULAWATHIE-v.-GUNAPALA-AND-ANOTHER.pdf
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Anulawathie v. Gunapala and Another
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ANULAWATHIE
v.GUNAPALA AND ANOTHER
COURT OF APPEALWIGNESWARAN, J.,WEERASURIYA, J.
A. No. 414/94{F)
C. 2325/D, KULIYAPmYAOCTOBER 23, 1997.
Divorce – Constructive malicious desertion – Review of findings by an Appellate
Court – Permanent alimony.
The plaintiff-appellant instituted action seeking dissolution of the marriage on the
ground of constructive malicious desertion, upon his adulterous association with
the 2nd defendant-respondent. The action was dismissed.
On Appeal-
Held:
It is manifest that the finding of the trial Judge that the plaintiff-appellanthad failed to prove constructive malicious desertion stems from thecontradictory positions adverted to by the plaintiff-appellant and her fatherwith regard to the specific period of her leaving the matrimonial home.
The learned District Judge had failed to consider other expulsivecircumstances which the plaintiff-appellant had placed before him whichculminated in the act of desertion.
Per Weerasuriya, J.
'It is to be observed that when a party seeks a divorce on the groundof constructive malicious desertion what is required to be proved is that,the innocent party was obliged to leave the matrimonial home as a directconsequence of the expulsive acts of the other party.'
Sole contention upon which alimony should be quantified is the financialstatus of the defendant.
APPEAL from the Judgment of the District Court of Kutiyapitiya.
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Sri Lanka Law Reports
(1998) 1 Sri L.R.
Cases referred to:
De Silva v. Seneviratne – 1981 2 SLR 7.
Wijeratne v. Wijeratne – 73 NLR 546.
Chula Bandara with D. K. Danapala for plaintiff-appellant.
W. Dayaratne with Nimal Jayasinghe for 1st defendant-respondent.
Cur. adv. vult.
December 01, 1997WEERASURIYA, J.
The plaintiff-appellant by plaint dated 17.09.1991 instituted actionagainst the 1st defendant-respondent seeking dissolution of the marriagecontracted with him on 07.09.1978 on the ground of constructivemalicious desertion upon his adulterous association with the 2nddefendant-respondent, for the custody of the children and permanentalimony. The defendant-respondents in their answers filed separatelydenied the allegations and prayed for the dismissal of the action. Thecase proceeded to trial on 14 issues and the District Judge by hisjudgment dated 20.05.1994 dismissed the action. This appeal hasbeen lodged against the aforesaid judgment.
The main ground urged by learned counsel for the plaintiff-appellantin this appeal was that the trial Judge had misdirected himself incoming to a finding that the allegation of constructive malicious desertionhas not been proved. He contended further that the trial Judge wasin error when he failed to adduce reasons for rejecting the evidenceof the plaintiff-appellant and accepting the evidence of Rattarana, herfather.
It is manifest that the finding of the trial Judge that the plaintiff-appellant had failed to prove constructive malicious desertion stemsfrom the contradictory positions adverted to by the plaintiff-appellantand her father Rattarana with regard to the specific period of her(plaintiff-appellant) leaving the matrimonial home. The plaintiff-appel-lant testified that she left the matrimonial home on 07.09.1991, whileher father stated that she came to reside in the ancestral home inJanuary 1992, having earlier said as 1991. The trial Judge in the face
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of this confusion had disbelieved the plaintiff-appellant on the questionof her leaving matrimonial home on 07.09.1991. Rattarana, a cultivatorin a remote village could have been confused on the precise dateon which his daughter returned home but the question that arises forconsideration is, how the trial Judge believed him in preference tothe plaintiff-appellant on this crucial matter. There is no justificationto reject the evidence of plaintiff-appellant in toto due to a singlecontradiction inter se with regard to the date of leaving the matrimonialhome. He had failed to consider other expulsive circumstances whichthe plaintiff-appellant had placed before him which culminated in theact of desertion.
The trial Judge had not appreciated the fact that all that was placedbefore him was the evidence led on behalf of the plaintiff-appellantto decide the issues and consequently failed to give due weightto the uncontroverted testimony of the plaintiff-appellant and herwitnesses. In the circumstances, there is force in the contention ofCounsel for the plaintiff-appellant, that the trial Judge had misdirectedhimself in coming to a finding that the plaintiff-appellant had failedto prove constructive malicious desertion.
In De Silva v. Seneviratnet1* it was held that where an appellateCourt is invited to review the findings of a trial Judge on questionsof fact the principles that should guide it should be as follows:
where the findings on questions of fact are based uponthe credibility of witnesses on the footing of the trial Judge'sperception of such evidence, then such findings are entitled togreat weight and the utmost consideration and will be reversedonly if it appears to the appellate Court that the trial Judge hasfailed to make full use of his advantage of seeing and listeningto the witnesses and the appellate Court is convinced by the 'plainest considerations that it would be justified in doing so;
that however, where the findings of fact are based uponthe trial Judge's evaluation of facts, the appellate Court is thenin as good a position as the trial Judge to evaluate such factsand no sanctity attaches to such findings of fact of a trial Judge;and
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(1998) 1 Sri LR.
where it appears to an appellate Court that on either ofthese grounds the findings of fact by a trial Judge should bereversed then the appellate Court “ought not to shrink from thattask".
Having examined the evidence, with great care, it seems to methat the plaintiff-appellant had placed sufficient material to come toa finding on constructive malicious desertion in favour of the plaintiff-appellant. It is to be observed that when a party seeks a divorce onthe ground of constructive malicious desertion what is required to beproved is that, the innocent party was obliged to leave the matrimonialhome as a direct consequence of the expulsive acts of the other party.
In the instant case, there was evidence that the plaintiff-appellanthad left the matrimonial home on 07.09.1991, due to the ill-treatmentand harassment at the hands of the 1st defendant-respondent con-sequent upon the assault of the 2nd defendant-respondent by theplaintiff-appellant for staying in the boutique with the 1st defendant-respondent. The uncontroverted testimony of the plaintiff-appellant hadbeen that since the incident of assault on the 2nd defendant-respond-ent, 1st defendant-respondent harassed her and ill-treated her andeven beaten her, making her difficult to continue to live in the matrimonialhome until she left the same in desperation to stay with her parents.It also transpired in evidence that the 1st defendant-respondent hadfailed to maintain the family during this period.
It is to be noted that Tikira who was employed by the 1 st defendant-respondent to attend to the work at the rice mill had testified thatthe 2nd defendant-respondent stayed in the boutique, did the cookingand even helped him in the work of the rice mill. The ground on whichthe plaintiff-appellant had relied for a divorce was on the basis ofconstructive malicious desertion, even though it was disclosed that2nd defendant-respondent had been living with the 1st defendant-respondent in the same boutique.
Learned trial Judge had ordered that the custody of the two childrenbe given to the plaintiff-appellant. Insofar as the question of alimonyis concerned in Wijeratne v. WijeratneP* it was held that sufficientground must be shown before the court can award as permanentalimony, a sum in excess of the amount claimed by the wife as alimonypendente lite and consequently the plaintiff's claim for a sum in excess
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of that awarded as alimony pendente lite was refused. Thus, it wouldappear that the sole criterion upon which alimony should be quantifiedis the financial status of the defendant. In the instant case, no evidencehad been led to establish the financial status of the 1st defendant-respondent. It was revealed that in case No. 3427 of the Magistrate'sCourt of Kuliyapitiya, the 1st defendant-respondent was ordered topay Rs. 500/- monthly for each child as maintenance which wouldremain in force in the absence of any order to the contrary in divorceproceedings. Besides it is well to remember that wide discretionarypowers have been conferred on the District Court which may if it thinksfit, upon pronouncing a decree of divorce order alimony for the benefitof either spouse. Having considered the fact that no evidence hadbeen placed in regard to the financial status of the 1st defendant-respondent and in the absence of an order for alimony pendente liteit would be inappropriate to make an order for permanent alimonyfor the benefit of the plaintiff-appellant.
For these reasons, I set aside the judgment of the learned DistrictJudge dated 20.05.1994 and enter judgment in favour of the plaintiff-appellant in terms of prayer 'A' and 'B‘ of the plaint with incurred costs.The plaintiff-appellant will also be entitled to costs of this appeal. EnterDecree Nisi accordingly.
WIGNESWARAN, J. – I agree.
Appeal allowed.