( 100 )
Present:Lascelles C.J. and Middleton J-
APPUHAMY v. MENIKHAMY et al.
325—D. C. Ghilaw, 4,326.
Action for divorce on the ground of adultery of wife—Husband himselfguilty of adultery—Discretion of Court to dismiss action—Discre-tion as to costs—Civil Procedure Code, ss. Ml and 602.
Anaction bya husbandfordivorce onthe ground of adulteryof
his wife was dismissed as the husband himself was guilty of adultery.
Fora Courtto exerciseitsdiscretionunder section 602ofthe
CivilProcedureCode in favour of the'adulterous husband,itis
not enough that the adultery of the petitioner was more or lesspardonable or capable of excuse, but the Court must find, as afact,that themisconductof. the petitioner was causeddirectly
by the matrimonial offences of the respondent.
Section 211 of the Civil Procedure Code gives a discretionarypower to the Court with regard to costs in all actions, includingmatrimonial actions.
fJlHE facts appears in the judgment.
Sampayo, K.C., for appellant.
H. A. Jayewardene, for the first defendant, respondent.Tambimuttu, for the second defendant, respondent.
November 9, 1911. Lascelles C.J.—
This is an appeal from a judgment of the District Judge of Chilawdismissing the action. The claim was for a dissolution of marriageon account of the adultery of the wife. The ground on which theaction was dismissed was that the plaintiff himself had been provedto have been guilty of adultery. Now, the ground on which we areinvited to set aside the judgment of the District Judge is that thecircumstances of the present case are such that the Court ought tohave exercised its discretion under section 602 of the Civil Pro-cedure Code in favour of the adulterous husband. The rule which isapplicable in such cases is well settled by the English authorities.It is not enough that the adultery of the petitioner was more or lesspardonable or capable of excuse, but the Court must find, as a fact,,that the misconduct of the petitioner was caused directly by thematrimonial offences of the respondent before it will exercise itsdiscretion in favour of the petitioner. I am citing from the head-note in Wyke v. Wyke1, where all the authorities on the subject arecollected and discussed. Here it cannot for a moment be contendedthat the offence of the wife in any way conduced to the misconduct
> (1904) Probate 149.
( 101 )
of the plaintiff. The plaintiff turned his wife out’of doors for anapparently trivial reason within a few months of the marriage, and Labcklleswithin eight months or a year of the marriage he was the defendantin a maintenance case, which he settled on payment of Rs. 25. It is Appuhamy v.clear that it was the conduct of the plaintiff that conduced to the Menikhamymisconduct of the defendant, rather than the misconduct of thedefendant that conduced to that of the plaintiff. Following theprinciples that have been adopted in the English oases, I find noreason to interfere with the decision of the District Judge.
Next we come to the question of the costs, and it was said that weought to follow the English rule, that the respondent in all oasesought to pay the costs of the wife. It is true that the English rulehas been followed in the case of Abeyagoogesekera v. Abeyagoons-sekera,1 and also in Silva v. Silva,3 blit I think that there can beno doubt but that the Court, in matrimonial cases, has the samediscretion which it has in all other cases under chapter XXI. of theCivil Procedure Code; for this is a chapter of the Code applicablegenerally to all proceedings. Now, the order of the District Judgewas that each party should bear his own costs. He has not, as heought to have done, stated the grounds for his order, but I thinkthey are not far to seek. The conduct of the first defendant hasbeen such as to disentitle her to any indulgence. She obtained amaintenance order against her husband for the maintenance of thechild which (the Judge has found, and there is no appeal against hisfinding) was not the child of her husband but of the man withwhom she afterwards lived. She has also denied the adultery, andput the husband to the costs of proving it. In the circumstances,
I .think the order of the District Judge that each side should paytheir own costs is a fair and equitable one.
As regards the costs of the second respondent, I think he is to aconsiderable extent in the same position as the first respondent,and I do not think that he is entitled to any greater indulgence. Iwould not interfere with the order of the District Judge as regardsthe costs of the action. In the result the appeal is dismissedwith costs.
1 agree with all that has fallen from my Lord, and only wish toadd a few words to the effect that I think that section 211 of theCode applies and gives discretionary power to the Court with regardto costs in all actions in the Courts of Ceylon, including matrimonialactions, and the rules and practice in the English Courts which havebeen applied are no doubt very applicable in some cases, but theymust be applied, as some rules and principles are. according tothe discretion of the Court.
* (1905) 8 N. L. R. 280.
i (1909) 12 N. L. R. 95.
APPUHAMY v. MENIKHAMY et al