081-NLR-NLR-V-37-ASERAPPA-v.-ASERAPPA.pdf
372
Aserappa v. Aserappa.
1935
Present: Dalton S.P.J. and Maartensz J.ASERAPPA v. ASERAPPA.
8—D. C. Colombo, 52,518.
Divoice—Decree for alimony pendente lite—Period during which it is payable—Decree made absolute—Does not relate back—Application to makedecree absolute—Civil Procedure Code, ss. 605 and 614.
In an action for divorce, the liability to pay alimony pendente litecontinues until the decree is made absolute.
The decree absolute does not relate back to the date on which, accordingto the provisions of section 605 of the Civil Procedure Code, the decreeshould have been made absolute.
Per Dalton J.—The party who is interested should move the Courtto have the decree made absolute.
HIS was an action brought by the plaintiff against his wife the
first defendant for dissolution of his marriage on the ground ofher adultery with the scond defendant. During the pendency of theaction the plaintiff was directed to pay the first defendant Rs. 300 permensem as alimony. On March 19, 1934, the District Judge grantedthe plaintiff a decree nisi declaring the marriage to be dissolved, to bemade absolute in three months. The plaintiff continued the paymentof alimony for a period of three months after the decree nisi and thenstopped payment, whereupon the first defendant applied for writ torecover the alimony. The plaintiff opposed the application on theground that first defendant was living in adultery with the seconddefendant.
The learned District Judge held that the first defendant has beenliving in adultery with the second defendant and refused the firstdefendant’s application. He further made the decree absolute as fromJune 29, 1934.
E. F. N. Gratiaen, for first defendant, appellant.—The payment ofalimony pendente lite shall continue, under the provisions of section 614,until the actual date on which a decree nisi against the wife is made
DALTON S.P.J.—Aserappa v. Aserappa.
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absolute. The learned Judge has purported to give retrospectiveeffect to the decree absolute after it was entered. He had no jurisdictionto do so.
R. L. Pereira, K.C. (with him Choksy and D. W. Femado), for plaintiff,respondent.—A wife’s right to alimony pendente lite ceases when there is adecision against her in the Court of first instance on a charge of adultery(Wells v. Wells and Hudson'). It has also been proved that she is beingmaintained by the co-respondent, which circumstance also disentitles herto alimony from her husband (Madan v. Madan and de Thoren2; Holt v.Holt'). The English practice in matrimonial suits has always beenfollowed in Ceylon (vide Silva v. Silva').
In the present case me Court entered decree nisi against the wifeon March 19, 1934, to be made absolute at the expiration of three months,i.e., on June 19, 1934. Tne Court should automatically have madethe decree absolute on June 19 (De Silva v. De Silva et al. ‘), or at the lateston August 16, 1934, when the husband specifically applied that thedecree be made absolute.
Gratiaen, in reply.—The English practice does not apply when there isspecific provision to the contrary in the Code. The Court refused thehusband’s application of August 16, 1934, on the ground that an appealwas pending against the decree nisi. The husband did not appealagainst that order, and is therefore bound by }*■.
Cur. adv. vult.
December 12, 1935. Dalton S.P.J.—
This appeal arises out of an order made in an action for dissolutionof marriage. On July 21, 1933, a consent order for alimony pendente litewas made by the Court in favour of the first defendant, the plaintiffto pay the sum of Rs. 300 per month as from May 1, 1933. On March19, 1934, the plaintiff obtained a decree dissolving the marriage “ unlesssufficient cause be shown to the Court why this decree should not bemade absolute within three months from the making thereof ”. Fromthis judgment the defendants appealed. There seems to have beensome confusion over the date of the decree nisi. It is in fact, March 19.although in these proceedings it seems to have been treated as March 29.The plaintiff has paid alimony up to the end of June, 1934, i.e., forthree months after the date of the decree nisi.
On August 16 an application was made to the Court on behalf of theplaintiff that the decree be made absolute, but the Judge ordered thatthe application await the decision in appeal. The application wasrenewed on November 5, on the ground that notwithstanding the appealthe plaintiff was entitled to have the decree made absolute. On thesame date the first defendant in the divorce proceedings applied for awrit against the plaintiff for decovery of the sum of Rs. 1,200, beingalimony at the rate of Rs. 300 a month, for July, August, September,and October. Both applications were heard together on November 26and December 7. On the latter date the trial Judge allowed the plaintiff’s
» (1864) 3 Sw. and Tr. 542.3 (1868) L. B. I. P. and D. 610.
* (1867) 17 L. T. 326.'* 8 N. L. R. 280.
* 29 N. L. R. 378.
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DALTON S.P.J.—Aserappa v. Aserappa.
application, making the decree absolute, dating it back to June 29, 1934,and dismisssing the first defendant’s application. From that orderthe first defendant appeals.
The provisions of section 614 of the Code seem to me to be quite clear.Under that section alimony shall continue, in the case of a decree fordissolution of marriage as here, until the decree is made absolute. The-decree was made absolute on December 7, but the learned Judge hasdirected that it be entered as of date June 29. The reasons he givesfor makking the order date back to June are based upon what is saidto be the practice of the District Court.
According to the practice of that Court, he states that decrees absolute,in matrimonial cases I presume, are entered as a matter of course afterthe lapse of the prescribed period without the Court being moved theretoby either party. The practice, I understand, is based upon what arestated to be the explicit provisions in section 605 of the Code. If thatpractice had been followed therefore in this case, the Court would havemade the decree absolute immediately after the expiration of threemonths from the date of the decree nisi. It is clear that the practiceis not uniform, because it was not followed in this case. Even in Augustwhen the plaintiff’s application was dealt with, the failure to act inaccordance with this practice was not mentioned.
If there is any such practice in force, and my brother Maartenszinforms me that it was in force when he was District Judge, Colombo,
I am not satisfied that it is justified by any provision of the Code. Itseems to me that the person who requires the Court to move, shouldmove the Court, and not that the Court should act of its own motionin making the decree absolute. This is the English practice and I seenothing contrary to it in our Code. One can visualise a case, withoutany difficulty, in which the successful party might not wish to havethe decree made absolute immediately the time limit had expired.Cases are not unknown, for example, even if they are rare, of husbandsand wives coming together again after a decree nisi has been entered.In the case before us the plaintiff did apply, but not until August. Hecould have applied earlier, if he had wished, immediately the threemonths had expired, but he did not do so. Had he done so, in the absenceof any cause to the contrary being shown, the Court would as a matterof course have made the decree absolute. In August his applicationwas ordered to stand over, wrongly as was afterwards shown by counselwho appeared on his behalf; even then no practice of the Court actingof its own motion was mentioned or relied on. Section 625 prohibitsany further marriage of the parties after the decree dissolving a marriagehas been made absolute, until any pending appeal has been dismissed,so no risk or difficulty would arise from making a decree absolute on thatground. In my opinion, the learned Judge had no power to directthat the decree absolute made by him on December 7 should date asfrom June 29. The decree was made absolute on December 7, andtherefore, under the provisions of section 614, the alimony orderedto be paid continues to that date. For some purposes the decree absolutedates back to the date of the decree nisi, but it is not suggested it doesso in this case.
376
MAARTENSZ J.—Aserappa v. Aserappa.
In my opinion, no question arises in these proceedings, in the faceof the existing order of July 21, 1933, as to whether the first defendantwas or was not being maintained during the months of July, August,September, and October, by the second defendant.
The first defendant is therefore entitled to alimony under the ordermade in July, 1933, until the date of the decree absolute, that is, up toDecember 7. Her appeal must therefore be allowed and her applicationagainst the plaintiff must be granted. She is entitled to her costs of thisappeal and to the costs of her application in the Court below.
Maartensz J.—
The first defendant in this action was the wife of the plaintiff whomhe sued for dissolution of his marriage on the ground of her adulterywith the second defendant. During the pendency of the action theplaintiff was directed to pay the first defendant Rs. 300 per mensemas alimony pendente lite. On March 19, 1934, the District Judge grantedthe plaintiff a decree nisi declaring the marriage dissolved, to be madeabsolute at the expiration of three months. The plaintiff continuedthe payment of alimony for a period of three months after the decree nisiwas entered and then stopped payment, and the first defendant appliedfor issue of writ to recover the alimony due to her.
On August 16, 1934, the Court directed that an application to havethe decree made absolute should await decision in appeal. The firstdefendant renewed her application for writ which was opposed by theplaintiff who again moved to have the “ decree nisi ” made absolute.
The plaintiff supported his opposition to the application for writwith an affidavit from one K. John, who according to the affidavit hadbeen employed as a cook by the first and second defendants—to theeffect that the first and second defendants lived together in a housecalled “ Mohini ” from April, 1934, to November 8, 1934. The allegationsin this affidavit were not contested by the first defendant. She contendedthat the allegations even if true were not a ground on which the applicationfor writ could be refused in view of the provisions of section 605 of theCode.
The District Judge held that it had been proved that the first defendanthad been living in adultery with the second defendant since April, 1934,and on the authority of the English cases in which it was held thatalimony should cease when the wife was found guilty of adultery refusedthe first defendant’s application on December 7, 1934. In the sameorder he made the decree nisi absolute as from June 29, 1934. The firstdefendant appeals from this order.
I am of opinion that the English cases referred to by the District Judgeare not applicable. The period during which, alimony pendente litemust be paid is fixed by section 614 of the Civil Procedure Code whichprovides that alimony pending the action shall continue in case of a decreefor dissolution of marriage until the decree is made absolute.
The question then arises whether the liability to pay alimony pendenteiite continues until the decree is actually made absolute or only untilthe date on which the decree should have been absolute.
370
Hadjiar v. Kuddoos.
Section 605 of the Civil Procedure Code enacts that: “ Whenevera decree nisi has been made and no sufficient cause has been shown,why the same should not be made absolute as in the last precedingsection provided within the time therein limited, such decree nisi shallon the expiration of such time be made absolute
The respondent contended that the District Judge should have madethe decree absolute on the expiration of three months from March 29and that the District Judge was entitled to make the decree absoluteand effective from June 29, or at all events from August 16, 1934, whenthe plaintiff moved the Court to make the decree absolute.
I am unable to agree with either contention as there is no provisionin Chapter XLII. of the Code relating to matrimonial actions that adecree absolute whenever made should relate back to the date on whichaccording to the provisions of section 605 of the Code the decree shouldhave been made absolute.
I would accordingly allow the appeal with costs in both Courts.
Appeal allowed.