Asokan nee Kandasamy v. Asokan
ASOKAN NEE KANDASAMY
COURT OF APPEAL.
PALAKINDNAR, J. (P/CA)&
DR. ANANDA GRERO, J.
A. REVISION APPLICATION NO. 495/95
C. COLOMBO NO. 15715/DNOVEMBER 30TH. 1993.
Divorce – Jurisdiction – Marriage contracted abroad – Defendant (husband)resident abroad.
The marriage of the plaintiff (Maheswari Asokan nee Kandasamy) anddefendant (Krishnan Asokan) took place in India. The parties lived in India but thethe plaintiff wife had to quit the matrimonial home owing to the matrimonial fault(constructive malicious desertion) of the defendant husband. A divorce suit wasfiled in the District Court of Colombo where the plaintiff wife now lives.
the plaintiff wile is entitled to present a plaint in the District Court of Colomboas she resides within the jurisdiction of this Court in terms of section 597 ofthe Civil Procedure Code.
Malicious desertion (constructive) is a valid ground for dissolution ofmarriage according to the law applicable in Sri Lanka as set out in Section91 of the Marriages (General) Ordinance. Jurisdiction is not affected by thefact that the malicious desertion took place in India and the fact that thehusband is domiciled in India.
Section 19 of the Marriages (General) Ordinance read with section 24 of theJudicature Act and also with section 3 of the Judicature (Amendment) ActNo. 71 of 1981 reveals that divorce jurisdiction is exercisable by the DistrictCourt irrespective of where the marriage was contracted. The case of LbMesurier v. Le Mesurier (1 NLR 160) is not applicable as the law standstoday. The law applicable when the Le Mesurier case was decided was theRegistration (Marriages, Births & Deaths) Ordinance No. 6 of 1847 whichgave jurisdiction to the District Court only in respect of a marriage contractedlocally. Le Mesurier v. Le Mesurier 01 NLR 160 distinguished.
Sri Lanka Law Reports
 1 Sri L.R.
APPLICATION for revision from the order of the District Court of Colombo.
R. K. W. Gunasekara for petitioner.
Respondent absent and unrepresented.
January 19th, 1994.
This is an application for Revision to set aside the judgment of thelearned Additional District Judge of Colombo dated 4.5.93, wherebythe plaint of Plaintiff-petitioner was dismissed on the ground that theDistrict Court has no jurisdiction to hear and determine the action fordivorce.
The plaintiff-petitioner, instituted an action for divorce against herhusband in the District Court of Colombo on the ground of maliciousdesertion (constructive) and also claimed the custody of the twochildren born as result of the marriage.
The marriage in question took place in India, and parties lived inMadras till such time the petitioner had to quit the matrimonial homeowing to matrimonial fault of the husband.
She came to her parental home in Colombo in the year 1990 withher two children.
Thereafter she instituted the aforesaid action and summons hadbeen served on the defendant through a solicitor residing in Madrasand also through the Ministry of Justice via Sri Lanka Consular inMadras. The defendant did not appear at aii to defend the action.
The case proceeded to trial ex parte and the plaintiff-petitionergave evidence to establish her case. The learned Additional DistrictJudge reserved her judgment and on 4.3.93 she dismissed the actionof the plaintiff-petitioner.
Asokan nee Kandasamy v, Asokan (Ananda Grero, J)
It appears that the learned Additional District Judge dismissed theaction on the following grounds:
That the constructive malicious desertion took place in Madras,and the cause of action did not arise in Sri Lanka.
The matrimonial home was outside Sri Lanka.
That Section 597 of the Civil Procedure Code is not applicable,as the marriage was contracted in Madras.
The Court has no jurisdiction in the case of marriage contractedoutside Sri Lanka.
It is the Court of the husband's domicile that has the jurisdictionto grant a divorce.
Plaintiff-petitioner has failed to prove that she is not subject tothe law applicable to her husband.
At the time she instituted this action she was a resident ofColombo, in Sri Lanka. Section 597 of the Civil Procedure Codestates as follows:
"Any husband or wife may present a plaint to District Courtwithin the local limits of the jurisdiction of which he or she, asthe case may be resides, praying that his or her marriage bedissolved on any ground for which marriage may, by the lawapplicable in Sri Lanka to his or her case, be dissolved”.
In terms of the above stated section, the plaintiff-petitioner whoresides in Colombo is entitled to present a plaint to the District Courtof Colombo. The ground upon which she prayed for divorce wasmalicious desertion (constructive) which is a valid ground accordingto the law applicable in Sri Lanka to dissolve the marriage inquestion. Nowhere in the said section is it stated, that only a marriage
Sri Lanka Law Reports
(1994) 1 Sri L.R.
contracted within Sri Lanka can be dissolved, by filing a plaint ascontemplated in that section. In other words this section does notpreclude a marriage contracted outside Sri Lanka to be dissolved or^any ground, by law applicable in Sri Lanka under Section 19 of theMarriage (General) Ordinance. An analysis of the said section revealsthat no restriction is imposed to the effect that only adultery ormalicious desertion, or incurable impotency at the time of marriageshould be a ground that took place in Sri Lanka in order that a partybe entitled to get a divorce on one of such grounds. If a partysucceeds in establishing one of such grounds, then he or she isentitled to get a divorce from Court.
Section 19 of the Marriage (General) Ordinance read with Section24 of Judicature Act, and also with Section 3 of the Judicature(Amendment) Act No. 71 of 1981 reveals that divorce jurisdiction isexercisable by the District Court irrespective of where the marriagewas contracted.
Section 597 of the Civil Procedure Code does not prohibit a courtfrom entertaining a plaint where malicious desertion took placeoutside Sri Lanka. This section read with section 19 of the Marriages(General) Ordinance does not preclude a competent District Court toentertain a plaint where it appears from the plaint that the partyresides within its local jurisdiction and alleges a ground for divorce ascontemplated in Section 19 of the Marriages (General) Ordinance.
The learned Additional District Judge was of the opinion that awife’s domicile is, that of the husband, and it is a court of thehusband’s domicile that has jurisdiction to grant a divorce. She wasattracted by the decision of Le Mesurier v. Le Mesurierm
As rightly submitted by the learned Counsel for the plaintiff-petitioner in his written submissions, the matrimonial law hasundergone several changes since the decision of the aforesaid case.As contended by the learned Counsel for the plaintiff-petitioner the
Asokan nee Kandasamy v. Asokan (Ananda Grero, J)
Supreme Court in the above stated case held that the District Courtof Matara had no jurisdiction notwithstanding Chapter 42 of the Civil•Procedure Code, because the law, Registration (Marriages, Birth &Deaths) Ordinance No. 6 of 1847 gave divorce jurisdiction to theDistrict Court only to a marriage contracted locally. But it is not soas the law stands today. In the result the decision of the Le Mesuriercase has no application to the marriage contracted by the plaintiff-petitioner in the present case.
The learned Judge has gone on the basis that the law applicableis the law applicable to her husband. We are of the view, consideringthe present matrimonial laws prevailing in Sri Lanka (after thedecision of Le Mesurier's case and a few other cases cited by thelearned Judge) and the written submissions of the learned Counselthat the view held by the learned Judge is incorrect.
If the petitioner is able to prove the provisions of section 597 – ofthe Civil Procedure Code and section 19 of the General (Marriages)Ordinance, and also comes within the provisions of section 24 of theJudicature Act, then she is entitled to get a divorce from the DistrictCourt of Colombo.
We are of the view that for the aforesaid reasons, we cannot allowthe judgment of the learned Additional District Judge to stand. In thecircumstances, we set aside the judgment and direct the learnedJudge to enter a decree on the ground of constructive maliciousdesertion and grant other reliefs claimed by the plaintiff-petitioner,and thereafter to act according to the provisions of the CivilProcedure Code dealing with matrimonial actions.
We order no costs.
K. PALAKIDNAR J. -1 agree.
Case remitted to District Court to enter decree of divorce and otherrelief according to law.
ASOKAN NEE KANDASAMY v. ASOKAN