-BALASINGHAM v. KALAIVANAY

002-SLLR-SLLR-1985-V2-BALASINGHAM-v.-KALAIVANAY.pdf


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Sri Lanka Law Repons
[1985] 2 Sri LR.
BALASINGHAM
v.
KALAIVANAY
COURT OF APPEAL
G. P. S. DE SILVA, J. AND BANDARANAYAKE. J.C. A. 62/80 – M. C. KALMUNAI 58228.
MARCH 22, 1985.
Maintenance Ordinance s. 2 and s.5 – 'Living in adultery.'
Under section 6 of the Maintenance Ordinance the Magistrate is obliged to cancel theorder for maintenance made in favour of a wife under section 2, on proof that she isliving in adultery. The relevant point of time at which the wife should be proved to beliving in adultery is the-time of the application under section 5 of the Maintenance
CA
Balasingham v. Kalaivanay (G. P. $■ De Siiva, J)
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Cases referred to:
Abeysekera v. Biso Menika (1961) 64 NLR 260.
Thanikchalam Pillai v. Dhakshavani Ammal (1966) Cr. Law Journal 221.
Rammalhamy v. Appuhamy (1916)3 CWR 326.
De Silva v. Fernando (1930) 32 NLR 71.
Wijeysinghe v. Josi Nona (1936) 38 NLR 375.
Pushpawathy v. Santhirasegarampillai (1971) 75 NLR 353.
APPEAL from the Magistrate's Court of Kalmunai.
S. Sinnathambylor defendant-appellant.
Applicant-respondent absent and unrepresented.
Cur. adv. vult.
June 10, 1985.
P. S. DE SILVA, J.
The short point which arises for decision in this appeal relates tosection 5 of the Maintenance Ordinance (Chap. 91). The material partof the section reads thus –
'On proof that any wife in whose favour an order has been made
under section 2 is living in adulterythe Magistrate shall
cancel the order".
The question before us is whether it is sufficient if the wife was "livingin adultery” at any point of time after an order in her favour was madeunder section 2 or whether it is necessary that she should be living inadultery at the time the application' for cancellation of the order formaintenance is made under section 5. The Magistrate in a wellconsidered order held that there must be proof that the wife 'is livingin adultery" at the time the. application for cancellation of the order ismade. The defendant (husband) has now appealed against that order.
The facts of the case are not in dispute. An order for maintenance infavour of the applicant (wife) was made by the Magistrate on27,2.75. There was an appeal against the order which was affirmedby the Supreme Court on 24.3.77. On 9.9.77 the.defendant made anapplication under section 5 to have the order for maintenancecancelled on the ground that his wife had on 29xh May 1975purported to contract a 'marriage” (bigamous) with oneSathanandarajah and had lived with him (Sathanandarajah) for a,period of about one month from 29th May 1975. Mr. Sinnathamby, ’*
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! 1985] 2 Sri L R
Counsel for the defendant-appellant submitted that the evidenceclearly showed that the applicant-respondent had lived 'in adultery'within the meaning of section 5 for at least a continuous period of onemonth after an order for maintenance m her favour was made. I agreewith Mr. Sinnathamby that there is evidence to establish that theapplicant was living "in adultery" for a continuous period of at least onemonth from 29th May 1975. However, it is equally clear that there isno evidence to indicate that she was "living in adultery" at the time theapplication for cancellation of the order for maintenance was made mSeptember, 1977.
Mr. Sinnathamby contended that proof of "living in adultery" at thetime of the application for cancellation under section 5 is notnecessary as long as there is evidence of "living tn adultery" at anypoint of time after an order for maintenance in favour of the applicanthad been made. In support of this proposition. Counsel cited the caseof Abeysekera'v. Biso Menika (1). In that case L. B. de Silva, J heldthat "a Magistrate is entitled under section 5 or 10 of the MaintenanceOrdinance to cancel the maintenance order in favour of theapplicant-respondent with retrospective effect to cover the periodduring which she was admittedly living in adultery". The question thatarises in the instant appeal was not considered by de Silva. J.
Mr. Sinnathamby next cited the case of Thantkchaiam Pillai v.Dhakshavani Ammal (2). Here the Court considered the meaning ofthe expression "living in adultery" and did not address its mind to thematter in issue before us. Mr. Sinnathamby also referred us to thesection 488 (5) of the Indian Criminal Procedure Code which isidentical with section 5 of our Maintenance Ordinance. There appearsthe following statement in Sohanfs Commentary on the Code ofCriminal Procedure of India (1967 Edn.- Vol. IV, page 3076) "AMagistrate rejected the application of the husband for cancellation ofthe order of maintenance on the ground that it was not proved that thepetitioner's wife was at the time living in. adultery although she mighthave committed adultery seven months before. It was held thatadultery committed by a wife subsequent to an order obtained by herfor maintenance disentitles her to claim continuous maintenance and-entitles the husband to apply for cancellation of the order if it amountsto living in adgltery". The authorities cited in support of the above view(Queen-Empress v. Basappa, Ratanlal 3533 – Sohani v Manoharf 1882 A. W N. 168) are not available to me for perusal.
CABalasingham v. Kalaivanay (G. P. S. Da Sitva, J)11
On the other hand, there are several decisions under our law whichhave a bearing on this point. Shaw, J. in Rammalhamy v. Appuhamy
expressed the view –
'An order made under this section can be cancelled under section6 as from a subsequent date if it is then shown that the wife is thenliving in adultery, and even the fact that at sometime subsequent tothe order she was living in adultery does not entitle the husband to acancellation of the order if she has ceased to do so and is living anhonourable life at the time of the application’’. (The emphasis ismine)
This case was cited with approval by Jayawardena. A. J. in De Silva v.Fernando (4). Thereafter in 1936 this question directly arose forconsideration by Abrahams, C. J. in Wijeysinghe v. Josi Nona (5),wherein the learned Judge expressed himself thus-
'the issue was whether in terms of section 6 of the
Maintenance Ordinance the wife was living in adultery. The words ofthe section are plain. 'On proof that any wife in whose favour an
order has been madeis living in adulterythe
Magistrate shall cancel the order'. The.meaning is equally plain : thewife at the time that the application for cancellation of the order wasmade must be cohabiting with some other man or living a life ofpromiscuous immorality. Manifestly all that the appellant in this casewould have proved if the case had been heard out. was that thechild was not his. and inferentially that his wife had about a yearprevious to his application committed adultery with some man. Hecould not have proved thereby more than a single act of adultery,and if he could have done, he could not have proved that the
adultery was going on at the date of hid applicationThis
case does not seem to me really to need any authority, for thewords are too plain to require interpretation". (The emphasis ismine)
It is right to add that the above dicta of Abrahams, C. J. were citedwith approval in 1971 by De Kretser, J. in Pushpawathy v.Santhirasegarampillai (6).
No decision of our courts which takes the view contended for by Mr.Sinnathamby was cited before us. On a consideration of the plainmeaning of the words in the section and the trend of the authorities, Iam of the opinion that when the section speaks of the wife 'living in
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Sn Lanka Law Reports
(1985] 2 Sri L.R.
adultery' the relevant point of time is the time of the application undersection 5 of the Maintenance Ordinance (Chap. 91). As stated earlier,there is no evidence of continuous adulterous conduct on the part ofthe applicant at the time of the application. Jn the result, the order ofthe Magistrate is affirmed and the appeal is dismissed. In all thecircumstances. I make no order as to costs.
BANDARANAYAKE. J. – I agree
Appeal dismissed.