Bednarz v. Bednarz
SUPREME COURTFERNANDO, J.,
EDUSSURIYA, J. ANDWIGNESWARAN, JSC APPEAL NO. 21/2000CA LEAVE TO APPEAL NO. 07/99DC MT LAVINIA NO. 1458/96/DMAY 2, 2001 AND JUNE 14, 2001
Matrimonial action – Divorce – Counter claim for divorce on the ground of adulteryby plaintiff – Procedure – Section 598 read with section 603 of the Civil ProcedureCode.
The plaintiff sued her husband (the defendant) for a divorce on the ground ofconstructive malicious desertion. The defendant filed answer to the plaint andproceeded to plead under the heading “claim in reconvention" that the plaintiffhad committed adultery with one Geethaka Bandara and, it was necessary to makethe said Geethaka Bandara a co-respondent and also to amend the captionaccordingly; and prayed for (a) dismissal of the plaintiff's action (b) a divorce onthe ground of adultery by the plaintiff (c) damages in a sum of Rs. 5,000,000from the plaintiff in respect of mental distress caused to him and (d) damagesin a sum of Rs. 5,000,000 from the co-respondent.
On the same day as the answer was filed, the defendant by way of motion movedthe Court to add the said Geethaka Bandara as co-respondent and to issuesummons on him.
The plaintiff sought dismissal of the defendant's claim in limine for alleged failureto comply with section 75 (e) of the Civil Procedure Code relating to claims inreconvention. It was urged that in particular the defendant had failed to namethe co-respondent in the caption to the answer and hence he had not availedhimself of the provisions of section 603 of the Civil Procedure Code; and thatthe correct procedure was to have added the co-respondent under section 18of the Civil Procedure Code after due inquiry, viz after giving him an opportunityto be heard.
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Although the claim for damages against the plaintiff may perhaps be a“claim in reconvention", the claim against the alleged adulterer is a newclaim falling within the scope of section 598 read with section 603 of theCivil Procedure Code. The defendant had had in his pleadings set outhis cause for a divorce and the need to make Geethaka Bandara aco-respondent.
The defendant had sufficiently complied with the requirements of section598 and section 603 of the Code; and that in a claim for divorce on theground of adultery the alleged adulterer is not entitled to notice or hearingbefore he is made a party.
It is not open to the defendant filing answer to amend the caption givenin the plaint. Such amendment must be made by Court or with thepermission of Court; and in this instance this is precisely what the defendantsought when he said that it was necessary to make the said GeethakaBandara a co-respondent. He also moved Court on the same day to addGeethaka Bandara as a co-respondent and issue summons.
Case referred to:
Kamnatilleke v. Karunatilleke 52 NLR 3000, distinguished.
APPEAL from the judgment of the Court of Appeal.
S. C. B. Walgampaya with W. A. N. Jayanath and S. A. D. S. Suraweera for
Miss Maureen Seneviratne, PC with Hilton Seneviratne and Gamini Senanayake
Cur. adv. vult.
October 05, 2001EDUSSURIYA, J.
In this case, the plaintiff-respondent, sued the defendant-appellant 1for a divorce on the ground of constructive malicious desertion.
Bednarz v. Bednarz (Edussuriya, J.)
The defendant-appellant filed answer Replying the various aver-ments in the plaint and proceeded to plead under the heading "claimin reconvention" that the plaintiff-respondent had committed adulterywith one Geethaka Bandara and that “it has become necessary tomake the said Geethaka Bandara a co-respondent and also amendthe caption accordingly", and prayed for (a) a dismissal of the plaintiff'saction; (b) a divorce on the ground of adultery by the plaintiff; (c)damages in a sum of Rs. 5,000,000 from the plaintiff in respect of 10mental distress caused to him; and (d) damages in a sum ofRs. 5,000,000 from the co-respondent.
On the same day answer was filed, the defendant-appellant byway of a motion moved the Court to add the said Geethaka Bandaraas co-respondent and to issue summons on him. The plaintiff-respondent filed replication and amongst other things pleaded thatthe claim in reconvention should be dismissed in limine as the defendanthad failed to comply with the mandatory requirements of section75 (e) of the Civil Procedure Code relating to claims in reconvention.
At the hearing of this appeal it was urged that the defendant was, 20in fact, counter suing for divorce on the ground of the plaintiff's adulteryand seeking relief as provided for in section 603 of the Civil ProcedureCode although such averments had been pleaded under the heading"claim in reconvention".
It was contended by learned President’s Counsel for the respondentthat the defendant-appellant had not availed himself of the provisionsof section 603 but had clearly made a claim in reconvention undersection 75 (e) inasmuch as he had pleaded that (1) he was makinga claim in reconvention (2) he had not named the person with whomthe plaintiff is alleged to have committed adultery a co-respondent 30in the caption to the answer and (3) he had not prayed in the answerthat the person with whom the plaintiff is alleged to have committedadultery be named as a co-respondent and as such, the person withwhom the plaintiff is alleged to have committed adultery must be added
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under the provisions of section 18 of the Civil Procedure Code afterdue inquiry and such person be given an opportunity to be heard.
Counsel for the plaintiff-respondent also urged that where a defendantin a divorce case counter sues for a divorce it cannot be a claimreconvention. To support the contention that where a defendant ina divorce action seeks a divorce on the ground of adultery it should 40be done under the provisions of sections 597 and 598 read with section603 of the Civil Procedure Code and that it cannot be done by wayof a claim in reconvention, learned President's Counsel for the plaintiff-respondent referred the Court to the decision in Karunatilleke v.Karunatilleke where Basnayake, J. (as he then was) stated in thecourse of his judgment that : "The principle of reconventional claimsis well-known to Roman Dutch Law and is discussed by Voet at length,and has no application to a case where a defendant husband to anaction for dissolution of marriage asks for a decree for divorce in hisfavour. Such claim can be made by a defendant husband only by sovirtue of section 603 of the Code".
In Karunatilleke v. Karunatilleke (supra) the defendant husbandwhilst suing the plaintiff wife for a divorce on the ground of adulterywith X had also stated in his answer that the plaintiff wife had alsocommitted adultery with three other persons prior to that, and thequestion for decision was whether the other three persons againstwhom judgment had not been asked for should have been madeparties, and it was held that the law does not permit a party to obtaina decree for divorce on the ground of his wife's adultery with anyperson whom he does not bring in as a party to the action except 60in the circumstances stated in section 598 of the Code. It was heldthat the defendant had not made the adultery of his wife with theother three persons the cause of action, a part of the cause of actionand was under no obligation to make them parties.
In this case the defendant-appellant has in his answer pleadedthat the plaintiff had committed adultery with one Geethaka Bandara
Bednarz v. Bednarz (Edussuriya, J.)
and has also pleaded that it has become necessary to "make" thesaid Geethaka Bandara a co-respondent and also amend the caption.
It is not open to a defendant filing answer to amend the captionthat is given in the plaint. Any amendments must be made by Court 70or with permission of Court and in this instance this is precisely whatthe defendant has sought to do by his averments in paragraph 23of the answer, even though the defendant has not sought an orderof Court to that end in the prayer. Then it must also be noted thathaving pleaded that it was necessary to make the said GeethakaBandara a co-respondent and having also pleaded that the captionshould necessarily be amended, the defendant has prayed for dam-ages against the said Geethaka Bandara. In addition, it must alsobe borne in mind that along with the answer the defendant had movedCourt on the same day to add the said Geethaka Bandara as a soco-respondent and issue summons. So that even though the defendanthad in his answer referred to it as a claim in reconvention, in facthe was counter suing for a divorce as provided for by section 603of the Civil Procedure Code and it is my view that the defendant hadsufficiently complied with the requirements of sections 598 and 603of the Civil Procedure Code. Besides, if we were to, in these circum-stances, hold that an inquiry must be held giving the said GeethakaBandara an opportunity to be heard before he is named aco-respondent, merely because the answer contained the description"claim in reconvention" we would be creating a new procedure whereby sothe defendant's claim for relief under the provisions of section 603will be virtually heard before the plaintiff's claim and that too priorto commencement of the trial. It seems to me that while the counterclaim against the plaintiff may perhaps be a "claim in reconvention",it is not a claim in reconvention against the alleged adulterer buta new claim falling within the scope of section 598 read withsection 603.
As stated above the facts averred and pleaded in the answer aresufficient to bring the answer within the scope of section 603 of theCode although described as a claim in reconvention.100
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As to whether the alleged adulterer should be noticed and heardbefore he is made a party, it is very clear that when a plaintiff suesfor divorce on the ground of adultery the alleged adulterer is notentitled to notice or a hearing before he is made a party. When adefendant in such an action alleges adultery against the plaintiff, tohold that the alleged adulterer must be noticed and heard would placethe parties on an unequal footing. Besides, such notice and hearingwould serve no purpose – the Court is not required to determinewhether the allegation of adultery is true, or credible, or plausible.The mere fact that there is such an allegation is sufficient: the Court 110must amend the caption, as requested by the defendant, and addthe alleged adulterer.
For the above-mentioned reasons, the judgment of the Courtof Appeal is set aside and the appeal allowed with costs fixedat Rs. 10,500.
FERNANDO, J. – I agree.
WIGNESWARAN, J. – I agree.
BEDNARZ v. BENARZ