SOERTSZ J—Blok v. Blok.
1940Present: Soertsz and Heame JJ.
BLOK v. BLOK61 & 62—D. C. Colombo, 208.
Divorce—Allegation oj adultery against co-respondent unproved—Decreebased on adultery with unknown person—Suspicion against co-respon-dent—Costs.
Where in an action for divorce the only adultery put in issue is theadultery alleged between the two defendants, it is not open to the Judge,on finding that the allegation has not .been established, to base.his decreeon adultery with a person unknown without an allegation made to thateffect and an issue raised upon it.
Where the co-respondent’s conduct is such as to lead to a reasonablesuspicion that he had been guilty of adultery, the Court will refuse toallow him his costs.
^i^PPEAL from a judgment of the District Judge of Colombo. .
E. B. Wikremanayake (with.him A. H. C. He Silva), for first defendant-appellant in 61 and for first defendant-respondent in 62.
R. L. Pereira, K:C. (with him C. Thiagalingam and N. Nadarasa),for plaintiff-respondent in case No. 61 and for plaintiff-appellant incase No. 62.
. N. Nadarajah (with him A. S, Ponnambalam and Kandasamy), for seconddefendant, respondent.
Cur. adv. vult
October 4, 1940. Soertsz J.—
There are two appeals before us. In appeal No. 61 the first defendantappeals from the decree nisi entered by the District Judge dissolving themarriage between her and the plaintiff on the grounds (a) of maliciousdesertion; (b) of adultery. Counsel for the appellant did not seriouslycontest the correctness of the decree in so far as it is based on maliciousdesertion. In view of the evidence in the case, it would, in my opinion,have been futile for him to do that. But his complaint that once thelearned Judge found that the adultery alleged between the two defendantshad not been established, adultery ceased to be a ground upon which tobase the decree, seems to me to be well founded. That was the onlyadultery put in issue between the parties, and it was not open to theJudge to find adultery with an unknown man without an allegation madeto that effect and an issue raised upon it.
I would, therefore, vary the decree by deleting the words “ andadultery ” after the words “ malicious desertion ” in paragraph 2 of thedecree, but when I do that I must not be understood as dissenting inany manner at all from the learned Judge’s finding that the child AntonSamuel Blok is not a child of the plaintiff. It was necessary for thelearned Judge to pronounce upon that question in order to answer theissue “ who is entitled to the custody of the children, the plaintiff or thefirst defendant? ” Subject to the variation I have made the appeal isdismissed without costs.N
KEUNEMAN J.—Thilakavathypillai v. Sivapalam.
Appeal No. 62 is an appeal by the plaintiff praying for a reversal ofthe finding of the trial Judge that adultery between the defendants onthe dates alleged has not been established. This appeal too was notpressed, quite properly. On the evidence it is impossible to say thatadultery has been established. The most that can be said is that thereis a cloud of suspicion surrounding the relations between the twodefendants.
I would, therefore, dismiss this appeal too without costs.
In regard to the costs of the second defendant too I make no order forcosts in appeal, for, in my view, he has by his conduct brought the suit onhimself—see Robinson v. Robinson & Gamble
Hearne J.—I agree.
BLOK v. BLOK