032-SLLR-SLLR-1990-V-1-BUDDHADASA-KALUARACHCHI-v.-NILAMANI-WIJEWICKRAMA-AND-ANOTHER.pdf
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Sri Lanka Law Repons
(1990) 1 Sri LR.
BUDDHADASA KALUARACHCHI
v.NILAMANI WIJEWICKRAMA AND ANOTHER
COURT OF APPEAL.
S. N. SILVA .J. AND H. W. SENANAYAKE .J.
C. A. 486/69 – D C. COLOMBO 11651/D.
OCTOBER 26, 1989.
Divorce- Decree nisi – Decree absolute – Custody ol child-Revision – Civil Procedure Codesections 604, 605, 615, 772(1) 758 (e) and (i) – Anicle 139 ol the Constitution.
The plaintiff-petitioner Buddadasa Kaluarachchi sued his wife Nilamani Wijewickrama the1 st defendant-respondent for a divorce on the ground of malicious desertion and custodyof the child Nilani. The 1 st defendant filed answer alleging constructive malicious desertionof her by the plaintiff and adultery with the 2nd defendent and prayed for a divorce. Shetoo prayed for the custody of the child. The District Judge delivered judgment on 12.05.88dismissing plaintiff’s action but on 1 st defendant's prayer he entered a decree nisi grantinga divorce on the ground of constructive malicious desertion only but rejected the groundof adultery and the claim for damages against the 2nd defendant. In terms of s. 615 of theCPC the plaintiff petitioner was directed to pay the 1 st defendant respondent a sum of Rs.1500/= as permanent alimony per month and maintenance for the child Nilani in a sum ofRs. 1000/= per month. Custody of the child was awarded to the 1st defendant.
The plaintiff appealed only against the order for alimony and custody of the child but notagainst the order granting a divorce on the prayer of the 1 st defendant. The 1 st defendantfiled no appeal. On 12.10.88 the plaintiff’s attorney filed an application to make decree nisiabsolute.
On 01. 11.88 the plaintiff's attorney filed a motion tor the case to be called for enteringdecree absolute. The matter was supported on 16. 11 88 and the 1 st defendant's attorneytook notice. On 20. 11. 88 in terms of the provisions of s. 772 (c) of the CPC the 1stdefendant prayed that issues on the question of adultery answered not proved be nowanswered in her favour and decree for divorce be granted on the ground of plaintiff'sadultery with the 2nd defendant. After hearing the parties the Court on 25 05 89 madeorder dismissing plaintiff-petitioner's application to make decree absolute The plaintiffpetitioner moved in revision.
Held:
In terms of section 605 of the Civil Procedure Code as there was no objection norsufficient cause shown why the decree nisi should not be made absolute there was a dutycast on court to make the decree nisi absolute at the expiry of the three months.
An application to make decree nisi absolute can be made by the innocent party or theguilty party – the question whether or not the marriage should be dissolved being no longerin issue. There is no residuary discretion vested in the court to decline it if any party movesto have the decree nisi made absolute.
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CAft Kaluarachchi v. N. Wijewickrama and Another
The Court can make subsidiary orders relating to permanent alimony, custody of thechildren and other settlements in terms of section 615 of the Civil Procedure Code. Theseorders as stated in section 615 (2) can be discharged,'modified, temporarily suspendedand revived or enhanced. These orders are not part of the decree nisi.
As there was no appeal from the decree for dissolution of the marriage the Court willnot grant any relief the parties have not asked for.
The Court of Appeal has the power to act in revision, even though the procedure by wayof appeal is available, in appropriate cases.
The action for divorce was filed so far back as 1982 and it had taken nearly 7 years forthe District Court to conclude the trial. An appeal from the judgment dated 25.05.89 withthe present backlog of cases in the appellate cases in the Appellate Court would beconsiderably delayed . Hence this is an apt case for the Appellate Court to excerize itsrevisionary powers.
Cases referred to:
Hulme King v. De Silva 29 NLR 63 PC.
Silva v. Silva 20 NLR 378.
Atukorale v. Samyanathan 41 NLR 165.
Rustom v. Hapangama & Co. [1978-79] 2 Sri LR225.
Sumanathangam v. Meeramohideen 60 NLR 394.
APPLICATION for revision of the order the District Judge ol Colombo.
H. L. de Silva , P. C. with Mahanama Silva for plaintiff -petitioner.
£ B. Wickramanayake with I. G. N. de Jacolyn Seneviratne for 1 st defendant-respondent.
Cur. adv. vult.
January 11, 1990
H. W. SENANAYAKE, J.
The plaintiff-petitioner filed this application for revision in respect of theorder dated 25.5.89 made by the learned District Judge in case No.11651/D in the District Court of Colombo. By the said order the learnedDistrict Judge refused the application of the plaint iff-petitionerto make the‘Decree Nisi’ granting the defendant-respondent a dissolution of marriageon the grounds of constructive malicious desertion on the part of theplaintiff-petitioner a decree absolute in terms of the provisions of section605 of the Civil Procedure Code.
The plaintiff institutedthis action againstthefirst defendant-respondentpraying inter-alia for-
a decree of dissolution of marriage a vinculo matrimoni on thegrounds of actual and constructive malicious desertion; and
for the custody of the child Nilani.
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The first defendant-respondent in her amended answer alleged thatfrom about 1977 the plaintiff-petitioner treated her with cruelty and madeit impossible for her to continue to live with the petitioner, that hecompelled the first defendant-respondent to leave the matrimonial homeon the 8th of February, 1981. She also alleged that the plaintiff-petitionerwas living in adultery with the second respondent since September 1982.She prayed —
that the plaintiff-petitioner's action be dismissed;
that she be granted a dissolution of marriage a vinculo matrimonion the grounds of constructive malicious desertion and or adulteryon the part of the plaintiff-petitioner.
Rs. 300,000/= as damages from the 2nd defendant-respondent;
the custody of the child Niiani;
further reliefs in terms of the provisions of section 615(a) (b) (c) &
of the Civil Procedure Code.
After trial the learned District Judge delivered judgment on 12.5.1988,
dismissing the plaintiff-petitioner's action against the first defendant-respondent with costs;
granting the first defendant a dissolution of the marriage on theground of constructive malicious desertion ;
dismissing without costs the first defendant-respondent's actionfordissolution of marriage on the gound of the petitioner committingadultery with the second defendant-respondent and the claim fordamages from the second defendant-respondent. The Court interms of the provisions of section 615 of the Civil Procedure Codedirected the petitioner to pay the first defendant-respondent a sumof Rs. 1,500/- as permanent alimony per month and maintenancefor the child Niiani in a sum of Rs. 1,000/= per month.
The court also granted the custody of the child Niiani to the firstdefendant-respondent.
The plaintiff-petitioner did not appeal against the said judgmentgranting a dissolution of marriage and the decree Nisi. But howeverappealed against the two orders on the basis –
(a) that the alimony granted to the first defendant-respondent isexcessive and disproportionate to the income of the plaintiff-appellant.
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(b) the granting of the custody of the child Nilani to the first defendant-respondent was unreasonable and contrary to the principles oflaw applicable in relation to the custody of the children.
The first defendant-respondent did not appeal against the said judgmentnor had she appealed against the said orders. But the first defendant-respondent filed her statement of objection on 20.11.88 in terms of theprovisions of section 772(c) of the Civil Procedure Code. She had prayedthat that part of the judgment and decree answering issues 6(c) and 6(4)“as not proved” be answered in her favour and that she be granted adissolution of marriage a vincule matrimoni on the ground ol plaintiff-petitioner living in adultery with the second defendant-respondent.
The learned District Judge had delivered the judgment on 12.5.88 andpronounced decree nisi in terms of the provisions of section 603 and 604of the Civil Procedure Code.
As there was no objection to the decree nisi as envisaged in theprovisions of section 605 of the Civil Procedure Code, the attorney of theplaintiff-petitioner tendered a draft decree absolute to court on 12.10.1968.On 1.11.1988 the petitioner’s attorney filed a motion to call the said casefor the purpose of entering decree absolute. When the matter wassupported on 16.11.88 the attorney of the first defendant-respondenttook notice of the said application and the court made order that the casebe called on 30.11.88 and on that day the court fixed the matter for inquiryon 31.10.89. The first defendant-respondent’s counsel objected to thedecree nisi being made absolute and after considering the writtensubmissions, the learned District Judge on 25.5.89 made an orderdismissing the petitioner’s application to make the decree nisi a decreeabsolute.
It was submitted by the learned counsel for the plaintiff-petitioner thatneither this plaintiff-petitioner nor the first defendant-respondent haveappealed against the judgment of the learned trial judge granting thedivorce. In terms of the provisions of section 605 of the Civil ProcedureCode as there was no objection nor sufficient cause shown why thedecree nisi should not be made absolute, there was a duty cast on courtto make the decree nisi absolute at the expiry of the three months.
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[1990] I Sri L.R.
The learned Counsel also submitted that as there is no appeal againstthe dissolution of the marriage except in the cross objection filed on28.11.88 in terms of the provisions of section 772(1) of the Civil ProcedureCode which too was a result of the application made on 1.11.88, to havethe decree nisi made absolute. When the first defendant-respondentprayed for a finding also on the grounds of adultery of the plaintiff-petitioner with the 2nd defendant-respondent, this relief even if grantedby the court of appeal, the dissolution of marriage, would only bestrengthened by the additional ground of adultery. Section 605 of the CivilProcedure Code is as follows :—
“ Whenever a decree nisi has been made and no sufficient causehas been shown why the same should not be made absolute as in thelast preceding section provided within the time therein limited, suchdecree nisi shall on the expiration of such time be made absolute ".
Section 604 envisages the minimum period necessary to be threemonths for a decree nisi to be made a decree absolute unless the courthad prescribed a longer period.
In the instant case there was no specific period prescribed by court.Therefore in terms of the provisions of section 605 of the Civil ProcedureCode on an application made by either party whether it is the guilty or theinnocent party the court should have entered the decree absolute. It washeld in Hulme King v. De Silva (1) " There is nothing either in law orpractice to prevent an application under section 604 & 605 of the CivilProcedure Code for the making of a decree absolute, being made by theinnocent or by the guilty spouse. ”
In the instant case there was no appeal against “ the dissolution ofmarriage ", as Garvin, J. stated in Silva v. Silva (2) “ the question as towhether or not the marriage should be dissolved is no longer in issueThe appeal cannot in any way affect the question of the dissolution of themarriage between the parties. The provisions relating to matrimonialaction seem to indicate that in the case of an action for a dissolution ofmarriage, the order directing such marriage to be dissolved should beembodied in a decree nisi. At the expiration of the three months, in theabsence of any objections the court is required to make the decree soentered absolute. I respectfully agree with the view expressed by Garvin,
J.This is further strengthened when one considers “ Form 97 of theschedule ".The essence is a decree for a Divorce a Vinculo Matrimonii
CA
B. Kaluarachchi v. N. Wijewickrama and Another (Senanayake. J.)
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The chapter under Matrimonial Actions contemplates the making ofsubsidiary orders relating to permanent alimony, custody of the children,and other settlements in terms of the provisions of section 615 of the CivilProcedure Code. These orders as stated in section 6ljj>(2) can bedischarged, modified, temporarily suspended and revived or enhanced.Therefore I agree with the submission of the petitioner's learned Counselthat these orders could be varied at any time and it was not a part of thedecree nisi It is my view that a permanent alimony order, or any sumordered for the maintenance of a child, or an order for the custody of achild could be varied at any subsequent stage as the circumstances of theparties change. On a decline in the pecuniary condition of a party anapplication could be made successfully to reduce the quantum of alimonygranted. If a party who is given the custody of a child subsequently leadsthe life of a common prostitute, the court considering the paramountimportance of the welfare of the child could vary its own order. It is my viewthat these orders are not entered as a part of the decree nisi. I see noreason therefore why the decree nisi declaring a dissolution of marriageshould not be declared absolute. Section 605 of the Civil Procedure Codestates “such decree nisi shall on the expiration of such time be madeabsolute”. I am of the view that there is no residuary discretion vested inthe court to decline it if any party moves to have the decree nisi madeabsolute.
The learned Judge erred in his order when he considered the possibilityof the appellate court setting aside his judgment even on the issue ofmalicious desertion and thereby the decree for dissolution of the marriage.But the parties in the instant case have not appealed from the decree fordissolution of the marriage. Therefore the Appellate Court will not grantany relief which the parties have not asked for. Section 139 of theConstitution of the Democratic Socialist Republic of Sri Lanka states asfollows
“ The Court of Appeal may in the exercise ol its jurisdiction affirm,reverse, correct or modify any order, judgment, decree or sentenceaccording to law, or it may give directions to such court of first instance,tribunal or other institutions or order a new trial or further hearing uponsuch terms as the court of appeal shall think fit.
(2) The Court of Appeal may further receive and admit newevidence additional to or supplementary of, the evidence alreadytaken in the court of first instance touching the matters at issue in anyoriginal case, suit, prosecution or action as the justice of the case mayrequire."
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The section empowers the appellate court with wide powers.
Similar powers are envisaged in section 773 of the Civil ProcedureCode.
But the appellate court will be guided by the provisions ot section 758
& (/). The appellate court would in law have to consider the demandor the form of relief claimed. If there is no relief claimed to set aside thejudgment and decree for the dissolution of marriage by either party, I amof the view that the appellate court would not grant a relief which no partyhad prayed for. However wide the jurisdiction of the court of appeal maybe it can only exercise it in a properly constituted appeal from judgmentpresented to it by an aggrieved party.
It was submitted by the learned Counsel for the first defendant-respondent that there are no exceptional circumstances for the petitionerto come by way of revision, as the plaintiff-petitioner had appealed fromthe order of the Trial Judge dated 25.5.89. This is an action for divorcefiled as far back as on 27.8.82 and it had taken nearly 7 years for theDistrict Court to conclude the trial. An appeal from the judgment dated
with the present backlog of cases in the appellate court would beconsiderably delayed, even if application is made to accelerate theappeal, forfinal determination in my view would be considerably prolonged.In the circumstances I am of the view, this is an apt case to exercise therevisionary powers of the court: It was held in Atukorale v. Samyanathan(3): “The powers given to the Supreme Court by way of revision are wideenough to give it the right to revise any order made by an original courtwhether an appeal has been taken against it or not '.
The trend of recent decisions is that the Court of Appeal has the powerto act in revision even though the procedure by way of appeal is availablein appropriate cases. In Rustom v. Hapangama & Co. (4) it was held thatthe powers by way of revision conferred on the appellate court are verywide and can be exercised whether an appeal has been taken against anorder of the original court or not. However such powers would beexercised only in exceptional circumstances where an appeal lay and asto what such exeptionable circumstances are, is dependant on the factsof each case.
S. Kaluarachchi v. N. Wijewickrama and Another (Senanayake, J.)
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Vythialingam, J. stated in Rustom v. Hapangama & Co. (supra) "wherean order is palpably wrong and affects the rights of a party also, this courtwould exercise its powers of revision to set aside the wrong irrespectiveof whether an appeal was taken or was available."
In Sinnathangam v. Meeramohideen (5) T. S. Fernando, J. said "Wedo not entertain any doubt that this court possesses the power to set asidean erroneous decision of the District Court in an appropriate case eventhough an appeal against such decision has been correctly held to haveabated. It only remains for us to examine whether there is a substantialquestion of law involved here and whether this is an appropriate case forus to exercise the powers of revision vested in this court".
I am of the view that this is an appropriate case for us to exercise thepowers of revision considering the time already taken in the District Courtto enter a decree of dissolution of the marriage.
I am in respectful and full agreement with the view expressed. It musttake some time for the appeal to be heard. In this circumstance I am ofthe view that the court should exercise its revisionary powers.
In the circumstances I set aside the order of the learned District Judgedated 3.5.89 and direct the court to enter decree absolute. I allow theapplication of petitioner with costs.
The Registrar is directed to forward a copy of the order to the Registrarof District Court, Colombo to be filed of record in D.C. 11651/D Colombo.
S. N. SILVA, J. — I agree.
Appeal allowed.