104-NLR-NLR-V-73-D.-S.-WIJERATNE-Appellant-and-JOAN-A.-WIJERATNE-Respondent.pdf
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Wijcratne v. Wijcratne
1967Present: Alles, J., and Siva Supramaniam, J.
D. S. WIJERATNE, Appellant, and JOAN A. WIJERATNE,Respondent
S. C. 403{65(F) and 104166 (Inly.)—D. C. Colombo, 6366jD •
Action for divorce—Determination of amount of permanent alimony—Relevancy of nanclaimed as alimony pendente Iite.
In an action for divorce, sufficient ground must bo shown before the Courtcan award as permanent alimony a sum in excess of the amount claimed by thewife as alimony pendente lite.
A PPEAL from an order of the District Court, Colombo.
H. W. Jayeicardene, Q.C., with J. FernandopuUe and S. G. Crosetle-:Thambiah, for the defendant-appellant.
. L. IV. Alhulalhmudali, for the plaintiff-respondent.
. Cur. ado. vult..-
SIVA SUPRAM.4NIAU, J.—Wijtralne v. Wijtralne
547
July 3, 1967. Siva Supramaniam, J.—
The only matter canvassed in the course of the aignment in appeal inthis case was the quantum of the permanent alimony awarded to therespondent. Tho learned District Judge dealt with this question in hisjudgment in a brief paragraph which runs as follows :—
“ Tho plaintiff has asked for permanent alimony in a sum of Rs. 1,000per month together with a sum of Rs. 400 being Visa Tax payableannually and Rs. 350 per month for the maintenance of her son.Considering the monthly income of the plaintiff (defendant) as wouldappear from the evidence of Louis the Chief Accountant of Lever Bros,and tho fact, that a rich uncle had left him an estate worth over half amillion rupees, the amounts asked for by the plaintiff are very reasonableand should bo allowed.”
Counsel for the appellant submitted that the sum of Rs. 1,000 permonth awarded as permanent alimony is excessive and is not warrantedby tho evidence in the case. He had no objection to the order directingthe appellant to pay a sum of Rs. 350 per month as maintenance for thechild.
According to the evidence of Louis, to which reference was made bytho learned Judge, the nett salary earned by the appellant in the year1964 (when the action was instituted) was about Rs. 1,944 per mensem.The learned Judge misdirected himself on the facts when he assumedthat the appellant had inherited from his uncle an estate worth over halfa million rupees. The evidence showed that the appellant and hi3brother were equally entitled to the inheritance. The estate consistedprincipally of about 200 allotments of village lands. There was noevidence led by either party in regard to tho income derivable from thesaid lands.
Although the plaintiff-respondent claimed in her plaint dated 16thMarch 1964 a sum of Rs. 1,000 per month as permanent alimony, in herpotition filed on 6th April 1964 (which was supported by an affidavit) sheclaimed only a sum of Rs. 750 a month as alimony pendente lite. On thedate fixed for inquiry the parties arrived at a compromise in terms ofwhich the respondent was content to accept Rs. 500 per month as alimonypendente lite.
Tho sum of Rs. 750 was claimed as alimony pendente lite by the res-pondent on the basis (which was, however, not admitted by the appellant)that the appellant’s montlily income was Rs. 5,000—Rs. 2,500 as salaryand allowances and Rs. 2,500 as incoino from his property. It was notthe respondent’s caso that tho appellant’s total incotuo exceeded Rs. 5,000por month on tho date on which tho order for pormanent alimony wasmade. Nor was there any evidence to show that the circumstances ofthe respondent had changed between tho date of her application foralimony pendente lite and the date of tho order for jvermanent nlimonj* insuch a manner as to render tho amount claimed by her in her petition for
Attorney-General v.'Edin Silva
648
alimony pendente lile inadequate for her needs. The learned trial Judgeshould have paid due consideration to these matters before ho made hisaward for permanent alimony but ho failed to do so.
Under the English practice, where there has been a full inquiry intothe means of the parties upon an application for alimony pendente liletheamount of permanent alimony is determined upon the evidence thengiven and the question is not permitted to be reopened unless thecircumstances have meanwhile changed. (Vide Bonser v. Bonser 1.) In theinstant case, however, there was no inquiry into the means as the amount,was fixed by consent.
Having regard to all the circumstances of the case, we do not thinkthere was sufficient ground for the learned trial Judge to award to theplaintiff-respondent as permanent alimony a sum in excess of the amountclaimed by her in her petition as alimony pendente lile. We are thereforeof opinion that the sum of Rs. 1,000 per month awarded as permanentalimony should be reduced to Rs. 750 per month. In addition theappellant will pay the respondent such sum, if any, as she may be calledupon to pay each year as Visa Tax during her stay in this country. Thedecree nisi and the decree absolute entered thereafter will bo variedaccordingly.
i %*.!
Subject to the above variation the appeals are dismissed with costs. •
Aii.es, J.—I agree.
Order varied.