017-NLR-NLR-V-54-DE-MEL-Appellant-and-DE-MEL-et-alRespondent.pdf
de Mel v. de Mel
91
Present: Basnayake J. and Pulle J.DE MEL, Appellant, and DE MEL et al., RespondentsS. C. 277—D. C. Colombo, 1,250IDDivorce—Malicious desertion—Unfounded charge of adultery.-
Where a husband, suspected without reasonable grounds that his'-wife hadcommitted adultery 'and ordered her to leave the house and- TefUsed. to hereconciled to her unless she gave ■» written confession of adultery—'
Held, that there was malicious desertion on the-part of the husband.
(1951) 53 N. L. R. 35.
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PUjlXiE J.—de Mel v. de Mel
Alp.
PEAli from a judgment of the District Court, Colombo.
U. A. Jayasundera, K.C., with J. N. Femandopulle, C. G. Weeramantryand Felix Bahareti, for the plaintiff appellant.
H. Y. Perera, K.C., with N. K. Choksy, K.G., and H. W. Jayewardene,for the first defendant respondent.
N. E. We&rasooria, K.Gwith W. D. Gunasekere, for the seconddefendant respondent.
Cur. adv. vuU.
June 28, 1951. Ptxlxje J.—
This is an appeal in an action for dissolution of marriage institutedby the husband on the ground that his wife, the first defendant, hadcommitted adultery with the second defendant from whom he claimedRs. 10,000 as damages. The defence was a denial and the wife counter-claimed a divorce on the ground that the plaintiff had maliciouslydeserted her. The learned District Judge dismissed the plaintiff’saction against both defendants and entered a decree in favour of thewife dissolving the marriage.
The case for the plaintiff centres round an incident which occurred onthe night of March 7, 1945. The plaintiff and his wife retired for thenight. The second defendant who was a' guest and a friend of thefamily slept in an adjoining room. The plaintiff got out of his bed atabout 1 a.m. and discovered that his wife was not on her bed and thatthe door leading to the room where the second defendant was sleepingwas partly open. He switched on first the light in his room and onswitching on the light of the neighbouring room he saw the wife risingup from the second defendant’s bed. If what the plaintiff says he sawthat night were true, there can be no doubt that a strong prima faciecase of adultery was made, out.,
The wife denies that she lay on -the bed of the second defendant.Admittedly she was in the room of the second defendant but her versionis that she was suffering from a pain in the chest for which she consultedmedical advice only two days previously and that on the night in questionthe pain became worse and she entered the second defendant’s room tohelp herself to a little brandy from a bottle kept in an almirah in thatroom. Having taken the bottle she turned back to proceed to her ownroom and'* thence to the dining room when the plaintiff asked angrily“ Why, why ” and before she could explain he approached her in an
HJ1LE J.1—de Mel v. de Mel
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attitude of violence, whereupon she dropped the bottle on a couch andran towards the drawing room where he gave her a beating. Thehusband admits the beating and justifies it, naturally from his pointof view, on the ground of provocation.
But for the unusual hour at which the wife was discovered in the room,it could not he a matter for comment if the wife entered the adjoiningroom, even when the second defendant was there alone, on some legitimatebusiness. The second defendant was a friend who had a few weekspreviously been lodging with them. It was also customary for the wifeto prepare the second defendant’s bed and take a cup of “ Ovaltine ” tothe room before he retired.
Whether the version given by the wife was probably true dependedprincipally on the independent evidence called to support her. ThePolice Sergeant and Proctor E. B. Sumanatilake who came before dawnthe same night testify to having seen the bottle of brandy on the couch.It is undisputed that she gave her version regarding the bottle of brandyto the Police Sergeant who recorded her statement. Learned Counselfor the husband has invited us to-reverse the finding in favour of thewife because her evidence that she switched on the light on entering thesecond defendant’s room was disbelieved. The learned trial Judgeaccepted the wife’s evidence as to the purpose for which she entered theroom because it was corroborated by reliable evidence. He did applyhis mind to the effect of disbelieving her on this part of the case. Hestates, “ In spite of the first defendant’s want of candour on this point,I accept as true her explanation for her presence in the visitors’ roomthat night ”. The reason given by the trial Judge appears to be adequateand I see no ground for reversing the finding in her favour on the issueof adultery..
It was next submitted that even if the issue of adultery was answeredagainst the husband the learned [District Judge was wrong in allowingthe wife’s claim for a dissolution of the marriage on the ground of mali-cious desertion. At the outset I may state that the trial seems to haveproceeded on the tacit understanding that if the Court accepted thewife’s version of her presence in the visitors’ room, her counterclaimwould succeed. I cannot, otherwise, understand from the note ofCounsel’s arguments why no reference whatever is made by'them to theissue of desertion and the learned trial Judge himself deals with it inthree lines.'
“ As regards the first defendant’s claim in reconvention I would holdthat the plaintiff’s conduct amounts in law to constructive maliciousdesertion ”..
The only point taken in the petition of appeal bearing on the issue ofdesertion is that in any event the alimony awarded was excessive. Bethat as it may, it was not contended at the argument in appeal that theappellant was precluded from attacking the decree in bis wife’s favour.
In examining the evidence of desertion and the authorities cited inconnexion therewith, it is essential to remember that the plaintiff’s
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PULLE J.—de Mel v. de Mel
version that he saw his wife in the act of rising from the second defen-dant’s bed has been rejected. After the assault he asked her to clear outof the house and she left on the morning of March 8. From that datedown to November 29, 1945, when the plaint was filed, the husbandpersisted in maintaining that his wife had committed adultery andrefused to be reconciled to her on the basis of her version of what hadhappened. He wanted nothing less than a written confession of adulterywith which he intended to pursue an action for damages against thesecond defendant. If the wife did not commit adultery a confession,written or otherwise, was out of the question. His attitude towards thewife is summed up by his own evidence :
“ I was quite convinced in my own mind that my wife would not havegone into second defendant’s room except for the purpose of committingadultery. There was no stage after this incident when I contemplatedtaking back my wife. I was adamant about not taking her backAt the time he filed the action he was not merely convinced that hiswife had committed adultery on March 7 but also on November 15,
' 1944, and February 26, 1945. The latter charges were not, however,pressed.
On the charge of desertion learned Counsel for the husband reliedstrongly on the following proposition laid down by Lord Merriman inthe case of Glenister v. Glenister 1:
“ If the wife has so conducted herself as to lead any reasonable personto believe, until she gives some explanation, that she has committedadultery, the husband becoming aware of the facts and honestly drawingthat inference and leaving his wife on that ground ought not to be heldto have left her without reasonable cause. ”
In my opinion Glenister’s case can clearly be distinguished from thefacts as found by the trial Judge in the present case. The admittedfacts of Glenisler'3 case, namely, the presence of strangers in the houseduring the absence of the husband and the birth of a child probablyconceived at a time when the husband could not have had access to thewife pointed to adultery. When one has regard to all the facts, not thefacts which constituted the husband’s version of the incident, could theplaintiff have honestly believed that his wife had committed adultery ?The only point that could be made against her is that she entered adark room to take a bottle of brandy from the almirah at one end.Prior to March 7 she was admittedly a chaste and faithful wife. Therewere no recriminations and no suspicions. The husband was awarethat she was ill two days previously and ought to have known that thedoctor had prescribed brandy as a palliative. Was it reasonable onhis part to put the worst construction possible on her presence in the room,fly into a temper and assault her and then order her out of the houseafter turning a deaf ear to the explanation which she offered ? I amunable, on the facts as found by the District Judge, to hold that thehusband had any reasonable grounds for believing that adultery hadbeen committed.
(1945) P. 30.
PTTT.LT1 J.—de Mel v. de Mel
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In the case of Silva v. JUissinona1 Bertram C. J. ventured to define“ malicious desertion ” as a “ deliberate and unconscientious, defimteand final repudiation of the obligations of the marriage state ”. Therepudiation must be sine animo revertendi. A knowingly unfoundedcharge of adultery accompanied by a request to leave the matrimonialhome is to my mind a final repudiation of the marriage state, wheresuch a charge, as in this case, is persisted to the end. No wife innocentof such a charge could be expected to offer a renewal of her consortiumwith the husband so long as he maintained the charge. According tothe evidence a reconciliation was only possible if the wife confessed toadultery in writing. In the case of Dallas v. Dallas 2 the wife petitionedfor divorce on the ground of adultery coupled with desertion. Thehusband refused to live with his wife unless she wrote a letter exoneratinga lady of whom she believed she had reason to be jealous. The wife’srefusal to write the letter which led to the separation was held to hedesertion on th6 part of the husband. A spouse who lays down a conditionfor reconciliation which no self-respecting person could accept musttake the full consequences of such a condition being rejected.
There remains to consider the case of Thelland v. Thailand3 cited onbehalf of the plaintiff. The wife sued for a judicial separation on theground of cruelty. The hushand counterclaimed .a divorce for adultery.There was not sufficient evidence of physical cruelty, hut she was granteda decree and the custody of the children, because slight evidence ofphysical cruelty was coupled with an unfounded charge of adultery.In appeal the decree was set aside for the reason that, although thehusband failed in convincing the trial Judge that adultery was actuallycommitted, the facts before him were sufficient justification for hisbelief that adultery had been committed and that the bringing of thecounter-charge could not, therefore, amount to cruelty. By analogyit is argued that a separation brought about by a charge of adultery,which ultimately failed, cannot amount in law to malicious desertion.When the facts of Thelland v. Thelland are examined the differences arestriking. In support of the counterclaim the husband produced severalletters written by his wife praying for forgiveness which according to theCourt of Appeal were inconsistent with her innocence. For reasonswhich T have given earlier the finding of the learned Judge as to what theplaintiff must have seen on entering the visitors’ room, and not what hestates he saw, could not have reasonably created in his mind the beliefthat his wife had committed adultery.
I would dismiss the appeal with costs.
Basnayake J.—I agree.
Appeal dismissed.
(1924) 26 N. L. R. 113.
31 Law Times Reports 271.
(1906—1909) 3 Appeal Court Cases 528.