EDIRIPPULI V. WICKRAMASINGHE

005-SLLR-SLLR-1995-2-EDIRIPPULI-V.-WICKRAMASINGHE.pdf


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Sri Lanka Law Reports
[1995] 2 Sri LR.
EDIRIPPULI
v.
WICKRAMASINGHE
COURT OF APPEALS. N. SILVA, J. (P/CA)
RANARAJA, J.
A. NO. 92/95
C. COLOMBO CASE NO. 16487/DMARCH 7,1995.
Matrimonial Action – Divorce – Alimony pendente lite and costs – Matrimonialfault – Civil Procedure Code, SS. 614, 614(1), 614(3).
Plaintiff-petitioner filed action for divorce on the ground of malicious desertion.The defendant-respondent, prior to filing answer, made an application underSection 614 for Alimony Pendente Lite and costs, by way of summary Procedure.Order Nisi issued was made absolute directing the plaintiff petitioner to payRs. 30,000/- as Alimony Pendente Lite and Rs. 50,000/- as costs.
Held:
An application made under Section 614 for alimony and costs is made in thecourse of the action for divorce and pertains only to a matter of procedure.
The merits of the action and the question of matrimonial fault are not gone intoand do not arise at an inquiry under S. 614.
CA
Edirippuli v. Wickramasinghe (S. N. Silva, J., P/CA)
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The only matters at issue are, the need for financial support, on the part of theapplicant spouse, that stems from the lack of his or her income and the income ofthe respondent spouse.
APPLICATION for Revision of the Order of the District Court of Colombo.
G. Alagaratnam with N. Buhari for petitioner.
Derick Fernando with Miss S. N. Rajakaruna for respondent.
Cur. adv. vult.
March 07, 1995.
S.N. SILVA, J. (P/CA)
This is an application in revision from the order dated 09.01.95. Bythat order learned Additional District Judge directed the petitioner topay a sum of Rs. 30,000/- per month as alimony pendente lite and asum of Rs. 50,000/- as costs.
The plaintiff-petitioner filed the above action for divorce against thedefendant on the ground of malicious desertion. The defendant priorto filing answer, made an application in terms of section 614 of theCivil Procedure Code for alimony pendente lite and for costs. Theapplication has been made as provided for by law, by way ofsummary procedure. In her petition and affidavit she has stated thatshe has no means of income and that the petitioner who is residing inthe U.K. is in receipt of wages amounting to Rs. 150,000/- per month(P2 and P3). Order nisi was made on the basis of this applicationdirecting that the petitioner should show cause as to why an order foralimony pendente lite should not be made in a sum of Rs. 50,000/-per month and costs should not be awarded in a sum of Rs. 50,000/-.A statement of objections supported by an affidavit and 2 documentswere filed by the petitioner to oppose the order nisi.
At the inquiry which was held, the Learned Judge has come to afinding that she cannot accept the affidavit since it is not incompliance with the provisions of section 181 of the Civil ProcedureCode. The affidavit has been deposed to by a person holding thepower of attorney of the petitioner. That person does not have apersonal knowledge of the matters stated in the affidavit. Since theobjections were not supported by evidence Learned Judge entered
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Sri Lanka Law Reports
[1995] 2 Sri L.R.
order absolute, directing the petitioner to pay a sum of Rs. 30,000/-as alimony pendente lite and Rs. 50,000/- as costs.
The petitioner is not seeking to canvass the correctness of theorder of the learned District Judge in rejecting the affidavit. The onlyground now urged is that the defendant is at fault according to theplaint and that no defence has been set up in relation to that fault inthe petition and affidavit claiming alimony pendente lite and costs. Itis submitted that an applicant for alimony and costs should establish,prima facie that such applicant is not at fault.
We have considered the submissions of Learned Counsel. We areof the view that an application under section 614 for alimony andcosts is made in the course of the action for divorce and pertainsonly to a matter of procedure. The merits of the action and thequestion of matrimonial fault are not gone into at an inquiry into anapplication for alimony and costs made under Section 614. If themerits are gone into at this stage it would result in the question ofmatrimonial fault being determined prior to even the pleadings arecompleted. The only matters at issue in an application for alimonypendente lite are the need for financial support on the part of theapplicant spouse, that stems from the lack of his or her income andincome of the respondent spouse. This is made very clear by theproviso to section 614(1) which state that the alimony ordered shallnot be less than 1/5 of the respondent spouse’s average income forthe 3 years preceding the date of the order. Similarly in an applicationfor costs the only matters at issue in terms of section 614(3) areinsufficiency of income or means of the applicant spouse to defraythe cost of litigation and the income or means of the respondentspouse. Thus the merits of the action in relation to matrimonial fault,being the subject-matter of the action, does not arise forconsideration at an inquiry for alimony pendente lite and costs. In thecircumstances, we see no basis to issue notice of this application.Accordingly we make order dismissing the application.
RANARAJA, J. -1 agree.
Application dismissed.