064-NLR-NLR-V-46-EDWIN-PERERA-Appellant-and-BISSO-MENIKA-Respondent.pdf
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WIJB YEWAHDBNE J.—Edwin Perera and-Bisso Menika.
1948Present: Wljeyevaidene J.EDWIN PEBEBA, Appellant, and BISSO MENIKA, Beapondent.
95—M. C. Kandy, 15,420.
Maintenance—Application by wife—Invitation by husband to come back—
Refusal of wife—False allegation of adultery—Sufficient reason.
Where, in an application for maintenance by a wife against herhaaband, the applicant refused an invitation by the respondent to go-back to him,
Held, that a false allegation of adultery made by the respondentagainst the applicant was a sufficient excuse for her refusal.
^^PPEAL from an order of the Magistrate of Kandy.
Cyril E. S. Perera (with S. W. Jayaeuriya and E. P. Wijetunge), fordefendant, appellant.
No appearance for the applicant, respondent.*
March 21, 1945. Wijeyewahdene J.—
The applicant is the wife of the respondent and has two childrenaged ■ five and two years. The applicant claimed maintenance in this-action for herself and the younger child only, as the respondent hadremoved the elder child when she was in hospital.
This action was filed in July, 1944. Summons could not be servedon the defendant till October. He appeared in CoUrt .in. October and“ invited her back ” to his house. The applicant rfefused to go with himalleging that he was living in adultery and '"had been treating herhabitually with cruelty.V
The applicant has failed to prove that the defendant was living inadultery with the servant woman, Bandara Menike.
The Magistrate has accepted the evidence of the applicant that therespondent assaulted her on three occasions and threatened once to stabher. She stated that the respondent used to say that the servant womanBandara Menike looked after the elder child better and she added,“ He abuses me and speaks well of Bandara Menike ”.
When she filed the present action for maintenance, the defendant onwhom the summons could not be served for three months seized theopportunity to file an action for divorce stating that she had committedadultery with one Ekanayaka. He says he based that allegation on aletter D 2 and two envelopes D 1 and D 3 discovered by him. The applicantfiled answer immediately denying the allegations made against her andstating that the respondent 'jvas living in adultery with Bandara Menike-The defendant, thereupon, withdrew the divorce action, as,- he says, he“ wanted to contest tins case ”. It is difficult to understand the reasongiven by the defendant for withdrawing the action especially in view of thefact that he filed the divorce action after the institution of the presentproceedings against him. In the present action he persisted in alleging
wM KVBWAKnBWB J.—Suppiah PaUe and Samarakone.
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that the applicant was “ intimate with Ekanayaka He made noeffort to prove the genuineness of Dl, D2 and D3. I think the Magistrateis right in holding that Dl, D2 and D3 have been fabricated.
I do not think that the defendant has been honest in his invitation
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to the applicant to go back to him but has made that offer with the soleobject of escaping his obligation to maintain her. Moreover, I think the.applicant has sufficient reason within the meaning of section 4 of theMaintenance Ordinance for refusing to live with the defendant especiallyIn view of the baseless charge of adultery made against her in the divorceaction and repeated in this case.
I dismiss the appeal.
Appeal dismissed.