094-NLR-NLR-V-65-G.-A.-ARYAPALA-Appellants-and-L.-ARIYAPALA-Respondent.pdf
Ariyapala v. Ariyapalu
453
1883 Present: B. N. G. Farnando, and T. S. Fernando, J.
G. A. ARIYAPAJjA, Appellant, and L. ARIYAPALA, RespondentS. C. 212 o/ 1960—D. 0. Matara, 271 (D
Divorce—Suit by husband—" Malicious desertion
Where the break up of a marriage and the departure of the husband fromthe wife is due to the violent conduot on the part of the wife whioh is not justi-fied by the behaviour of the husband, the husband may sue for divorce on theground of malicious desertion.
454
H. N. G. FERNANDO,Jf.—Anyapala v. Ariyapala
Appeal from a judgment of the District Court, Matara.
H. W. Jayewardene, Q.C., with 8. 8. Jayetuardene and St N. D.Tilakaratne, for the Plaintiff-Appellant.
N. E. Weerasooria, Q.G., with N. JR. M. Dalutoatte, for the Defendant-Respondent.
May 17, 1963. H. N. G. Fbrnando, J.—
In this action where the plaintiff-husband sued for divorce and thedefendant counterclaimed for divorce, in each instance on the ground ofmalicious desertion, the learned District Judge dismissed both the actionand the counterclaim. He held on the facts that the husband had leftthe wife and commenced to reside in a hotel at Matara. According tothe wife this departure was occasioned by the fact that the husband hadrequested the wife to mortgage her property and lend money to him andshe had refused to do so. This version has clearly been rejected bythe District Judge. The learned District Judge, in fact, accepted thereasons given by the husband for his departure from the home. Accord-ing to him the wife had become jealous because of some associationwhich the husband had with a lady who was a relation to him who livedin the adjoining house and who looked after the children of the husbandby his earlier marriage. The wife’s consequent conduct had been soviolent that the husband said he was compelled to leave the house. Onthis matter the learned District Judge has stated in his judgment thathis opinion is that the wife had made the home miserable by naggingand reproaches and that this conduct on her part was due to her jealousyfor which there were no adequate grounds. Having regard to thisopinion of the facts formed by the learned District Judge it seems to usthat in the opinion of the learned District Judge himself the husbandhad no alternative but to leave the home because the wife was makinghim miserable by her conduct. It has to be held in consequence that thebreak up of the marriage and the departure of the husband was dueto the violent conduct on the part of the wife which was not justifiedby the behaviour of the husband.
The decree dismissing the action is set aside. Let a decree be enteredallowing the plaintiff’s action, granting a decree for divorce a vinculomatrimonii to be made absolute after three months.
There will be no order for costs of appeal.
T. S. Fbhhjjstdo, J.—I agree.
Appeal allowed.