002-NLR-NLR-V-34-GOONAWARDENE-v.-WICKREMASINGHE.pdf
Goonewardene v. Wickremasinghe.
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1932
Present: Garvin S.P.J. and Maartensz A.J.GOONEWARDENE v.' WICKREMASINGHE
154—D. C. (Inty.) Galle, 29,292
Divorce—Evidence of malicious desertion—Intention to repudiate marriagestate—Sufficiency of proof.
In an action for- divorce on the ground of malicious desertion, evidenceof desertion must be of such a character as would justify the inferencethat the spouse, who is alleged to have deserted the other, did sodeliberately and. with the intention of repudiating the marriage tie.
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GARVIN S.P.J.—Goonewardene v. Wickremasinghe.
PPEAL from a judgment cf the District Judge of Galle.
Rajapaks'e, for defendant, appellant.
H. V. Perera, for plaintiff, respondent. •
February 5, 1932. Garvin S.P.J.—
This is an appeal by a wife from a decree granting a divorce a vinculomatrimonii to her husband. The ground upon which it was sought toobtain a dissolution of this marriage was that the defendant hadmaliciously deserted her husband. The answer denied the averments inthe plaint and further pleaded that the defendant had been ill for some-time and remained at her parents’ house with her husband’s consent.She further pleaded that she was “ now somewhat well and quiteprepared to go with the plaintiff ”. At the trial a further offer appears tohave been made by or on behalf of the defendant to return to her husband.This the plaintiff rejected, giving as his reason that he thought it was notsincere.
The parties were married on June 12, 1924. At the time the petitionerwas employed in the General Post Office, Colombo. After a short stayat Matara, which was the home Of the wife, they went to Colombo wherethey lived in one house with the petitioner’s brother. In October, 1924,the petitioner was transferred to Matara where he lived with his wife forabout a year. He then appears to have been transferred to Kalutara.In the year 1926 a child was born to the parties at the respondent’sparents’ house and the petitioner says that after the birth of the childhis wife did not return to him and continued to live with her parents.He says she refused to go to Kalutara and gave as her reason that shewa^not willing to live with him. He did not, however, treat this as anact of malicious desertion, and in view of the evidence to which I shallpresently draw attention his failure to do so would seem to be attributableto the fact that he knew his wife’s condition and thought that it was bestunder the circumstances that she should remain with her parents. Thepetitioner was transferred to Colombo in April, 1929, and he appears toHave rented a house iii November, 1929. His wife returned to him andthey lived together as man and wife with their child. The petitionersays nothing of their life together, presumably because there was nothingspecial which called for comment or mention. On June 16, 1930, he saysthat when he returned from office he had his dinner and then stepped outof the house. He noticed his wife standing leaning against a pillar. Shehad declined to partake of the meal for apparently no reason whatsoever.While he was outside-he heard the cry of his child and he entered the houseand asked what the matter was. Then, to use his own words “ Defendantjumped at me (him) and bit my (his) hand. I understood that the childhad been asking the defendant to take her dinner. She had been pushingthe child. I understood that if not for the servant woman the childwould have been injured ”. The next day he says the respondent wantedto return to her parents’ house and he immediately made arrangements' to take her there and did so. Nothing appears to have transpired from’June' 17 till August 9, when he says he went to Matara and invited her
GARVIN S.P.J.—Goonewardene v. Wickremasinghe.
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to return and that she refused to come. He says that he then wrote her aletter which has not been produced to which she replied by the letter P 2,the terms of which are as follows : —“ Letter sent was to hand. I cannotcome over there leaving my parents’ house. Therefore, it is better forMahatmaya to get made other arrangements. I am, &c.” He saysthat he then sent his mother to ask her to come back and as she refusedhe instituted this action on November 20, 1930.
The petitioner is apparently wholly unable to account for this suddenand extraordinary' outburst on the part of his wife which he says tookplace on June 16, 193p:She said nothing in explanation and he evidently
had done nothing to provoke her nor had the child. There is no evidencethat this lady was given to outbursts of this description or to commitacts of violence such as she appears to have committed on this occasion.That the incident did occur is proved by a number of other witnesses.
Unfortunately in this case we have not had the advantage of hearingthe respondent. She appears to have been called into the witness boxtwice in the course of this trial and on each occasion the District Judgesays that she would not take the affirmation and would not speak ; andthe District Judge’s own impression formed after having watched herthroughout the course of this trial is that she appeared to be mentallydefective. He says that he first ^thought that she was shamming butlater he formed a definite impression to the contrary. A serious doubttherefore arises as to whether in any event these proceedings can bepermitted to stand, but it is unnecessary to consider that aspect of thematter further for the reasons which will presently appear,
Now there is a considerable body of evidence in this case that thiswoman has had mental trouble and that her condition becomes graver andmore acute whenever she is pregnant. She has been treated by a priestwho is said to be a mental specialist. Another Veda Aratchy saysthat he treated her in 1926 at a time when she was with child and was“ a little off her head ”. Finally, Dr. Paul Perera states that he treatedher in December, 1928, and February, 1929, for mental trouble. • Theprescription he gave her, he says, was for neurasthenia and a general rundown condition. Having observed the respondent in Court he expressedthe opinion that she seemed to be melancholic. There is in addition theevidence of one Martin Wickremasinghe, a witness to whose evidence thelearned District Judge attaches considerable weight, who' is a relative of'the respondent’s father, and who for some time lived at Borella close tothe petitioner’s house. He was apparently on friendly terms with themand he says that the respondent was of unsound mind, stating definitelythat she was mad, and adding “ occasionally she appeared to be sane ”.All this evidence is strongly .corroborative of the evidence of the respond-ent’s father, who says that his daughter was of unsound mind and thatthe petitioner was aware of it.. He says he had her treated and statedthat she was worse during her pregnancy. His evidence affords anexplanation of her lengthy residence with her parents after the birth ofiher first child and continuing till November, 1929, , when she returned toher husband. It is a far more probable explanation than that which thepetitioner gives, namely, that she refused without reason to return to him.
8GARVIN S.P.J.—Coon ewardene v. Wickremasinghe. •
Now, it is significant that at the time of this outburst on June 16, 1930,the respondent must have been pregnant, because she gave birth to achild, which, the petitioner admits, was his in March, 1931. If, as thefather says, there was a marked tendency for mental disturbance tomanifest itself at this period, one has a perfectly natural explanationof this amazing outburst for which no other explanation has beenoffered.
The father’s story is that the respondent was brought to his house bythe petitioner and that she remained there with him till the child wasborn and that it was only after that event that she gradually began toimprove. Now, there is no doubt that the learned District Judge washimself inclined to take the view that this story was substantially true.There are certain minor points on which the respondent’s father on theone side and the petitioner’s mother on the other side come into conflict.The learned District Judge says that both parties have strayed a littlefrom the truth in certain matters. But, upon the whole; he seems tohave accepted the story of the father of the respondent, and, for my ownpart, I can see no reason, in view of the large amount of corroborationwhich exists in this case, for taking any other, view. There is here agood deal of evidence, which justifies the inference that about the middleof June, 1930, this unfortunate lady had a relapse and that her mentalcondition has continued to be bad ever since. It may well be as thelearned District Judge says that there might have been a lucid intervaland this may possibly account for the apparently rational character ofthe letter P 2. That letter is certainly capable of the explanation that itwas written by the woman at a time of intense depression proceedingfrom a consciousness of her own condition.
The question we have to ask ourselves is whether in this state of theevidence it is possible to hold that the petitioner has succeeded inestablishing that there was in this case desertion and that the desertionwas malicious.
It is unnecessary to enter upon any definition of what exactly is.meantby malicious desertion, but this at least is clear, that it must be of such acharacter as would justify the inference that the spouse who is alleged tohave deserted the other did so deliberately and with the intention ofrepudiating the marriage state. With the exception of the letter P 2and the evidence of the petitioner’s mother as to the refusal of therespondent to return to her husband, there is nothing to support thecase for the petitioner. On the other hand there is this large volume ofevidence which points to the conclusion that this lady has during thewhole of this period between the middle of June, 1930, and the trial ofthis case, and for a considerable period prior thereto terminating aboutNovember, 1929, been of unsound mind. Apart from the direct evidenceof the father upon the point there are indications in certain of the letterswritten by the petitioner himself that he was aware of her condition.It seems to me that in these circumstances it was impossible to treatthis as desertion at all, and that if the evidence of the father is to bebelieved the presence of his daughter in his house which commenced
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when the petitioner himself brought her there continued for no otherreason than that she was not in a fit condition to return. In my opinionthe petitioner has failed to establish his plea of malicious desertion.
The judgment under appeal must, therefore, be set aside, and the'plaintiff’s action dismissed with costs in both Courts.
Maartensz A.J.—I agree.
Set aside.