H. JOHN PERERA, Appellant, and H. MATHUPALI, Respondent

098-NLR-NLR-V-71-H.-JOHN-PERERA-Appellant-and-H.-MATHUPALI-Respondent.pdf


Perera v. Mathupali
461
1968Present: Slrlmane, J., and de Kretser, J.H. JOHN PERERA, Appellant, and H. MATHUPALI, Respondent8. C. 164j67—D. C. Colombo, 6613fD.Divorce—Suit by husband—Husband guilty of matrimonial offence—Delay in filingaction—Circumstances when he may nevertheless be granted divorce—Discretionvested in the Court—Scope—Civil Procedure Code, proviso to s. 602.
Plaintiff-appellant sued his wife for divorce on the ground of maliciousdesertion. The parties were married on 7th July 1943, and from April 1949 thedefendant was living with a paramour by whom she had a child. The plaintifflived with a mistress from 1957 and had three illegitimate children by her. Hegave reasonable excuses for delaying to file the present action.
Held, that, despite the plaintiff’s matrimonial offence and his delay in filingthe action, it was apparent that the marriage had completely broken down and,with due regard to the sanctity of marriage, there was hardly a reason why themarriage tie should continue. In the circumstances, the discretion vested inthe Court by the proviso to section 602 of the Civil Procedure Code should heexercised in favour of the plaintiff, in the interests of the children, the womanwho lived with him, and also in th > interests of the defendant and her child.
A.PPEAL from a judgment of the District Court, Colombo.N.E. Weerasooria (Jnr.), for the Plaintiff-Appellant.8. A. Marikar, for the Defendant-Respondent.2820 (4/60)
Cur. ado. ouU.
462
SIRIMANE, J.—Perera v. Mathupali
December 14, 1908. Sirimane, J.—
This was an action for divorce filed by the plaintiff husband againsthis wife on the ground of malicious desertion. His evidenco, which wasuncontradicted, shows that the parties wore married on 7th July, 1943and that in April 1949, the defendant committed adultery, andthereafter continued to live with that man, by whom she has a child.The learned District Judge was clearly wrong in answering the issuerelating to malicious desertion against the plaintiff-appellant.
The plaintiff gavo his excuses for delaying to file his action, e.g.,illness, several transfers to various places in the course of his employ-ment, lack of funds and his inability to ascertain the whereabouts of thedefendant. This evidence, as I said, was uncontradicted.
It also transpired in the course of his evidenco that he had been'injured in a .motor-car accident and was disabled for about one and ahalf yoars. During that period, another woman had looked after himand he had taken her as his mistress. He has three children byher now.
It is quite clear from these facts that this marriage is quite dead now.
The plaintiff lives with a woman whom he cannot marry and has threechildren, who are illegitimate. The defendant too lives with a man whocan only be her paramour, and has a child who is illegitimate. Theplaintiff said in cross-examination that he filed this divorce case as therewas no future for his children in the present state of affairs.
The proviso to section 602 of the Civil Procedure Code enacts that theCourt shall not be bound to pronounce a decree for divorce if it findsthat the plaintiff himself has been guilty of adultery, or of unreasonable•delay in coming to Court, or cruelty towards the other party, or if he haswilfully separated himself or wilfully neglected the other party which ledto that party committing adultery.
In Abraham v. Alwis 1, this Court held that it should not interferewith the discretion exercised by a trial Judge under section 602 of theCivil Procedure Code unless it feels that the discretion has not beenproperly exorcised. The learned District Judge in that case reliedstrongly on the words of Garvin, J. in Seneviratne v. Panis Hamy 2 wherehe said “ He who seeks to be roleased from matrimonial tie must himselfbe free from matrimonial offence. This rule can only be relaxed inexceptional cases and whero the relief prayed may be granted without
1 42 N. L. B. 373.
* 29 N. L. R. 97.
SIREMANE, J.—Perera v. Mathupali
463
prejudice to the interests of public morality Moseley, J. in that casereferred to four circumstances which should be taken into considerationin exercising the discretion under section 602. They are—
the position of the children to whose interests it was that, they
should have a home with the sanctions of decency and. so faras may be, of the law ;
the position of the woman with whom the petitioner was living, for
it was clearly desirable in her interests that she should belawfully married;
the case of the respondent as to whom there was no prospect that
refusal of relief would have the effect of reconciling her with thepetitioner; and
the case of the petitioner, in whose interests it was that he should
be able to marry and live respectably.
In Becker v. Becker 1 the parties were married in 1935 in Poland. Theyseparated in 1939 when the husband was called up for service in thePolish Army.. After the war, he wrote to his wife to join him in Italyand later in England but she refused to do so. He filed a petition fordivorce in 1965. The petition was dismissed on the ground of unreason-able delay in presenting it. In appeal, the order was reversed and it washeld that delay, in desertion cases was not, on the face of it, to beregarded as a reason for refusing a decree ; that as the marriage was asdead as if could be and a reason for divorce had been given, the husband’sdelay in presenting the petition should not be regarded as a bar. In thatcase, the husband petitioner had also committed adultery. LordDenning, M.R., said “ There is the further question of the discretionstatement. This man has over the years had associations with morethan one woman. In view of the long separation from his wife, I do notthink it should be taken too much against him—at all events not to theextent of refusing a decree ”.>
In Lowry v. Lowry 2, the husband filed a petition for divorce in 1965.(The parties were married in 1928.) The facts proved weie that thehusband had deserted his-wife in 1946. In 1956 he returned to hismatrimonial home “ in order to keep his eye on the youngest child ”. .But though he and his wife lived under the same roof, they lived .separate lives. The separation was by mutual consent. Between 1953and 1956, the wife was guilty of cruelty. (She. frustrated the efforts ofher husband to sleep during the day by working noisily after he had beenon duty at night.) The husband had formed an adulterous associationwhich continued from 1961 to 1964. He sued for a divorce on the.ground of cruelty and desertion and asked the Court – to exercise itsdiscretion in his favour. The wife counter-sued for a judicial separation.The President granted the husband’s petition and dismissed the wife’sclaim. .The decision was upheld in appeal and Willmer, L.J. referring1 (1966) 1 Weekly Law Reports, 426.* (1967) 1 W. L. R. 789
464
DE KRET8ER, J.—Porcra v. MaUhupali
to the President's order, said at page 791 “ He had to balance theconsideration of respect for the sanctity of marriage (which is ofparticular importance in the present case in view of the wife’sconscientious objections to divorce) against the public interest whichis involved in the question whether it is right to keep in being amarriage which has so obviously and so hopelessly and completelybroken down
On the facts of tins case, it is apparent that this marriage too hascompletely broken down and with due regard to the sanctity of marriage,there is hardly a reason why the marriage tie should continue.
In the circumstances of this case, I think that the discretion shouldhave been exercised in favour of the plaintiff-appellant, in the interestsof the children, the woman who lives with him, and also in the interestsof the defendant and her child. The order of the learned District Judgeis set aside and I direct that a decree nisi be entered granting theplaintiff a divorce from the defendant.
DB KRKTSER, J.—
The facts are set out in the judgment of Sirimane, J., which I havehad the advantage of perusing and with which I agree. It is open to usto interfere in a case such as the present one if we feel that the discretionvested in the court of first instance has not been properly exercised, andof course the fact that this court would have given a different judgmentif it was the trial court is no reason to interfere with a properly useddiscretion of a trial judge. In the instant case the trial judge (Mr.Corbett Jayewardene) does not appear to have considered whether thiswas not a case in which he should exercise the discretion vested in himdespite the long delay in coming to court and the admitted offence onthe part of the plaintiff. He has not considered why these thingshappened, before he held that owing to them he was unwilling to exercisehis discretion in favour of the plaintiff. It appears to me, therefore,that the door is wide open for me to consider whether this is not a fitcase for the exeroise of the discretion.
In regard to delay the facts given by the plaintiff are not contradictedand in the situation the plaintiff found himself in 1949 the reasonsappear genuine and adequate. It was not until 1957 that he committedmatrimonial offence and the circumstances under which he took a mistressare frankly admitted and in the circumstances he found himself in, quiteunderstandable.
The President in the case of Apted v. Apted and Bliss1 pointed outthat “ in every exercise of discretion the interests of the community atlarge in maintaining the sanctions of honest matrimony is a governingconsideration ”. And undoubtedly it should be for the sanctity of themarriage tie and public morals must be safe-guarded. But one mustalso, I think, be careful to see that the attempt to safeguard does not infact cause further damage to them.
» (1930) 48 T. L. R. 468.
Abeyaekera v. dc Livera
465
It is an incontrovertible fact that this marriage is at an end, and toconvert to Unholy Deadlock what was once and..is no longer HolyWedlock by refusing to exercise a discretion vested in a judge so far fromsafeguarding the sanctity of marriage appears to me to make a mockeryof it and is not in the publio interest, for I think one must pay some heedto the change in the attitude of the society we live in in regard to “ thesanctions of honest matrimonyIn the days when the Civil Procedure
Code was enacted—section 602 is in fact based on section 31 of theMatrimonial Causes Act of 1867—the man and woman who “ lived insin ” because they could not obtain freedom to marry, because they hadmatrimonial offences to their discredit were social lepers. Today, thatis not the case, and that is laregly due to the sympathy felt, towards thosewho are unable to regularise such unions whether due to antiquateddivorce law or the too stringent exercise of a discretion vested in a divorcejudge. It appears to me that when a court is satisfied that the marriagebetween the parties is truly at ah end it should exercise its discretionwith a view to rehabilitate and not to punish. The exercise of discretionin a manner that would tend to regularise union in the interests of theparties and the innocent children born to them is in the public interestand in my opinion a correct use of the discretion vested in a judge. Toso exercise it when one views the matter in its proper perspective does nodamage to the sanctity of marriage and in fact enhances respect for thelaw.
I agree' with the order made by Sirimane, J., in regard to this appeal.
Appeal allowed.