015-SLLR-SLLR-2008-V-1-JAYAWARDENE-v.-PRIYASHANIE.pdf
184Sri Lanka Law Reports[2008] 1 Sri L.R
JAYAWARDANEv
PRIYASHANIECOURT OF APPEALWIMALACHANDRA, J.
BASNAYAKE, J.
CALA 170/2006DC ATTANAGALLA 234/DFEBRUARY 14, 2007JUNE 13, 2007
Civil Procedure Code – Section 605-Section 615 (2) – Matrimonial actions -Divorce in favour of the defendant – Alimony not awarded – Appeal – Couldthe decree nisi be made absolute – Could subsidiary order be made underSection 615(2)? – Who could make any application under Section 605?
The Court granted a divorce in favour of the defendant – She was awardedcustody of the child, no alimony was awarded. The defendant appealedagainst the portion of the order concerning the non payment of alimony.
The plaintiff-respondent sought to have the decree nisi made absolute, afterthe three month period. The Court refused the application, on leave beingsought.
Held:
The benefit of Section 605 is available to either party in a divorce case.No restrictions have been imposed that it is the party in favour of whomdivorce is granted that could resort to Section 605.
Held further:
The appeal is with regard to the payment of alimony and not thedissolution of the marriage.
Chapter under matrimonial actions contemplated the making ofsubsidiary orders relating to permanent alimony, custody of children,and other settlements in terms of Section 615, these orders can bedischarged, modified temporarily suspended and revised or enhanced.They are not part of the decree.
qaJayawardane v Priyashanie135
(Eric Basnayake, J.)
There is no residuary discretion in the Court to decline it, if any party movesto have the decree nisi made absolute.
APPLICATION for leave to appeal from an order of the District Court ofAttanagalla.
Case referred to:
B.Kaluarathchi v Wijewickrama 1990 1 Sri LR 262.
Geeshan Rodrigo for plaintiff-petitioner.
S.N. Vijithsingh for defendant-respondent.
February 11, 2008ERIC BASNAYAKE, J.
This is a leave to appeal application filed by the plaintiff-petitioner (plaintiff) to have the order of the learned District Judgeof Attanagalla dated 26.04.2006 set aside.
The plaintiff filed action in the District Court of Attanagalla tohave a decree of divorce on the ground of malicious desertion ofthe defendant. The defendant filed answer and sought a divorceon the ground of constructive malicious desertion on the part ofthe plaintiff. The defendant also prayed that she be given thecustody of the minor child and Rs. 500,000 as alimony. Thelearned District Judge by his judgment granted a divorce in favourof the defendant-respondent (defendant). The defendant was alsoawarded custody of the child. However, no alimony was awardedsince no evidence was adduced to prove the income of theplaintiff. The defendant appealed against that portion of the orderconcerning the non-payment of alimony.
On 01.09.2005 the plaintiff filed a motion to have the decreenisi made absolute. By that time three months period had lapsed.The Court after inquiry refused to make the decree nisi absolute.The plaintiff is seeking leave to appeal against this order.
Section 605 of the Code of Civil Procedure is as follows:-
Whenever a decree nisi has been made and no sufficientcause has been shown why the same should not have been
186Sri Lanka Law Reports[2008] 1 Sri L.R
made absolute … such decree shall on the expiration of suchtime be made absolute" (emphasis added).
The benefit of the above provision is available to either party ina divorce case. No restrictions have been imposed that it is theparty in favour of whom divorce is granted that could resort to thisprovision. On an application made by either party whether it is theinnocent or the guilty party, court should enter the decree absolute.(8. Kaiuarachchi v Nilmini Wijewickrama and another^')).
The appeal is with regard to the payment of alimony and not thedissolution of the marriage. The question is as to whether or not themarriage should be dissolved is no longer in issue. The learnedCounsel appearing for the defendant submitted that the divorcedecree is inter-connected with the matters pending in appeal,namely, the claim in respect of alimony. He further submitted thatthe plaintiff could not have moved to have the decree nisi madeabsolute for the reason that the divorce was granted in favour of thedefendant.
Senanayake, J. (with S.N. Silva, J. (as he then was) agreeing)in B. Kaiuarachchi v N. Wijewickrama (supra) at page 267 statedthus that "the chapter under matrimonial actions contemplated themaking of subsidiary orders relating to permanent alimony, custodyof the children and other settlements in terms of the provisions ofsection 615 of the Civil Procedure Code. These orders as stated insection 615 (2) can be discharged, modified, temporarilysuspended and revived or enhanced. These orders could be variedat any time and it was not a part of the decree nisi."
Permanent alimony order or any sum ordered for themaintenance of a child or an order for the custody of a child couldbe varied at any subsequent stage as the circumstances of theparties change. If a party who is given the custody of a childsubsequently leads the life of a common prostitute the Courts couldvary its own order… These orders are not entered as a part of thedecree nisi (emphasis added). Senanayake, J. held (at page 267)"That there is no residuary discretion vested in the Court to declineit if any party moves to have the decree nisi made absolute".
Therefore I am of the view that the learned District Judge erredin refusing to make the decree nisi absolute. I set aside the order
QAJayawardane v Priyashanie187
(Eric Basnayake, J.)
of the learned District Judge and direct the Court to enter decreeabsolute. This application is allowed. In the circumstances I makeno order with regard to costs.
WIMALACHANDRA, J.- I agree.
Application allowed.
District Court directed to make the decree nisi absolute.