KEERTHIRATNE v. KARUNAWATHIE

139-NLR-NLR-V-39-KEERTHIRATNE-v.-KARUNAWATHIE.pdf


514
POYSER S.P.J.—Keerthiratne v. Karunawathie.
1938
Present: Poyser S.P.J. and Maartensz J.KEERTHIRATNE v. KARUNAWATHIE.
208—D. C. Kegalla, 10,950
Judicial separation—Grounds for decree—Malicious desertion—Roman-LHitchlaw.
In Ceylon a decree for judicial separation may be granted on the groundof malicious desertion.
T
HE plaintiff in this action sued the defendant, his wife, for divorceon the ground of malicious desertion. The defendant denied
desertion and asked for a decree of judicial separation on the ground thatthe plaintiff had deserted, her.
The learned District Judge granted the defendant a decree of separation& mensa et thoro.
Hayley, K.C. (with him C. E. S. Perera and Chelvanayagam), forplaintiff, appellant.—Under the Roman-Dutch lav/, malicious desertionis not. a ground for granting judicial separation. Wright v. Wright'enumerates the various grounds upon which separation a mensa et thorocan be claimed, but no mention is made of desertion. The remarks ofSampayo J. in Orr v. Orr2 are merely obiter. Malicious desertion entitles -the injured party to divorce only, but not to judicial separation.
Plaintiff and his witness were not questioned in cross-examinationregarding the facts deposed to by the chief witness for the defence.Plaintiff’s case must therefore be taken as unchallenged—Phipson’s Lawof Evidence (7th ed.), p. 460; Evidence Ordinance, s. 145 (2).
H. V. Perera, K.C. (with him N. E. Weerasooria and E. A. P. Wijeratne),for defendant, respondent.—On the question whether decree for judicialseparation can be granted for malicious desertion, the point is covered byauthority. Apart from the remarks of Sampayo J. in Orr v. Orr (supra),
Van Zyl’s Judicial Practice, vol. 11. p. 660 mentions various grounds; one ofwhich is wilful neglect of duty. Johnstone v. Johnstone 3 is exactly in point.
February 2, 1938. Poyser S.P.J.—
In this action the plaintiff claimed a divorce a vinculo matrimonii onthe grounds of the malicious desertion of the defendant.
The defendant, in her answer, denied deserting the plaintiff and prayedthat a decree of separation be granted her on the grounds of the plaintiffsmalicious desertion.
The District Judge has accepted the evidence for the defence and foundthat the plaintiff had maliciously deserted the defendant ; he consequentlygranted her a decree of separation a mensa et thoro.
The evidence abundantly supported this finding and it is unnecessaryto refer to it in detail.
It was however argued on behalf of the appellant that the evidence ofMr. A. A. Wickremesinghe, who was called for the defendant, was not
1 9 N.L.R.31.* 22 X.L.R.57.*{1917) A. D. 292.
Cur. adv. vult.
POYSER S.P.J.—Keerthiratne v. Karunawathie.
515
put to either the plaintiff or his father in cross-examination, that theplaintiff was prejudiced thereby, and there consequently should be a 'new trial.
The evidence of this witness, which was accepted in its entirety by theJudge, was to the effect that he knew the parties and tried to effect areconciliation, that the defendant was willing to return to the plaintiffbut that the plaintiff’s father would not permit a reconciliation and inconsequence of his attitude the plaintiff would not allow the defendant toreturn to him and instituted these proceedings.
This evidence was not put in detail to the plaintiff or his father, but itssubstance was, e.g., the father in cross-examination stated he had noobjection to the defendant returning to her husband and the plaintiffstated his father did not ask him to give up his wife.
I do not therefore think the plaintiff was in any way prejudiced by thefact that every detail of Mr. Wickremesinghe’s evidence was not put tohim ; in fact this case seems largely in its early stages to have beencontested on the question of alimony, and I see no reason for ordering afresh trial on this ground.
A further point, and one of some importance, taken by Mr. Hayley wasthat under the Roman-Dutch law only a divorce, not a judicial separationcan be granted for malicious desertion. This point does not seem to havebeen specifically decided in Ceylon. There is the following dictum ofde Sampayo J. in the case of Orr vs. Orr1: It is well known that ajudicial separation may be obtained on the same grounds as divorce”,but this point was not specifically raised in this case and the dictum mayconsequently be regarded as obiter. In the case of Wright v. Wright1Middleton J. discusses at length the grounds on which a separationa mensa et thoro will be granted and he does not mention desertion as oneof the grounds.
On the other hand my brother Maartensz tells me that it has been thepractice in Ceylon for many years past to grant a judicial separation onthe same grounds as divorce and such practice has hitherto not beenquestioned. He also drew my attention to a passage in Volume II ofThomson’s Institutes of the Law of Ceylon, at page 106 : —“ Separationmay be by the Court, or by consent, in certain cases. The former ofthese is called divorce a mensa et thoro, i.e., a judicial separation from bed,board, cohabitation, and goods ; and this separation may be prayed forby the party, even where a divorce a vinculo might have been asked, andthe Court could not, in such case, give more than a judicial separation ;for the suit, in either case, is founded upon the prayer of the party injured,and not actually upon the injury, as if it were a trespass or a penalty.(Van Leeuwen, bk. 1, chap. 15. s. 2, p. 84.) Besides, the law loves to leave adoor ajar for reconciliation, and will prefer to decree judicial separationrather than a divorce a vinculo (V. ~der Linden, 1., 3, s. 9). Judicialseparation may, therefore be decreed for adultery subsequent to marriage,and malicious desertion, and also when for other reasons the continuanceof the cohabitation would become dangerous or "insupportable. So that
1 22 N. L; 8. 57.
*9N. L. R. 31.
516
POYSER SJ.J.—Keerthiratne v. Karunavoathie.
^ judicial separation may be decreed on account of cruelty, or protracteddifferences, or for gross, dangerous, and unsupportable conduct ineither spouse. (V. der Linden I., 3, 9, p. 89; Grot. 1., 5, s. 18-20;
p.26).”
In Walter Pereira’s Lawp. of Ceylon, at page 251 the grounds are set outupon which a separation a mensa et thoro will be granted and maliciousdesertion is .not set out as one of such grounds, but it is not statedthat a separation would be refused when grounds for a divorce weredisclosed.
The point however has been decided in South Africa. In the case ofJohnstone v. Johnstone Y it was held that a decree of judicial separationmay be granted on the grounds of malicious desertion and may be grantedabsolutely without any previous order for restitution of conjugalrights.
The following passages at pages 299 and 300 in the judgment ofSolomon J.A. state the reasons for this finding : —“ That being so, thenext question that arises is whether this is a ground, i.e., maliciousdesertion, for decreeing judicial separation. This point was formallytaken at the hearing of the appeal, but was not seriously argued. Thesame question had been previously raised before the same learned Judgein the case of Tod v. Tod not yet reported, where it was held that by ourlaw malicious desertion entitles the innocent party to obtain an order ofjudicial separation. In his judgment in that case the Roman-Dutchtext-writers were fully reviewed, and it was pointed out that though thereis little direct authority on the subject, that is the inevitable conclusionto be drawn from them. Nor indeed is it surprising that there should bean absence of direct authority. For inasmuch as by our law maliciousdesertion is a ground for divorce, it would seem to follow as a matter ofcourse that it must also be a sufficient cause for judicial separation. Forthe larger remedy of divorce includes separation a mensa et thoro, and ifthe injured party is satisfied to. ask for the smaller remedy it is difficult tosee on what grounds it could possibly be refused. From the nature of thecase it would only be very rarely that, where there has been maliciousdesertion the proceedings should take the form of an action for judicialseparation, and so far as I know, the case of Tod v. Tod is the only directdecision on the point. But on the ground both of authority and of principleI am of opinion that that case was rightly decided and should be followed ”.
As this decision, so far from conflicting with any local decision, is inaccordance with local practice and the passage in Thomson above referredto, I certainly think we should follow it.
The appeal is accordingly dismissed with costs.
Maartensz J.—I agree.
Appeal dismissed.
1 S. A. Law Rep. Appell. Div. 1917. p.‘ 292.