M. D. I. WIJESINGHE, Petitioner and ASLIN NONA, Respondent

014-NLR-NLR-V-80-M.-D.-I.-WIJESINGHE-Petitioner-and-ASLIN-NONA-Respondent.pdf


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PATHIRANA, J.— Mohideen v. Assistant Commissioner of
Co-operative Development, Kalmunai
213
1977 Present: Rajaratnam, J., Sharvananda, J. and Wanasundera, J.M. D. I. WIJESINGHE, Petitioner and ASLIN NONA, Respondent.S.C. 467/70 (F) — D.C. Kalutara 897
Matrimonial actions – Divorce – Res judicata – Civil Procedure Code Sections 33, 34 and 207- Do estoppels bind the Divorce Court? – Civil Procedure Code Sections 600, 601 and602 – Mandatory provisions.
Plaintiff filed action for dissolution of his marriage with the defendant, on the groundthat defendant had since his separation in early 1965 committed adultery with personsunknown to the plaintiff.
Plaintiff called no oral evidence in support of his allegation of the defendant’s adulterybut marked in evidence the plaint, answer, replication, issues and answer to issues, judgmentand decree in action No. D/666 of the same Court.
Defendant on the other hand denied the allegation of the plaintiff and stated that actionNo. D/666 was filed by the plaintiff for a dissolution of his marriage with the defendant onthe ground only of malicious desertion on the part of the defendant and it was dismissed.
Plaintiff had in earlier action D/666 although he denied paternity of the child SarathWijesinghe omitted to make any charge of adultery but only pleaded malicious desertion.After trial, the action was dismissed but the Judge held that Sarath Wijesinghe could not bethe child of the plaintiff.
The District Judge in the present case under appeal held that the dismissal of theplaintiff’s action in D/666 did not operate to bar the plaintiff from maintaining the presentaction as adultery and malicious desertion gave rise to two separate causes of action whichare different and distinct.
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HELD:
that this view is erroneous and untenable.
that the cause of action in an action for divorce is the misconduct of the offendingspouse. Adultery and malicious desertion are species of that misconduct and aregrounds for divorce.
with regard to res judicata-
HELD:
In terms of sections 33 and 34 of the Civil Procedure Code, the plaintiff is boundto include all the grounds of his causes of action that are available to him in oneaction. It is not open to him to split the grounds and institute different actions. Aparty who has failed in one action cannot afterwards set up the same claim inanother action against the same opponent and support it on grounds which mighthave been put forward in the first action (see section 207).
The subject of complaint in the present action is the very same adultery whichloomed in the earlier case. Plaintiff is estopped from raising such a ground ofclaim in the present proceeding.
The finding in an earlier action on the issue of paternity of the child SarathWijesinghe is not res judicata between the parties and the defendant is notestopped from raising the issue again in this case. An adverse finding against thesuccessful party cannot operate as res judicata in a subsequent action between theparties.
The scope of the plea of estoppel has only a limited application in divorcejurisdiction.
A Petitioner in Divorce proceedings whose claim for relief is based on thecommission of a matrimonial offence by the respondent cannot require the Courtto decide the issue in his favour on the ground that the respondent is estoppedfrom denying the charge by the finding in his favour in an earlier action.
Per Sharvananda, J. “It is because of the statutory obligation of a court inmatrimonial proceedings to satisfy itself of the plaintiff’s case that it has beensaid that estoppels do not bind the divorce court.”
The Trial Judge’s finding, that the decision in the earlier case D/666 regarding thepaternity of the child Sarath Wijesinghe was wrong, is upheld.
.^^.ppeal from a judgment of the District Court of Kalutara.
H. W. Jayewardene with Gamini Dissanayake and Miss P. Seneviratne forplaintiff-appellant.
W. Athulathmudali with A. J. /. Tillakawardene for defendant-respondent.
Cur. adv. vult.
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SHARVANANDA, J. — Wijesinghe v. Aslin Nona
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May 18, 1977. Sharvananda, J. —
This is an appeal by the plaintiff-appellant from the judgment of theDistrict Judge, Kalutara, dismissing his action for divorce.
The plaintiff filed this action for a dissolution of his marriage with thedefendant on the ground that the latter had, since his separation in early1965, committed adultery with persons unknown to the plaintiff.
The defendant filed answer denying the plaintiff’s allegation and prayedfor the dismissal of the action.
The plaintiff called no oral evidence in support of his allegation of thedefendant’s adultery, but, marked in evidence the plaint, answer, replication,issues and answer to issues, judgment and decree in action D/666 of the sameCourt (documents P1A to PG).
The plaintiff pleaded that the fourth child of the defendant, SarathWijesinghe, had been begotten in adultery by the defendant. The question ofpaternity of this child was put in issue in action D/666 and was answered infavour of the plaintiff; the Court held that the plaintiff was not the father ofthe child. It has been urged by the plaintiff that a finding of adultery on thepart of the defendant was implicit in this finding in action D/666 and that thisfinding operated as res judicata against the defendant.
The defendant, on the other hand, denied the allegation of the plaintiff andstated that action D/666 was filed by the plaintiff for a dissolution of hismarriage with the defendant on the ground only of malicious desertion on thepart of the defendant and that, after trial, it was dismissed. She pleaded thatthe judgment and decree in the said case D/666 operated as res judicatabetween the parties not only on the issue of malicious desertion which wasraised and decided, but also on the issue of adultery which might, and oughtto have been raised, but was not raised deliberately or otherwise.
In action D/666, instituted on 3.10.66, the plaintiff sued the defendant fora divorce on the ground of constructive malicious desertion. By his amendedplaint dated 28.2.67, the plaintiff stated that there were three children by themarriage; he claimed the custody of those three children. By her answerdated 16.3.67, the defendant denied the plaintiff’s allegation of constructivemalicious desertion and prayed that the plaintiff’s action be dismissed. In heranswer, she disclosed that in addition to the three children mentioned by theplaintiff, there was a fourth child called Sarath Wijesinghe born on 23.9.66by the marriage with the plaintiff. By his replication dated 13.5.67, the
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plaintiff stated that he had nothing to do with the defendant since he left inDecember, 1964, and denied the paternity of the child Sarath Wijesinghe.The plaintiff, however, omitted to make any charge of adultery against thedefendant, and at the trial raised no issue of adultery, though that issuestemmed from the plaintiff’s denial of his paternity of the fourth child andhis prayer for divorce could have been grounded on the defendant’s adultery.The case proceeded to trial on the main issue as to whether the defendantwas guilty of constructive malicious desertion. The defendant, having in heranswer prayed for the custody of her four children, including her last child,her Counsel raised the following issues:-—
Issue 8: Is the plaintiff the father of the child Sarath Wijesinghe?
Issue 9: Is the defendant entitled to the custody of the four children?
After trial, the District Judge answered the issue relating to thedefendant’s malicious desertion in the negative and dismissed the plaintiff’saction with half costs. In the course of his judgment, he stated that the childSarath Wijesinghe could not be the child of the plaintiff and answered issue 8in the negative. There was no appeal to the Supreme Court by either partyfrom that judgment.
In this action, both parties have relied on the issue of res judicata. Theplaintiff raised, inter alia, the following issues:—
Issue 3: Are the plaint, answer, replication, judgment and decree in thesaid case No. D/666 res judicata between the parties in thisaction as regards the legitimacy of the child Sarath Wijesinghe?
Issue 4 If so, did the defendant have adulterous relations with personsunknown to the plaintiff?
Issue 5: If so, is the plaintiff entitled to a decree for divorce on the groundof adultery and for the relief claimed in the plaint?
Counsel for the defendant, in turn, raised the following issues:—
Issue 6: Are the pleadings, answer, replication, judgment and decree incase No. D/666 res judicata between the parties to this action?
Issue 7: If so, can the plaintiff have and maintain this action?
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SHARVANANDA, J.— Wijesinghe u Aslin Nona
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The District Judge answered issue 6 in the negative and held that thedismissal of action D/666 did not preclude the plaintiff from bringing thepresent action to have his marriage dissolved on the ground of the veryadultery which resulted in the conception of the fourth child SarathWijesinghe. It is to be noted that the plaintiff is not relying in this action onany act of adultery subsequent to the conception of the said child SarathWijesinghe. In the Trial Judge’s view, “the cause of action relied upon by theplaintiff in this action as a ground for divorce, viz. adultery, is a distinct andseparate cause of action from the ground relied upon by the plaintiff for thedissolution of his marriage in action D/666 where the plaintiff sought to havethe marriage dissolved on the ground of malicious desertion on the part ofthe defendant.” He concluded that the dismissal of the plaintiff’s action inD/666 did not operate to bar the plaintiff from maintaining the present actionas, in his view, adultery and malicious desertion gave rise to two separatecauses of action which are different and distinct. This view is erroneous and
not tenable in law.
v>
The cause of action in an action for divorce is the misconduct of theoffending spouse. Adultery and malicious desertion are species of thatmisconduct and are grounds for divorce. They are breaches of thefundamental obligations flowing from the marriage contract. By our law,spouses are bound to observe perfect conjugal fidelity towards each otherand to live together affording to each other the marital privileges. Anyvoluntary breach of these duties constitutes the guilt on the part of theoffending spouse which entitles the other spouse to a divorce vinculomatrimonii Thus, the cause of action for divorce may be based on theground of adultery or malicious desertion, or of both. These groundsrepresent two different facets of the misconduct which forms the foundationof that cause of action.
In terms of sections 33 and 34 of the Civil Procedure Code, the plaintiff isbound to include all the grounds of his cause of action, that are available tohim, in one action; it is not open to him to split the grounds and institutedifferent actions, even though each ground may by itself be sufficient tosupport the cause of action for divorce. If the ground of adultery exists, at thetime of the action for divorce on the ground of malicious desertion, and theplaintiff is aware of its existence, the plaintiff is bound to rely on bothgrounds in his action, as both give rise to one and the same cause of actionentitling the plaintiff to have the marriage dissolved. In action D/666, theplaintiff claimed a divorce on the ground of malicious desertion. In thepresent action, he claims the same relief but bases it on the ground ofadultery. The allegations in the present plaint show that he could haveframed the earlier action on both grounds. The adultery complained of in the
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present action was the adultery that resulted in the conception of the fourthchild who was disowned by the plaintiff in the earlier action. The defendant’sobjection is that, in the circumstances, the plaintiff should have based hisclaim for divorce in action D/666 on the ground of such adultery also and,having failed to do so, he is now barred from bringing a second action fordivorce founded on the very same act of adultery.
Section 33 of the Civil Procedure Code provides that every regular actionshall, as far as practicable, be framed so as to afford ground for final decisionupon the subjects in dispute and so as to prevent further litigation concerningthem. The object of this rule is that all matters in dispute between the partiesrelating to the same subject should, as far as possible, be disposed of in thesame suit. This rule requires the plaintiff to state his whole case as to theparticular legal relation or transaction on which the action is based. Section34 further provides that every action shall include the whole of the claimwhich the plaintiff is entitled to make in respect of the cause of action. Thisprovision gives expression to the principle that the defendant should not betwice vexed for one and the same cause. It is directed against the evils ofsplitting of claims and of remedies. The object of this salutary rule isdoubtless to prevent multiplicity of suits. The section, however, does notrequire that the plaintiff should unite in the same action all the causes ofaction he may have against the defendant. So, it does not operate as a barwhen the subsequent suit is based on a cause of action different from that onwhich the earlier suit was based. The Explanation to section 207 iscomplementary to the provisions of sections 33 and 34 of the Code. It readsas follows:—
“Every right of property, or to money, or to damages, or to relief of anykind which can be claimed, set up, or put in issue between the parties toan action upon the cause of action for which the action is brought,whether it be actually so claimed, set up, or put in issue in the action,becomes, on the passing of final decree in the action, a res judicata whichcannot, afterwards, be made the subject of action for the same causebetween the same parties.”
The penalty for non-compliance with sections 33 and 34 is provided bythe Explanation to section 207. A party who has failed in one action cannotafterwards set up the same claim in another action against the same opponentand support it on grounds which might have been put forward in the firstaction. A party is bound to bring forward the whole case in respect of thematter in litigation which is open to him upon the points for decision in thatsuit. The object of the Explanation is to compel the parties to rely upon all
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the grounds of attack or defence which are open to them. The rule of resjudicata enshrined in section 207 applies not only to points on which theCourt was actually required by the parties to pronounce judgment, but also toevery point which properly belonged to the subject of litigation and whichthe parties, exercising reasonable diligence, might have brought forward atthat time. All matters in controversy between the parties relating to thesubject-matter of the suit must be brought before a Court of Law once andfor all and should not be left to be adjudicated over and over again. Thus, ifthe plaintiff has several grounds on which he can make his claim, he shouldput forward all the grounds on which he can make his claim; he will bebarred from bringing a second suit based on any ground which was open tohim but omitted by him in the former action. ‘The rule of res judicata is notconfined to issues which the Court is actually asked to decide, but it coversissues or facts which are so clearly part of the subject-matter of the litigationand so clearly could have been raised that it would be an abuse of the processof the Court to allow a new proceeding to be started in respect of them.” —per Somerville, L. J. in Greenhalgh v. Mallard.' The locus classicus of thisprinciple of res judicata is the judgment of Wigram, V.C. in Henderson v.Henderson 2 where he says:
“Where a given matter becomes the subject of litigation in and ofadjudication by a Court of competent jurisdiction, the Court requires theparties to that litigation to bring forward their whole case and will not(except under special circumstances) permit the same parties to open thesame subject of litigation in respect of a matter which might have beenbrought forward as part of the subject in contest, but which was not broughtforward, only because they have, from negligence, inadvertence, or evenaccident omitted part of their case. The plea of res judicata applies, exceptin special cases, not only to points upon which the Court was actuallyrequired by the parties to form an opinion and pronounce a judgment, but toevery point which properly belonged to the subject of litigation, and whichthe parties, exercising reasonable diligence, might have brought forward atthe time.”
This statement of the law has been cited with approval by the PrivyCouncil in Hoystead v. Commissioner of Taxation3 and in Yat TungInvestment Ltd., v. Dao Heng Bank Ltd*
In his replication filed in action D/666, the plaintiff denied paternity of thefourth child Sarath Wijesinghe. This denial necessarily involved the assertionthat the child was conceived in adultery. Though there was the specific issueas to whether the plaintiff was the father of this child, the plaintiff, however,
'(1947) 2 All E.R. 255 at 257.>(1926) A.C. 155.
1 (1843) 3 Hare 114.‘(1957) A.C. 581.
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omitted, through his negligence or inadvertence, to raise the issue of thedefendant’s adultery. The subject of complaint in the present action is thevery same adultery which loomed in the earlier case. That adultery veryproperly belonged to the subject-matter of the earlier litigation. The plaintiff,exercising reasonable diligence, might, and ought to have brought it forwardin the earlier action. On the principles of res judicata enunciated above, theplaintiff is estopped from raising such a ground of claim in the presentproceeding. The decision in the earlier case, though it contains nodetermination to that effect, is deemed to carry with it an adverse decision onthe issue of adultery, just as much as if it had been expressly raised by theplaintiff and expressly decided against him. Issues 6 and 7 should thus havebeen decided against the plaintiff and in the defendant’s favour.
As regards the plaintiff’s plea of res judicata, Counsel for the plaintiff-appellant contended that paternity of the last child was put in issue in theearlier action and since it was held that the plaintiff was not the father of thatchild, the defendant is bound by that finding and is estopped, by res judicata,from reagitating that issue of paternity in this action. Counsel submitted thatthe defendant should have appealed against that finding, but having failed todo so, she is estopped from questioning the correctness of that finding.According to him, on that finding the defendant’s adultery is established andthe plaintiff is entitled, in this action, to a decree for divorce.
It is to be borne in mind that in spite of that finding, the plaintiff’s actionD/666 was dismissed. Since the ultimate judgment was thus in thedefendant’s favour, the defendant could not have appealed from thejudgment, for, ultimately, no adverse decision had been given against her. Aparty has a right of appeal only against the judgment or decree in an action,but not against the reasons for that decision. Since the judgment and decreein that action directed the dismissal of the plaintiff’s action, there wasnothing of which the defendant could have complained in the judgment anddecree and hence had nothing against which she could have appealed. (SeeLake v. Lake).1 A party would not be bound by a ruling from which he couldnot appeal. As stated by Lord Denning in Penn-Texas Corporation v. MuratAnstalt.6
“A previous judgment between the same parties is only conclusive onmatters which were essential and necessary to the decision. It is notconclusive on other matters which came incidentally into consideration inthe course of reasoning. One of the tests in asking whether a matter wasnecessary to a decision or only incidental to it is to ask: could the party
1 (1955) 2 All E.R. 538.
‘(1964 ) 2 All E.R. 594 ai 597.
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have appealed from it? If he could have appealed and did not, he is boundby it. (See Badarbee v. Habeeb Marikkar Noordeen)’ — per Lord MacNaghten. If he could not have appealed from it (because it did not affectthe order made), then it is only an incidental matter not essential to thedecision and he is not bound. (See Concha v. Concha)8 — per LordHerschell.”
The finding in the earlier action on the issue of paternity of the last childSarath Wijesinghe is not therefore res judicata between the parties and thedefendant is not estopped. As that finding was not necessary to the ultimatedecision of the Court, it is not deemed a part of the decision in that case orinvolved therein. (See also Zaneek v. Ahamed).9 The decree dismissing theplaintiff’s action was based not upon the finding adverse to the defendant,but in spite of it. An adverse finding against the successful party cannotoperate as res judicata in a subsequent action between the parties. It has beenstated that “any issue decided by a Court in favour of the plaintiff whose suitis ultimately dismissed on another ground cannot operate as res judicata asagainst the defendant in a subsequent action. A finding cannot be conclusiveagajnst a party if the decree was not based upon it, but was made in spite ofit.” — Paratnath Rameswar'0 followed in Roweena Umma v. RahumaUmma."
In the present proceeding, the plaintiff relied only on the issue of resjudicata in support of .his allegation of the defendant’s adultery. He markedthe pleadings, issues, answer to issues, and judgment and decree in actionD/666 and did not lead any other evidence to substantiate his allegation. Indoing so, he has misconceived the scope of the plea of estoppel inmatrimonial proceedings. The doctrine has only a limited application indivorce jurisdiction. The provisions of sections 600, 601 and 602 of the CivilProcedure Code define the jurisdiction of the Court to grant a divorce. Theseprovisions are mandatory and provide that “the Court shall satisfy itself’that the plaintiff’s case is proved before it pronounces a decree.for divorce.The relief is made dependent on the Court being satisfied, on the evidence,that the petitioner’s case has been proved as a fact and not merely provedinter partes. A petitioner in a divorce action cannot obtain relief simplybecause the defendant is estopped from denying the charges; for, in terms ofthe aforesaid sections, the Court has a statutory duty to inquire into the truthof the plaintiff’s allegation and be satisfied that a matrimonial offence has
"(1886) 11 A.C. 541 at 225.
10 (1938) A.I.R (Allahab) 491.
’(1909) A.C 615 at 625* 80 C.L.W. 109.
" (1946)41 N.L.R. 522 at 524
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been committed notwithstanding any estoppel binding the parties. The earlierjudgment relied upon by the petitioner is therefore not conclusive of theoffence charged. Where there is a statutory direction, it cannot becircumvented by a previous judgment between the parties. The ordinaryrules of estoppel per rem judicatum thus apply to matrimonial actions subjectto the qualification that it is the statutory duty of the Court to inquire, so faras it reasonably can, into the facts alleged by the plaintiff and the defendant,and no doctrine of res judicata can abrogate that duty. As was stated by LordMerriman in Hudson v. Hudson'1
“The doctrine of estoppel will not operate so as to abrogate the
statutory duty of the Court to inquire into the truth of a petition which is
properly brought before it.”
Hence, a petitioner in divorce proceedings whose claim for relief is basedon the commission of a matrimonial offence by the respondent cannotrequire the Court to decide the issue in his favour on the ground that therespondent is estopped from denying the charge by the finding in his favourin an earlier action. The Court is not bound to be satisfied of the commissionof the offence because the respondent is estopped as against the petitionerfrom denying it. Hence, the production of the Issues, answer to the issues andjudgment in action D/666 P(d), P(e) and P(f) is not, as a matter of law,suffipient to obligate the Court to treat as proved that the defendant had beenguilty of adultery.
A distinction has however to be drawn between estoppel as against a partycharged with an offence and estoppel as against a party putting forward acharge as dissolvent of the marriage. It is one thing to say that the defendantis not estopped from denying the charges made by the plaintiff, i.e. that theplaintiff in this case cannot obtain relief simply because the defendant isestopped from denying the charges. In that case, the public interest, no doubt,does intervene to see that relief is not improperly obtained by the plaintiffmerely through some technical rule. But it is quite another thing to say thatthe plaintiff, who is the party bringing the charges, is entitled to persist inrepeating the allegations which have already been decided against him, orhave already been deemed to have been determined against him in previousproceedings and to do this is merely for the purpose of obtaining relief forhimself. In such circumstances, no interest of the public is infringed bysaying that the plaintiff is estopped per rem judicatum from repeating theallegations that have previously been made or deemed the subject of judicialdetermination. In such a case, the doctrine of estoppel applies with full force.(See (1953) 2 A.E.R. 939). This distinction is found in the imperativelanguage of the provisions of the Civil Procedure Code which require the 11
11 (1948) 1 All E.R. 773 m 775.
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Court to be satisfied with the proof of the allegations of the petitioner beforematrimonial relief is granted. Lord Merriman, in Hudson v. Hudson, referredto the distinction between a judgment dismissing the cause of complaint anda judgment finding that the cause of complaint is proved.
It is because of the statutory obligation of a Court in matrimonialproceedings to satisfy itself of the truth of the plaintiff’s case that it has beensaid that estoppel does not bind the divorce Court. This topic is developed inthe judgment of Denning, L.J. in Thompson v. Thompson13 as follows:
i
“The question in this case is whether those ordinary principles (ofestoppel by res judicata) do apply to the Divorce Division: The answer is, Ithink, that they do apply, but subject to the important qualification that it isthe statutory duty of the Divorce Court to inquire into the truth of a petitionand of any countercharge which is properly before it, and no doctrine ofestoppel by res judicata can abrogate the duty of the Court. The situation hasbeen neatly summarised by saying that in the Divorce Court “estoppel bindsthe parties but does not bind the Court;” but this is perhaps a little tooabbreviated. The full proposition is that once the issue of a matrimonialoffence has been litigated between the parties and decided by a competentCourt, neither party can claim as of right to reopen the issue and litigate it allover again if the other party objects,(that is what is meant by saying thatestoppels bind the parties): but the Divorce Court has the right, and indeedthe duty, in a proper case to reopen the issue, or to allow either party toreopen it, despite the objection of the other party (that is what is meant bysaying that estoppels do not bind the Court). Whether the Divorce Courtshould reopen the issue depends on the circumstances. If the Court issatisfied that there has already been a full and proper inquiry in the previouslitigation, it will often hold that it is not necessary to hold another inquiry allover again. But, if the Court is not so satisfied, it has a right and a duty toinquire into it afresh. If the Court does decide to reopen the matter, then thereis no longer any estoppel on either party. Each can go into the matter afresh.”
The precise dispute between the parties in the present action, i.e. whetherthe marriage should be dissolved on the ground of the defendant’s adultery,was not adjudicated on in the earlier suit D/666. It is only by a process ofinference that it can be said that there was a confrontation on that question.In the circumstances, the Court is not absolved from its statutory duty tosatisfy itself that the matrimonial offence of adultery has been committedbefore matrimonial relief can be granted to the plaintiff. This Court must besatisfied, on the evidence placed before it, that the defendant is guilty of thematrimonial offence complained of. A divorce Court deals with the status of
• 13 ((1957) 1 All E.R. 161) at 165.
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parties and it is of fundamental importance that its jurisdiction should beexercised in strict conformity with statutory requirements which rest uponprinciples of public policy.
In support of his case, the plaintiff relied only on the issue of res judicata.Even if that issue had been answered in the plaintiff’s favour, such answerwill be insufficient to entitle him to matrimonial relief and hence his actionfails. The defendant has however led evidence and satisfied the Court thatthe finding in the earlier case regarding paternity of the fourth child was awrong finding. According to her, the plaintiff lived with her till 2nd May,1966. On the evidence placed by the defendant, the Court was satisfied thatshe has not committed adultery and that the plaintiff is the father of the childSarath Wijesinghe born on 23.9.66. The Trial Judge has accepted herevidence and we see no reason to disturb that finding.
For the reasons given above, we affirm the conclusion of the Trial Judgeand dismiss the appeal with costs.
Rajaratnam, J. — I agree.Wanasundera, J. — I agree.
Appeal dismissed.