009-SLLR-SLLR-2007-V-2-MENDIS-v.-MENDIS.pdf

CA
Mendis v Mendis
79
MENDISv
MENDISCOURT OF APPEALWIMALACHANDRA, J.
BASNAYAKE, J.
CALA 190/2003DC HOMAGAMA 5758/DOCTOBER 22, 2004NOVEMBER 11,2004
Civil Procedure Code – section 93(2), section 603 – Amendment of pleadings- Cause of action based on adultery – Could it be allowed. – Has a trial Judgein a matrimonial action a wider discretion than he has under section 93(2)?
The plaintiff-respondent instituted divorce action against the defendant-petitioner on the ground of malicious desertion. The defendant-petitionerprayed for a dismissal of the action and averred that the plaintiff deserted thedefendant maliciously and premeditatedly to be able to carry on her intimacywith 'X‘ (party sought to be added). After the plaintiff's evidence was taken, thedefendant-petitioner moved to amend the answer by adding X – this wasdisallowed by the District Judge.
It was contended by the defendant-petitioner that he had no knowledge ofsexual intercourse between the plaintiff and X at the time of filing the answer.
Held:
The defendant did not seek a divorce in the answer, he only prayed fordismissal of the plaintiff's action. This would have been the reason for
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not making X a party. It was due to the same reason the defendantintentionally avoided making an allegation of adultery against theplaintiff.
The averments in the answer lead to one conclusion that is. the plaintiffwas having an adulterous relationship with X.
The defendant knew about the adulterous conduct of the plaintiff withX-at the time of filing of answer.
Held further
Per Eric Basnayake. J.
"Section 93 is in relation to amendment of pleadings. This solitary section isdealt with under Cap XV of the Code. I am of the view that this section isapplicable to the procedure involving all the sections of the Code. Section 603makes provision to grant any husband or wife the same relief in the sameaction. This section enables Court to allow the defendant to proceed with herclaim in reconvention for divorce — section 603 does not relate to amendmentof pleadings*.
The question whether an action filed by the wife of X alleging adulterycommitted between the plaintiff and X – the mere fact that an action isfiled on the basis of adultery will have no evidentiary value andtherefore would be shut out.
APPLICATION for leave to appeal with leave being granted.
Cases referred to:
Ebert v Ebert 22 NLR 310 at 312.
Allen v Allen and Bell 1894 1R CA 248 at 251-252.
Luhi Balakumarv Balasingham Bata Kumar — BASL 1997 Vol 11 Part 1-
22.
Nihal Ignatious Perera v Ajantha Perera nee Seneviratne 1991 iSriLR331.
Bednarz v Bednarz – 2992 1 Sri LR 11.
Kuruppuaratchiv Andreas 1996 – 2 ri LR 11.
A.R. Surendran, PC with K.V.S. Gawsharaja for defendant-petitioner.
Ranjan Suwadaratna with Asha Ratnayake and Mahinda Nanayakkara forplaintiff-respondent
Cur.adv.vutt.
CA
Mendis v Mendis
(Eric Basnavake. J.)
81
March 5r 2007
ERIC BASNAYAKE, J.
This is a leave to appeal application filed by the defendant-petitioner (Hereinafter referred to as the defendant) on 9.6.2003seeking to have the order of the learned District Judge ofHomagama dated 21.5.2003 set aside. By this order the DistrictJudge had rejected the amended answer Having considered thesubmissions of the Counsel, Amaratunga, J. on 17.6.2004 grantedleave to appeal on the following questions namefy:
Whether the learned trial Judge's conclusion that, in view ofthe averments set out in the defendant's answer regardingthe plaintiffs intimate relationship with the co-respondentsought to be added, the defendant had knowledge about theadulterous relationship between the plaintiff and the co-respondent sought to be added, was a correct conclusion tobe drawn from the averments?
In view of the provisions of section 603 of the CivilProcedure Code, whether a trial Judge has in a matrimonialaction, a wider discretion than he has under section 93(2)with regard to the amendment of pleadings?
Whether the mere fact that in another action filed by the wifeof the co-respondent, sought to be added to this action, hadalleged adultery between the plaintiff-respondent to thisaction and the co-respondent sought to be added to thisaction, is sufficient to raise an allegation of adultery in thisaction against the plaintiff-respondent and the co-respondent sought to be added?
The first question
The plaintiff-respondent (hereinafter referred to as the plaintiff)was married to the defendant in 1983. On 30.11.2000 the plaintiffhad left the matrimonial house. On 15.6.2001 she had filed thisdivorce action against the defendant on the ground of constructivemalicious desertion. The defendant filed answer on 30.10.2001praying for a dismissal. In the answer filed, the defendantspecifically averred (paragraph 11) that the plaintiff deserted thedefendant maliciously and premeditatedly to be able to carry on herintimacy with X (the party sought to be added as co-respondent). In
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paragraphs 10$, d, c. c* & 6 he had given vast information withregard to an affair the plaintiff was having with X. Some of thatinformation is as below:
“He becomes more intimate with the plaintiff. The plaintiff wasbeing given lifts to office by X in a clandestine manner…. A deeperintimacy developed between the plaintiff and X which turned in toinfatuation and the plaintiff became neglectful of her maritalobligations … When she was confronted she admitted it… Thedefendant questioned X who first denied and later admitted andapologized and promised not to repeat such conduct… X's wife on21.1.2000 publicly reproved the plaintiff for "hanging on" to herhusband. The flame of intimacy between the plaintiff and X becamemore intense and did not abate but grew in to a strongerconflagration resulting in the plaintiff coming late home in the nightand allegedly leaving for work on public holidays and leaving homemore frequently without informing the defendant…"
The trial was first fixed for 20.2.2002 on which date the issueswere framed. The plaintiff’s evidence was taken on 12.6.2002. On2.1.2003 the defendant moved to amend the answer. The plaintiffobjected and after inquiry the learned District Judge made orderdisallowing the amended answer which is the subject matter of thisapplication.
Submission of the Counsel for the defendant
The learned President's Counsel submitted that the informationgiven in the answer was short of sexual intercourse between theparties. He contended that the defendant had no knowledge ofsexual intercourse between the plaintiff and X at the time of filingthe answer.
In the case of Ebert v Ebert*) at 312 Schneider, J. quotesLopes, J. in the case of Allen v Allen and Belt2) at 251 -252.
"It is not necessary to prove the direct fact of adultery, nor isit necessary to prove a fact of adultery in time and place,because to use the words of Sir William Scott in Loveden vLoveden if it were otherwise, there is not one case in ahundred in which that proof would be attainable; it is veryrarely indeed that the parties are surprised in the direct fact
CA
Mendis v Mendis
(Eric Basnayake, J.)
83
of adultery. In every case almost the fact is inferred fromcircumstances which lead to it by fair inference as anecessary conclusion; and unless this were the case, andunless this were so held, no protection whatever could begiven to marital rights". To lay down any general rule, toattempt to define what circumstances would be sufficientand what insufficient upon which to infer the fact of adulteryis impossible. Each case must depend on its own particularcircumstances. It would be impractical to enumerate theinfinite variety of circumstances. It would be impractical toenumerate the infinite variety of circumstantial evidentiaryfacts, which of necessity are as various as the modificationsand combinations of events in actual life. A jury In a case likethe present ought to exercise their judgment with caution,applying their knowledge of the world and of human natureto all the circumstances relied on in proof of adultery, andthen determine whether those circumstances are capable ofany other reasonable solution than that of guilt of the partysought to be implicated.
The defendant in paragraph 5 of the petition states thus "further,for the sake of the child the defendant petitioner did not seekdivorce on the basis of malicious desertion either on the part of theplaintiff respondent". The defendant did not seek a divorce in theanswer filed. He only prayed for a dismissal of the plaintiffs action.This would have been the reason for not making X a party. It wasdue to the same reason the defendant intentionally avoided makingan allegation of adultery against the plaintiff. The averments in theanswer lead to one conclusion, that is that the plaintiff was havingan adulterous relationship with X. I am of the view the learnedDistrict Judge rightly concluded that the defendant at the time offiling the answer knew about the adulterous conduct of the plaintiffwith X. The question is therefore answered in the affirmative.
The second question
Section 603 of the Civil Procedure Code is as follows:
"In any action instituted for dissolution of marriage, if thedefendant opposes the relief sought on any ground whichwould have enabled him or her to sue as plaintiff for such
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dissolution, the Court may in such action give to thedefendant on his or her application the same relief towhich he or she would have been entitled in case he orshe had presented a plaint seeking such relief.11
The learned President's Counsel placed reliance on thejudgment in Lulu Bafakumar v Batasingham BalakumarQ) withregard to the interpretation of section 603 of the Civil ProcedureCode. The headnote to this case reads as follows: “section 603 ofthe Civil Procedure Code gives the trial Judge in a matrimonialaction a wider discretion than he has under section 93(2) of theCode". This headnote I find is misleading. There is no suchdecision arrived at in this case. The question for decision waswhether the defendant in that case was guilty of laches. Fernando,J. held that "In this case there was a delay of four months, which inthe context of Sri Lanka is by no means unusual althoughundesirable and not to be encouraged …. The need for amendmentarose unexpectedly …. It was not unreasonable for the defendantto have been content to obtain a dismissal of the plaintiff's action,in order later to pursue his claim against his wife and the allegedadulterer in the Gampola action". Fernando, J. thereafterreproduced another submission of the Counsel as follows:
“Learned Counsel for the defendant also drew our attention tosection 603, the effect of which is that, since the defendanthad opposed the relief sought by the plaintiff on the ground ofadultery, the Court had the discretion to give the defendant, onhis application the same relief to which he would have beenentitled if he had presented a plaint seeking relief on theground of adultery. He submitted that in exercising thatdiscretion the Court would be justified in permitting appropriateamendments to the answer, and that section 603 did notrestrict the stage at which this discretion could be exercised;section 603 thus gave the trial Judge a wider discretion thanhe had under section 93(2).
Fernando, J. having summarised the submission of theCounsel stated thus "taking all those matters in toconsideration I am of the view that the defendant was notguilty of laches…
CA
Mendis v Mendis
(Eric Basnavake. J.)
85
. Section 93 is relating to the amendments of pleadings. Thissolitary section is dealt with under chapter XV of the CivilProcedure Code. I am of the view that this section is applicable tothe procedure involving all the sections of the Code. Section 603make provision to grant any husband or wife the same relief in thesame action. This section enables court to allow the defendant toproceed with her claim in reconvention for divorce {Nihat IgnatiousPerera v Ajantha Perera nee SeneviratndA)). Although a defendanthad in his answer referred to it as a claim in reconvention, in facthe was counter suing for divorce as provided for by section 603 ofthe Civil Procedure Code (Becfnarzv BednarA5)). Thus this sectiondoes not relate to amendment of pleadings. The question isanswered in the negative.
The third question
The question is whether an action filed by the wife of X allegingadultery committed between the plaintiff and X is sufficient to raisean allegation of adultery in this case? The learned Counsel forplaintiff submitted that the action referred to is concluded. Howeverjudgment had not been entered on the ground of adultery. If thelearned Counsel for the defendant is seeking to bring someevidence, he may have to bring that evidence in terms of theprovisions of the Evidence Ordinance. The mere fact that an actionis filed on the basis of adultery will have no evidentiary value andtherefore would be shut out. The answer to this question is in thenegative.
The facts in Kuruppuarachchi v Andreas*® are almost identicalto the present case. G.P.S. de Silva, C.J. with Kulatunga, J. andRamanathan, J. agreeing held that at 13 "The amendmentintroduced by Act No. 9 of 1991 was clearly intended to prevent theundue postponement of trial by placing a significant restriction onthe power of the court to permit amendment of pleadings on or afterthe day first fixed for the trial of the action … the defendant was wellaware of the fact that the plaintiff was living in adultery at the timethe answer was filed, but she has chosen not to rely on that groundin her answer. After the second date of trial, she is seeking toamend the answer by including a cause of action based onadultery. In these circumstances, the conclusion of the Court of
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Appeal, that the defendant is guilty of laches and that the amendedanswer has to be rejected in terms of section 93(2) (as amended)must be affirmed".
This application is therefore dismissed. On the facts I award nocosts.
WIMALACHANDRA, J. – I agree.
Appeal dismissed.