SANS ONI, J.—Canekeratne v. Canekeratne
1961Present: Sansoni, J. and Tambiah, J.
N. J. CANEKERATNE, Appellant, andMRS. R. M. D. CANEKERATNE, Respondent
8. C. 139—D. C. Colombo., 3732jD
Divorce—Consensual separation of spouses—Malicious desertion thereafter—Proof-
Relevancy of conduct of parlies pending action.
A consensual separation between husband and wife can charge its qualityand malicious desertion can supervene if an animus deserendi supervenes.
When either spouse has made an offer to resume cohabitation after a separa-tion has taken place, a rejection of it by the other will turn him or her into adeserter….
Divorce should not be granted while there remains a hope of reconciliation,The conduct of the parties up to and including the time of the trial is relevantto the question of malicious desertion.
-A.PPEAL from a judgment of the District Court, Colombo.
Colvin R. de Silva, with M. L. de Silva, for the Defendant-Appellant*
C. Ranganathan, with S. C. Crosseite-Thambiah and K. llayperuma,for the Plaintiff-Respondent.
Cur. adv. wit.
May 17, 1961. Sansoni, J.—
In this action brought by the wife who claimed a divorce on theground of malicious desertion, the husband counter-claimed a divorceon the same ground. After a lengthy trial, the learned District Judge
SANS ONI, J.—Oaneheratne v. Oaneteeratne
decided in favour of the plaintiff and granted her prayer : he also gaveher the custody of the two children of the marriage. The def ndanthas appealed and we have heard counsel on both sides fully. In viewof the order which we propose to make, we refrain from expressing ouropinions on the questions of fact which are in issue between the parties ;but as we are setting aside the judgment of the learned Judge it isnecessary that we should indicate our reasons for doing so.
The parties were married on 20th December, 1950 and they separatedon 18th December, 1954. On that date the husband, taking the elderchild with him, moved into his parents’ house, leaving his wife and theyounger child in the flat which had' hitherto been their matrimonialhome. This was done in consequence of an arrangement made betweenthe lawyers of the respective parties, and was intended to last only untilthe difficulties which had arisen between them were settled. Thereafterletters passed between the lawyers, in which the grievances of therespective spouses were set out, with a view to effecting a reconciliation.
At an early stage Mrs. C. B. E. Wickremasinghe, who knew both parties,made some efforts to bring about a settlement, but it seems fairly clearthat the parties preferred to deal with the matter either directly witheach other or through their lawyers. The defendant certainly does notappear to have taken kindly to Mrs. Wickremasinghe’s intervention,and even the plaintiff, to judge by the letter P. 50 dated 4th January,
written by her proctor, was not eager to avail herself of this lady’sservices. Anyway, Mrs. Wickremasinghe dropped out of the picturein February, 1955, after forming a definitely uncomplimentary opinionabout the defendant. The learned Judge has laid much stress onMrs. Wickremasinghe’s evidence, and this has in turn led him to form anunfavourable opinion of the defendant. It might have been better ifthe learned Judge had paid less attention to Mrs. Wickremasinghe’sefforts to bring about a settlement.
On the other hand we think that the learned Judge has paid insufficientattention to the letters written by the lawyers. They undoubtedlythrow light on the question as to why a reconciliation was not effected.He has practically ignored them, although a careful perusal of them wouldshow how the points in dispute were being narrowed, and how effortswere made to iron out the differences which had arisen. They seem tous to give a true picture of the negotiations for a settlement, and tocontain a full and accurate record of those negotiations.
After the lawyers desisted from trying to settle this dispute,Mr. I. S. de Saram, at the plaintiff’s request, interviewed the parties inNovember and December, 1955. Since this action was filed in March,
Mr. de Saram’s evidence was clearly of importance ; but it hasnot received adequate attention in the judgment under appeal.
SANS ONI, J.—Oanekeratne v. Canekeratne
Even though the separation which took place on 18th December, 1954was consensual, it can change its quality and malicious desertion cansupervene if an animus deserendi supervened. It is the case of eitherparty that the other entertained such an animus. To decide this questionit was necessary to ascertain who was responsible for the failure of theattempts to bring about a reconciliation. We think that the learnedJudge has failed to give careful consideration to this question.
When considering this question, it should also be remembered that aspouse may offer to resume cohabitation after a separation has takenplace, but it is for the Court to decide whether the offer is genuine. Itis only genuine if there is “ a fixed and settled intention to offer a resump-tion of marital life under reasonable conditions ” ; and it will not be afixed and settled intention if it is a mere “ fluctuating desire to resumecohabitation”. When either spouse has made such an offer, a rejectionof it by the other will turn him or her into a deserter. With thesematters in mind, the learned Judge should have considered carefullywhy the parties are still living apart. The case of both sides mustreceive equal consideration before one or the other spouse is held to bein desertion. We are not satisfied that the learned Judge has paidsufficient attention to these aspects of the law.
In sending this case back,, we also wish to point out that the theoryof our law has always been that “ divorce should never be granted whilethere remains a hope of reconciliation”. While we have not adopted theSouth African procedure which prescribes that there should be a preli-minary order for restitution of conjugal rights failing compliance withwhich only is a decree for divorce granted, or the original practice underwhich two separate and distinct actions had to be brought, it is correctto say that the conduct of the parties up to and including the time of thetrial is.relevant when the Court has to decide who is to blame. Certainlyup to the stage of entering decree nisi it is the duty of each party toprovide a reasonable opportunity for a resumption of married life,and the party who deliberately and unreasonably refuses to accept thatopportunity will be guilty of malicious desertion.
We therefore set aside the judgment of the learned Judge. We regret.that the parties should have to undergo the harassing experience of afresh trial, but we cannot see any other way out of this unfortunatesituation. We make no order as to costs, either of the appeal or of theproceedings in the lower Court.
Tambiah, J.—I agree.
Sent bach for fresh trial.
N. J. CANEKERATNE, Appellant, and MRS. R. M. D. CANEKERATNE, Respondent