It is quite clear from the averments quoted above that theplaintiff had based his cause of action on the malicious desertion ofthe plaintiff motivated by her desire to avoid payment of moneyrequested by the plaintiff from and out of the remittances made tothe defendant from Japan. A glaring omission in the avermentregarding the malicious desertion is the failure on the part of theplaintiff to set out as to exact or probable point of time at which thedefendant (wife) deserted him. However, the plaintiff maintainedthat the defendant is guilty of malicious desertion and thematrimonial bond should no longer be regarded as in existence.
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On the contrary, the defendant took up the position in heranswer that she never deserted the plaintiff. Further answering shemaintained the position that on the 31st January 2002, the plaintiffhaving chased her and the only child of the marriage away, rentedout the matrimonial home to an outsider. The defendant furtheralleged that the plaintiff subsequently sold the house to third party,thus depriving them of the right to have a shelter. Even though theallegation of the defendant tantamount to constructive maliciousdesertion on the part of the plaintiff, she did not seek a counterdivorce. The defendant in her answer only sought a dismissal of theplaintiff's action.
The learned District Judge after trial arrived at the conclusionthat the plaintiff has proved the allegation of malicious desertionand that the version of the defendant is unacceptable. Hence, hegranted a divorce as prayed for in the plaint and legal custody ofthe child to the defendant.
It was strongly urged by the defendant that the learned DistrictJudge has erred in coming to the conclusion that the plaintiff hasproved the charge of malicious desertion levelled against her. Thelearned Counsel of the defendant has drawn the attention of courtto the pleadings of the plaintiff, where he has failed to specify theexact date or period of the alleged malicious desertion.
As far as the plaint is concerned, admittedly the plaintiff has notspecified the date on which he alleges malicious desertion tookplace nor has he explained the reason as to why he cannot give thedate of desertion. The failure of the plaintiff to specify the exact orprobable date of desertion is important in the light of the defenceraised by the defendant, in that she took up the position that shenever deserted her husband.
However, the learned District Judge accepted an issue relatingto malicious desertion totally outside the pleadings, as suggestedby the plaintiff indicating th exact date of desertion. Even thoughthe said issue has not been objected to by the defendant, it iscontended on behalf of the defendant that the learned DistrictJudge has failed to ascertain exactly material proposition of factson which the parties were at variance.
Nitanthie Siriwardane v Krishantha
CA(Abdus Salam, J.)285
Learned Counsel of the defendant has adverted to the decisionof this Court in Pathmawathie v Jayasekara 0>, where it was heldthat though in practice Counsel appearing for the plaintiff ordefendant to suggest the issues, it is the prime responsibility of theJudge to frame issues. It is more so, because it is ultimately theJudge who should make a finding and without clear understandingof the dispute and the issue that he has to determine, it would be amost dangerous exercise to embark upon a voyage of discovery.Since the defendant in this case has, denied the allegation ofmalicious desertion and made a counter allegation specifying theexact date that the plaintiff chased her out of the matrimonial home,the learned District Judge should have been cautious in allowingthe plaintiff to introduce the date of desertion for the first time.
The learned Counsel of the defendant has submitted that inaccepting issue No. 8 the learned District Judge has entertained apurported issue, which is very different to the dispute placed beforecourt for adjudication on the pleadings. By allowing, the plaintiff tointroduce the alleged date of desertion the learned District Judgehas in fact permitted the defendant indirectly to raise an issue,which had the effect of allowing an amendment to the plaint that,was only possible if the plaintiff was not guilty of laches. Even if theplaintiff amended the plaint, yet the defendant would have had theopportunity of replying to it by way of an amended answer.
Let us examine for a moment, as to what really was the maindispute presented for the adjudication, between the parties on thepleadings. According to paragraphs, 9 and 10 of the plaint thedefendant deserted the plaintiff and thereafter came to reside at theresidence of her mother and later in the company of the brothercame back to the house of the plaintiff and threatened him withdeath. The plaintiff has complained of alleged threat to the policeon 11.01.2001. According to the police complaint marked as p22the defendant has deserted the plaintiff on the 4th of January 2002.It is further confirmed by paragraph 10 of the plaint that thedefendant has come to the house of the plaintiff in the company ofher brother on the 11th of January 2001. However, the issue raisedis whether the defendant has deserted the plaintiff on the 14th ofJanuary 2002.
On the contrary, the position taken up by the defendant is that
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the plaintiff chased both the defendant and the child from thematrimonial home on the 31st January 2002. The result inposition would be summarised as follows.
The plaintiff never specified the date of desertion in the plaint.
In any event, by paragraph 10 of the plaint the defendant hasindirectly admitted that the date of desertion had occurred priorto the 11/1/2001.
The defendant's position is that the constructive maliciousdesertion on the part of the plaintiff had taken place on the31st of January 2002.
According to p22, the complaint made to the police by theplaintiff on 11/1/2002 the malicious desertion has taken placeon 4/1/2002.
According to issue number 8, which is answered by thelearned District Judge in the affirmative the defendant hasdeserted the plaintiff on 14/1/2002.
In the light of the above it would be seen that the learnedDistrict Judge has not only misdirected himself completely withregard to the date and time of the alleged desertion but hadexceeded the limits of his jurisdiction as decided in the case of
Pathmawathie v Jayasekara (supra).
Even as regards the reasons for the finding that the defendanthas deserted the plaintiff on the 4th of January 2002, the learnedDistrict Judge has erred with regard to the facts that weredisclosed at the trial. At page 162 of the judgment, the learnedDistrict Judge has stated as follows:
The passage quoted from the judgment of the learned DistrictJudge is confusing as to its meaning. Even if it is regarded, ascontradictions arising from the evidence of the defendant and thatof her mother, yet the observations of the learned District Judge,

Nilanthie Siriwardane v Krishantha
CA(Abdus Salam, J.)287
do not appear to be in accordance with the evidence led at thetrial. As far as the evidence goes, the plaintiff's version is that heproceeded to Galle on 4 January 2002 and the defendant and thechild were missing from home from that day. On the contrary, atthe evidence of the defendant was that she was at home whenthe defendant returned from Galle on the 4th of January 2002.The evidence of the mother of the defendant was that they wentto Galle to obtain treatment for the ailment of the child on the 8thJanuary 2002. In the light of the evidence given by the defendantand her mother the observation of the learned District Judge,made with regard to the credibility of the evidence of thedefendant and her mother appear to be highly unwarranted anddoes not stand to reasons.
The learned Counsel of the defendant has argued that thetransfer of the title of the matrimonial home was a ruse adoptedby the plaintiff. It is more so when the plaintiff has given it on rentto an outsider. Moreover, the mother of the plaintiff has latertransferred the rights in the matrimonial home for valuableconsideration to an outsider. As has been admitted by the plaintiffunder cross-examination on the 4th of January 2002, thematrimonial home was not available to the defendant and thechild to live. He has admitted that the day on which alleged thatthe defendant maliciously deserted him, the house in which theylived as husband and wife had been transferred to his mother,and was not available for the occupation of the defendant.
The learned Counsel of the defendant has submitted that theplaintiff has well planned a scheme within a matter of 20 days andsystematically chased the defendant away from the matrimonialhome and immediately thereafter obtained vacant possessionand then leased it out. Added to it the plaintiff has transferred therights in the house to his mother on document marked as D1.
Taking into consideration all these matters, the evidenceadduced by both parties on a balance of probability shows thatthe version of the plaintiff is highly improbable. The learnedDistrict Judge has not taken into consideration the peculiarcircumstances in which the plaintiff has leased out the property inquestion to an outsider at the crucial point of alleged desertion.
288Sri Lanka Law Reports[2008] 2 Sri L.R
Further the intention and the scheme of the plaintiff is quite clearwhen the mother had sold the property to an outsider. If theintention of the plaintiff in transferring the rights in the matrimonialhome to his mother was the threat, there was no necessity for themother to have re-transferred the property to an outsider.
These circumstances clearly indicate the malafides of theplaintiff and the scheme he has put into effect to chase out thedefendant, in the guise of malicious desertion. The learnedDistrict Judge has erred himself in not taking into consideration,the balance of probabilities as between the version of the plaintiffand that of the defendant by weighing the evidence relating tomalicious desertion and constructive malicious desertion.
The learned District Judge has failed to evaluate the version ofthe defendant as has been disclosed in the evidence. As regardsthe allegation of constructive malicious desertion, the learnedDistrict Judge has failed to properly analyse the evidenceadduced by both sides, before he concluded that the defendant isguilty of malicious desertion.
The evidence adduced by the plaintiff does not indicate themental or Physical element on the part of the defendant tomaliciously desert the plaintiff. On the contrary, the totality of theevidence indicates constructive malicious desertion of thedefendant by the plaintiff.
Moreover, the evidence led in the case, does not appear towarrant the conclusion that the District Court has finally arrived at.The transfer of the matrimonial home in the name of the motherof the plaintiff and the fact that the defendant rented it out to athird-party, clearly indicates the mind of the plaintiff to desert thewife than the defendant to desert her husband. Had the learnedDistrict Judge addressed his mind as to which version is moreprobable in the light of the evidence led before him, he wouldcertainly not have concluded that the defendant is guilty ofmalicious desertion.
The judgment of the learned District Judge therefore seems tobe perverse. His judgment does not appear to me as based onfacts nor is it consistent with the evidence led in the case. Upona consideration of the totality of the evidence, the only decision
CAJayampathi and Another v Kudabanda289
the learned District Judge could have come to is to disbelieve theplaintiff's evidence and dismissed the plaintiffs action.
For the above reasons the judgment and decree of the learnedDistrict Judge, are set-aside. Hence, the plaintiff’s action in theoriginal court should be deemed as having been dismissed.
The appeal is allowed with costs.
Appeal allowed.