069-NLR-NLR-V-59-P.E.-BAPTISE-Appellant-and-P.-SELVARAJAH-and-another-Respondents.pdf
284
Baptiste v. Selvarajah
1957Present : H. N. G. Fernando, J., and T. S. Fernando, J.
P. E. BAPTISTE, Appellant, and P. SELVARAJAH•and another, Respondents .
S. C. 622—D. O. Colombo, 3,123'
Di vorcc—Adultery—Condonal ion—Proof.'
Tho more fart that the spouses continue to live under the samo roof does notnecessarily show condonation of adultery, for the parties may do so by forceof circumstances and not 03 the result of a true reconciliation. '.;
. Scmblc : Since reconciliation involves’a mutual intention on the part of bothspouses to restore what was sundered, an invitation by the innocent spousoto have intercourse which is rejected by tho guilty spouso does not constitutecondonation of adultery. ; .”
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T. S. FJOU'NANDO, .f.—Tiaptisle v. Sclvarajnh
T1 P Tv A T, from a judgment of the District Court, Colombo.
S. Sharvananda, with K. Jiajaralnatn, for the 2nd defendant-appellant.
V. Ralnasabajialhy, for the plaintiff-respondent..
Cur. adv. vull.
April 12, 1957. T. S. Ferxaxdo, .J.—
Tfie plaintiff (husband) instituted nil action on 19tli October, 1953,claiming a dissolution of his marriage with the 1st defendant (wife) on thegrounds of
(re) her adultery with the 2nd defendant on several occasions betweenNovember, 1952, and 17th September, 1953,
her malicious desertion on the said 17th September, 1953.
Ho further claimed (l) damages from the 2nd defendant in a sumof Its. 15,000, and (2) the custody of the child of the marriage between hiswife and himself.
At the trial the acts of adultery on which the plaintiff relied to establishhis case were confined to three, and in the course of a careful analysisof the evidence led before him the learned district judge has found onlythe second of these three acts, viz., the act of adultery alleged to havetaken place in the plaintiff's house in December, 1952, proved to his satis-faction. He has held that the plaintiff is entitled to a decree for divorceon the ground of such adultery as well as by reason' of the maliciousdesertion on the part of the 1st defendant proved to have taken placeon 17th September, 1953. The 1st defendant filed no answer, but waspresent at the trial, at first unassisted but later represented by a proctor.She neither gave nor called any evidence on her behalf and in fact hasnot appealed against the judgment of the District Court.
In regard to the claim against the 2nd defendant which was one fordamages only, tho learned district judge has, in view of his finding thatthe 2nd defendant was guilty of adultery with the 1st defendant inDecember, 1952, awarded to the plaintiff a sum of fls. 5,000 as damages.
It may be noted that the 2nd defendant himself neither gave nor calledany evidence at the trial. Wide it is not contended on appeal that thefinding of the learned judge in regard to adultery in December, 1952, isunsustainable, it is argued on behalf of the 2nd defendant that suchadultery was condoned by the plaintiff’s subsequent conduct in relationto his wife and that condonation of the adultery has the effect under ourlaw of wiping out the offence altogether and rendering it incapable of ,
■2SG ‘'' T. S.’ Jb'JiRNAlfDO, J.—Baptiste i). Selvarajah .
revival. It is accordingly contended that in terms of section 601 of theCivil Procedure Code, the plaintiff’s action should have been dismissedand such dismissal would include a dismissal of the claim against the ‘co-defendant.-’
While the Civil Procedure Code casts a duty upon the trial judge tosatisfy himself upon a tried in a divorce action whether the plaintiffin such action has condoned the act or conduct which constitutes theground upon which the dissolution of the marriage is prayed for, it isnoteworthy that the 2nd defendant did not himself raise the questionof condonation either in his answer or in the issues accepted at the trial.However that may be, the question of condonation was specifically con-sidered by the learned district judge and he has reached a finding thatthe evidence of the plaintiff did not establish that he had condoned theact of adultery in December, 1952. In contesting this finding, learnedcounsel for the 2nd defendant places reliance on the evidence that theplaintiff notwithstanding the adultery in December, 1952, lived with the1st defendant until her desertion in September, 1953. It is necessaryto examine the evidence on the point in view of its importance to theargument raised on behalf of the 2nd defendant. I reproduce belowthe relevant evidence as it appears in the cross-examination of theplaintiff:—
Q : When you took her back on those two occasions you lived thesame life as husband and wife ?
A : Yes. I merely lived in the same house but I had nothing todo with her. We were under the same roof, but not in the sameroom. We ate at the same table and went about together.
Q : Didn’t you want to resume marital relations ?
A : She did not consent to it.
Q : Otherwise you were willing ?
A : Hot that I was willing. She also complained of womb troubleand I took her to Dr. Thiagarajah because lie attended on her ather first confinement. I did not ask her for marital relations.She refused in the sense that she did not like to live with me ashusband and wife in the same room. I was also not u'illing. .Her normal behaviour was different to what it was earlier.
Q : Why didn’t you resume marital relations ?
A : Because I did not want."'''
Q : Your answer was that because she was not willing ? r. %; – ;Vy.
A : I (lid not want and she was not willing. Because she acted in a ~
– different manner to what she v'as before.she went a second time.
T. S. FKRNAXDO, J.—Baptiste i>. Selva rajah2S7
Certain evidence elicited in the course of the cross-examination of oneof the plaintiff's witnesses, viz., Excise Inspector Webber, in regard to.apparent reconciliation was also referred to by counsel, but it is clearupon a close analysis of that evidence that Webber was there referringto a reconciliation after an earlier allegation of adultery and not a recon-ciliation after the incident of December, 1952. In fact it was Webber’sposition that after the later incident he himself made no effort to bringhusband and wife together. The learned district judge was thereforecorrect in considering the question as lie did upon the evidence of theplaintiff alone. It is apparent from his evidence that no sexual inter-course took place between his wife and himself after the .incident ofDecember, 1952, but it is stressed that the parties refrained from sexualintercourse merely because the wife did not consent to it on account ofher “ womb trouble ” and that so far as the plaintiff was concerned hewas quite willing to forgive his wife and was prepared to resume allmarital relations. I do not consider that it is a fair infei'ence from theevidence that the plaintiff was willing to resume married life as before ;on tho other hand, it seems to me that the evidence bears out the reason-ableness of the conclusion reached by the trial judge that there was nocondonation. Apart from the passage from Da toy on Divorce relatingto the circumstances in which marital offences are condoned cited by thelearned district judge in the course of his judgment, I may usefully referin this context to the following observations contained at page 309 ofHahlo on The South African- Law of TLusband and Wife :—
“ Since reconciliation involves a mutual intention on the part ofboth spouses to restore what was sundered, an invitation by the innocentspouse to have intercourse which is rejected by the guilty spouse doesnot constitute condonation … The mere fact that the spouses
continue to live under the same loof does not necessarily show condo-nation, for the parties may do so by force of circumstances. Butif it can be shown that the part ies continued or resumed life in common,because the3r became reconciled, and that the guilty spouse has beenrestored to his or her former position, there is condonation even thoughno sexual Intercourse has taken place. ”
The fair inference from the evidence, in my opinion, is that the livingtogether in one house of husband and wife with their child from December1952 till the wife’s desertion in September, 1953, was the result of- theforce of circumstances rather than of a true reconciliation. Apart fromthat, the verdict of the trial judge being supportable on the evidencebefore him should, in m3" opinion, be affirmed.-
It is true that the learned district judge has proceeded to consider thequestion of the lialailifcy- of the 2nd defendant even on the assumptionthat the plaintiff had condoned the adultery ; but that question", in my -opinion, is only of academic interest in view of the finding alreadyreached on the facts. It is therefore unnecessary to. consider the ableand interesting argument advanced by learned counsel for the 2nddefendant that the effect of the condonation of the matrimonial offencemust be considered according to the rules of the lloman-Dutch Jaw which
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T. S. FERN'AXUO, J.—Baptiste v. Sclvarnjah
is the law by which we are governed in this country in matters of divorceand not of the English law which the learned district judge has purportedto follow and apply in his judgment.
In view of the conclusion we have reached on the facts I would dismissthe appeal with costs.
■ H. N. G. Fersaxdo, J.—I agree.
Appeal dismissed.