038-SLLR-SLLR-2003-V-2-PUSHPAKUMARA-v.-MARMET-AND-ANOTHER.pdf
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PUSHPAKUMARA
v
MARMET AND ANOTHER
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
A. NO. 1010/99F
C. BALAPITIYA NO. 1582/DJULY 19,
AUGUST 19, ANDSEPTEMBER 2, 2002
Divorce – No specific issue on malicious desertion – Is the plaintiff entitled tosucceed ? – Civil Procedure Code, sections 146 and 146(2) – EvidenceOrdinance, section 114 – presumption of sexual relationship -Adultery -Proof of same – Ingredients of the offence.
The plaintiff-respondent instituted action.seeking a divorce against the 1stdefendent-appellant on the ground of malicious desertion and adultery andsought a certain sum as permanent alimony and further sought damages fromthe 2nd defendant-respondent for breaking down her marriage by her commit-ting adultery with the 1st defendant-appellant.
The trial court held with the plaintiff- respondent. It was contended that courtcould not have granted a divorce on the ground of malicious desertion as therewas no issue framed on malicious desertion and there was no evidence toestablish adultery beyond reasonable doubt.
Held :
Issues are framed under section 146. Under section 146(2) it is incum-bent on court to ascertain upon which material propositions of fact or oflaw that the parties are at variance, and shall proceed to record the issueson which the right decision of the case appears to the court to depend.
There is no legal requirement that the Issues so framed should express-ly and specifically refer to legal terms (grounds) on which the relief issought.
Despite the fact that the legal term malicious desertion is not referred toin the said issue, however the issue raises the factual question as towhether the 1st defendant's conduct amounted to constructive maliciousdesertion.
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A presumption could be drawn that a sexual relationship exists betweenmarried parties under section 114 of the Evidence Ordinance.
As essential ingredient of the matrimonial offense or adultery is that itinvolves sexual intercourse with a person out of wedlock.
“Direct evidence or eye witness evidence of sexual intercourse is veryrare in matrimonial actions."
It is a well recognized principle of law that direct evidence of adultery isnot necessary to prove adultery. It is well accepted that an inference of anact of adultery could be drawn from the circumstances of each case.
APPEALS from the judgement of the District Court of Balapitiya.
Cases referred to :
Fernando v Marshall! – 2 NLR 257
Ebert v Ebert-22 NLR 310
Allen v Allen & Bell – (1894) LR CA Pro. 248 at 251-252
Lovenden v Lovenden – Hagg Cons page 2
Wijayadasa Rajapakse, P.C. with Kapila Liyanagamage for 1st defendant-appellant and 2nd defendant-appellant.
Kuwera de Zoysa with S. Fonseka for the 2nd defendant-respondent and 2nddefendant-appellant.
J.C. Weliamuna with S. Jayawardena for plaintiff-respondent in both matters.
Cur.adv.vult
October 25, 2002
DISSANAYAKE, J.
The plaintiff-respondent instituted this action seeking a divorce 01
'vinculo matrimonii against the 1st defendant-appellant on theground of malicious desertion and adultery and seeking a sum ofRs. 2,000,000/- as permanent alimony from the 1st defendant-appellant and a sum of Rs.200,000/- from the 2nd defendant-respondent as damages for breaking down her marriage by hercommitting adultery with the 1st defendant-appellant.
The 1st defendant-appellant and the 2nd defendant-respondentby their separate answers whilst denying the averment in the plaint,
prayed for dismissal of the action.
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The case proceeded to trial on fifteen issues and the learnedDistrict Judge entered judgment in favour of the plaintiff-respondentgranting a divorce a vinculo matrimonii' and awarding a sum of Rs.1,000,000/- as permanent alimony and a sum of Rs. 10,000/- asdamages against the 2nd defendant-respondent.
It is from the aforesaid judgment that the 1st defendant-appel-lant preferred this appeal and the 2nd defendant-respondent pre-ferred appeal bearing No. CA. 1011 /99(F).
Both appeals were taken up together.
In the argument of the appeals before this Court learned 20President's Counsel appearing for the 1st defendant-appellant con-tended that the learned District Judge erred in entering judgment infavour of the plaintiff-respondent.
The contention of learned President's Counsel was based onthe following grounds :
the learned District Judge misdirected himself in granting adivorce on the ground of malicious desertion despite there being noissue framed on malicious desertion;
In the absence of evidence to establish adultery beyondreasonable doubt, the learned District Judge misdirected himself in 30entering judgment in favour of the plaintiff-respondent on theground of adultery.
It was the position of the plaintiff-respondent who was a Germancitizen, that she came to Sri Lanka in April 1991 for a short holidayof 3 weeks and she met the 1 st defendant-appellant who was work-ing as a steward in a tourist hotel. They became close friends. Afterher brief holiday the plaintiff-respondent left for Germany. Shecame back once again for a short holiday, either at the end of 1991or the beginning of 1992 and the 1st defendant-appellant arrangedfor her to stay in a small tourist hotel at Induruwa, which was about 4010 kilometers away from the Hotel Long Beach where the 1 st plain-tiff-appellant was employed as a steward.
The 1st defendant-appellant visited the plaintiff-respondent fre-quently resulting in a regular sexual relationship. They travelledextensively in Sri Lanka and visited many a tourist destination.
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According to the plaintiff-respondent she divulged details of herpersonal life to the 1st defendant-appellant including the fact thatshe was married before and had a child and that she lost both herhusband and the child as a result of an accident. She also divulgedthat she lost both her parents and that she inherited their property.
The plaintiff-respondent wanted to purchase a house and prop-erty in Sri Lanka for her to stay whenever she visited Sri Lanka onholiday. The 1st defendant-appellant also indicated his desire to runa tourist hotel at the house she planned to buy."
At the end of her four month holiday the plaintiff-respondent leftonce again to Germany.
She returned shortly to Sri Lanka and rented out a house atInduruwa where they lived together for about 6 months.
Thereafter she left for Germany and took the 1st defendant-appellant with her having spent for his air ticket etc. The 1 st defen-dant-appellant stayed at the plaintiff-respondent's apartment inGermany for about 2 months and all his expenses were met by theplaintiff-respondent. After 2 months, on his journey back to SriLanka he met another German tourist by the name of CarmenSpath travelling in the same plane with whom he commenced yetanother romantic relationship during her short stay here.
The 1st defendant-appellant was taken to Germany once againby the plaintiff-respondent at her expense after her next visit.During this period the 1st defendant-appellant spent more timewith Carmen Spath, without arousing the suspicion of the plaintiff-respondent.
Carmen Spath gave birth to a child fathered by the 1st depen-dent-appellant and the child was named Kevin Spath. By this timethe 1 st defendant-appellant had returned to Sri Lanka. By and bythese matters came within the knowledge of the plaintiff-respon-dent.
The plaintiff-respondent came back to Sri Lanka in 1994 andpurchased a house at Induruwa and a threewheeler both in the 1stdefendant-appellant's name and they lived in that house until 1995.Thereafter on the 4th of May 1995 they registered their marriageand became lawful husband and wife.
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During subsistence of their marriage the 1st defendant-appel-lant had met the 2nd defendant-respondent who was a youngerwoman and having got infatuated by her, married her on 22.6.1995as evidenced by the Certificate of Marriage (P2).
The plaintiff-respondent was away in Germany at this time.When she came back on 24th August 1995 she found that the 1stdefendant-appellant had contracted another marriage and was liv-ing with the 2nd defendant-respondent at his mother's house. Theplaintiff-respondent took up the position that after they became inti- 90mate lovers in 1991, the 1 st defendant-appellant was solely depen-dent on her for his living. This conduct of the 1st defendant-appel-lant described in her own words was that he was dependent on her"to purchase things from his pair of spectacles to his underwear"and he lived virtually on her money from 1991 onwards. She hadtaken him to Germany on two occasions at her expense.
The position of the 1st defendant-appellant was that his rela-tionship with the plaintiff-respondent commenced as a response toovertures made by her and her insistence to have regular inter-course with him.100
According to the 1st defendant-respondent after their marriageand when they were resident in the house at Induruwa, the plaintiff-respondent was visited by a person named Peter Oliver Brittoli withwhom she has had sexual relations before while they were living inGermany. Despite her undertaking to stop this affair she had con-tinued heedless according to the 1 st defendant-appellant. Over thisdispleasure started between them resulting in a quarrel after whichhe was ordered to leave the house by the plaintiff-respondent.
After some time the plaintiff-respondent had left for Germany. Itwas the position of the 1st defendant-appellant that after he left her nohe met the 2nd defendant-respondent and married her in June1995.
The 1 st defendant-appellant stated that since he did not have ahouse of his own he did not consummate the second marriage. Hestated that he consummated his marriage to the 2nd defendant-respondent only in 1997. He denied that he had a sexual relation-ship with Carmen Spath.
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Under cross-examination the 1st defendant-appellant concededthe following matters :
that the plaintiff-respondent told him that her former hus-120band and child had died in 1970 as a result of an accident;
that the house at Induruwa was bought by the plaintiff-respondent in the 1st defendant-appellant's name;
that Case No. 1800 was pending and the said case wasinstituted by the plaintiff-respondent on the basis that the 3-wheeler was bought by her in the name of the 1st defen-dant;
that the plaintiff-respondent took him to Germany along withher and that he lived with her in Germany;
that while in Germany that he had lived with Carmen Spath 130and had a child by her;
that letters P6 to P50 and P53 were written by him to theplaintiff-respondent and letters P51 to P52 were written byhim to witness Roshan and another friend.
The 1 st defendant-appellant's testimony in evidence in chief tothe effect that the plaintiff-respondent did not tell him that she wasmarried before and had a child and that she lost them both as aresult of an accident was contradictory to his evidence under cross-examination.
His evidence that he purchased the house at Induruwa with 140
funds provided by his father and making use of his savings wasbelied by his admission in cross-examination where he admittedthat it was the plaintiff-respondent who bought the house in hisname.
His denial in the evidence that he received a Court order (P32)from a German court to pay maintenance in respect of the child ofCarmen Spath and that he sought the assistance of the plaintiff-respondent is contradicted by his letter produced marked P33 inwhich he had requested the plaintiff-respondent to translate theorder of the court and sent it to him.
The evidence of the 1st defendant-appellant that the conduct of
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the plaintiff-respondent in carrying on a sexual relationship with. Peter Oliver Brittoli was the cause of the breakdown of the marriageis belied by the contents of letters P6 to P50 and P53 sent to theplaintiff-respondent. In none of these letters has the 1st defendant-appellant made this accusation against the plaintiff-respondent. Allthese letters have been expressions of unreserved love for theplaintiff-respondent.
On the contrary in letter P52 written by the 1st defendant-appel-lant to witness Roshan about his relationship with Carmen Spath 160he has stated thus: "As I know that Teena (the plaintiff-respondent)loves me, that is why I am sad, as I have committed a bigoffence
"Roshan I have played out Teena. What to do sometimes I feelsorry. Teena has done everything to me…. I beg the pardon fromGod for all my bad work."
Despite the overwhelming evidence available in this case whichestablishes constructive malicious desertion the question ariseswhether in the absence of an issue specifically using the term 'con-structive malicious desertion' the plaintiff-respondent is entitled to 170succeed on that ground.
It is apparent that issue No.2 which is to the effect that when theplaintiff-appellant returned to Sri Lanka on 25.08.1995 the 1stdefendant-respondent chased her out stating that he was living asman and wife with the 2nd defendant-respondent had put con-structive malicious desertion as an issue though not specificallystated.
Despite the fact that the legal term malicious desertion is notreferred to in the said issue however the issue raises the factualquestion as to whether the 1st defendant-respondent's conduct 180amounted to 'constructive malicious desertion'.
Issues are framed under section 146 of the Civil ProcedureCode. Under section 146(2) it is incumbent on court to ascertainupon which material propositions of fact or of law that the partiesare at variance, and shall proceed to record the issues on which theright decision of the case appears to the Court to depend.
Therefore it appears that there is no legal requirement that the
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issues so framed should expressly and specifically refer, to legalterms (grounds) on which the relief is sought.
In the case of Fernando v MarshalA1) the plaintiff instituted anaction seeking a declaration of title to a parcel of land and to recov-er possession of it. The plaint averred possession upwards of tenyears of the land on the part of the plaintiff and his predessors intitle. The issues framed and agreed to at the trial were as to suchpossession. They did not expressly refer to a decree under thePrescription Ordinance. Bonser, CJ held that the omission toexpressly refer to the Prescription Ordinance was not prejudicial tothe defendant and as the plaintiff had discharged his burden on theissues as to possession he is entitled to the parcel of the land heclaimed.
Therefore I am of the view that issue No. 2 has adequately setout the issue of constructive malicious desertion on the part of the1st defendant-appellant. In any event even if an issue using thespecific term "constructive malicious desertion" has been framedthe evidence led is adequate to feed the issue and no prejudice hasbeen caused to the defendant-appellant.
The plaintiff-respondent relied on the following items of evidenceto establish adultery between the 1st defendant-appellant and the2nd defendant-respondent:
The admission in evidence by the 1st defendant-appellantthat he entered into a marriage with the 2nd defendant-appellant on 22.06.1995. The marriage certificate produced(P2) too establishes this.
The admission in evidence by the 2nd defendant-appellantof this fact. '
The evidence of the plaintiff-respondent that she saw the2nd defendant-appellant at the 1st defendant-appellant'smother's house when she came back from Germany.
The admission in evidence by the 2nd defendant-appellantthat she got to know each other in June 1994 and in early1995 they decided to marry.
The only inference that can be drawn from the above men-
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tioned items of evidence is that the 1st defendant-appellant startedcohabitation with the 2nd defendant-appellant soon after their mar-riage on 22.06.1995. The version of the 1st defendant-appellantand the 2nd defendant-respondent that they started cohabitationonly in January 1997 is unacceptable.
A presumption could be drawn that sexual relationship existsbetween married parties, under section 114 of the EvidenceOrdinance.230
Section 114 of the Evidence Ordinance provides as follows :
"The Court may presume the existence of any fact which itthinks likely to have happened, regard being had to thecommon course of natural events, human conduct and pub-lic and private business, in their relation to the facts of a par-ticular case."
Unless it is rebutted by cogent evidence the presumption of asexual relationship between married parties could be drawn by aCourt.
The next question that has arisen is whether on the evidence led 240in this case has the plaintiff-appellant established the offense ofmatrimonial adultery.
An essential ingredient of the matrimonial offence of adultery isthat it involves sexual intercourse with a person out of wedlock.Direct evidence or eye witness evidence of sexual intercourse isvery rare in matrimonial actions.
It is a well-recognized principle of law that direct evidence ofadultery is not necessary to prove 'adultery'. It is well accepted thatan inference of an act of adultery could be drawn from the circum-stances of each case.250
In the case of Eberts/ Ebeif2) where in a maintenance action therefusal of the wife to live with the husband on ground of his adultery.it was held that to establish adultery it is not necessary to prove thedirect fact of adultery, nor is it necessary to prove a fact of adulteryin time and place. The fact may be inferred from circumstanceswhich lead to it by fair inference as a necessary conclusion,Schneider, AJ at page 312 stated thus, "To.lay down any general
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rule, to define what circumstances would be sufficient and what areinsufficient upon which to infer the fact of adultery is impossible".
Schnieder, A.J. at page 312 went on to quote with approval thefollowing from the judgment of Lopes, L.J. in the case of Allen vAllen and Bell®) at 251-252.
"It is not necessary to prove the direct fact of adultery, noris it necessary to prove a fact of adultery in time and placebecause, to use the words of Sir William Scot in Lovenden vLovenden,4 "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 factof adultery. In every case almost the fact is inferred from cir-cumstances which lead to it by fair inference as a necessaryconclusion; and unless this were so held, no protection what-ever could be given to marital rights".
Inherent in the fact of the 1st defendant-appellant contracting asubsequent marriage with the 2nd defendant-respondent on
is the culpability of the 1st defendant-appellant in com-mitting malicious desertion constructively in relation to the plaintiff-respondent.
Taking into consideration the totality of the evidence, whichreveals the conduct of the 1st defendant-appellant, he has not onlycommitted adultery but also had wilfully created a situation for theplaintiff-respondent to leave her matrimonial home.
Therefore I am of the view that the 1st defendant-appellant isguilty of both malicious desertion and having committed adulterywith the 2nd defendant-respondent, and the plaintiff-respondent isentitled to a decree of divorce a vinculo matrimonii.
Learned counsel appearing for the 2nd defendant-appellant inAppeal No.1011/99 (F) contended that the learned District Judgeerred in entering judgment against the 2nd defendant-appellantmerely because she contracted a marriage with the 1st defendant-respondent on 24.06.1995. He further contended that the learnedDistrict Judge did not consider her following evidence :
1. that the 2nd defendant-appellant was not aware of the firstmarriage,
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that the evidence that she did not consummate the mar-riage till 1977.
It is pertinent to observe that the learned District Judge rejectedher evidence that she was not aware of the fact that the 1st defen-dant-respondent was already married to the plaintiff-respondentand accepted the evidence of Dhammika Roshan who was a closefriend of the 1st defendant-respondent and whose wife was a good 300friend of the 2nd defendant-appellant. The closeness of the friend-ship between the 1st defendant-respondent and DhammikaRoshan is established by the contents of letter P51 whereby the 1stdefendant-respondent had confided in him his confidential detailsrelating to his sexual relationship with the plaintiff-respondent andCarmen Spath.
In the backdrop of the evidence of the plaintiff-respondent's tes-timony that when she came back from Germany in 1996, that sheobserved that the 1st defendant-appellant had moved out of theirmatrimonial house taking all his belongings and on her visiting his 310mother's house that she observed the 2nd defendant-appellant liv-ing in his mother's house, was accepted by the learned DistrictJudge after a proper analysis and evaluation of the evidence in thecase, to come to the findings that he did come in this case.
Despite the plaintiff-respondent claiming Rupees two million aspermanent alimony from the 1st defendant-appellant and Rupeestwo hundred thousand as damages from the 2nd defendant-respondent, the learned District Judge awarded a sum of RupeesOne million as permanent alimony as against the 1st defendant-appellant and a sum of Rupees ten thousand as damages against 320the 2nd defendant-respondent.
Having examined the evidence and the judgment, I see no basisto interfere with the judgment of the learned District Judge.
Therefore I dismiss both appeals of the 1 st and 2nd defendant-appellants with costs.
SOMAWANSA, J.I agree.
Appeals dismissed.