Rajeswararance v. Sunlhararasa
1962 .Present: Basnayake, C.J., and Herat, J.
RAJESWARARANEE, Appellant, and SUNTHARARASA,.
S. G. 479/59—D. G. Chavakachcheri, 16S8/D '
In. cm action for divorce on the ground of malicious desertion proof is necossarythat the dosortor wilfully brought to an end the existing state? of co-habitationwith the deliberate purpose of abandoning conjugal society.
Whore both husband and wife were anxious to resume their conjugal life,but the husband wanted the wife to come to his house while the wife wantedtho husband to come to her houso in the same village—
Held, that malicious desertion on the part of the wife was not proved.
Appeal from a judgment of the District Court, Chavakachcheri.
S. Nadesan, Q.G., with S. Sharvananda, for Defendant-Appellant.
H. W. Jayewardene, Q.C., with P. Navaratnarajah and N. R. M.Daluwatlc, for Plaintiff-Respondent.
BASNAYAKK. C.J.—Rajeswararanee v. Sunthararasa
March 7, 1962. Basnayake, C.J.—
This is an. appeal from the judgment of the learned District Judge ofChavakachcheri in an action for divorce on the ground of maliciousdesertion. The plaintiff alleged that he was married to the defendanton 22nd May 1955 and that by that marriage there were two childrennamely Madhumalar Rasakularanee bom on 27th December 1955 andAnton Rajaselvan bom on 1st December 1957.
The story of the domestic life of the parties to the marriage is brieflyas follows :—The plaintiff was a clerk in the Government Clerical Servicestationed at Colombo at the time of his marriage. The defendant isthe daughter of a cousin of his. Their parental homes were at Nunavilin Chavakachcheri opposite each other about 200 yards apart on eitherside of the Kandy Road. At the time of the marriage the plaintiffwas stationed in Colombo. They shared the plaintiff’s brother-in-law’shouse at Nugegoda. He was the Chief Accountant in the Forest Depart-ment aid had rented out a spacious house. They lived in that houseuntil 2nd June 1955 when the plaintiff’s brother-in-law suddenlydied.In consequence of that the house had to be given up and the plaintiff’ssister and the defendant left for Jaffna. At about the same time theplaintiff was transferred to the Jaffna Kachcheri, and he rented out ahouse at No. 18 Colombagam Road, Jaffna. He shared that housewith his widowed sister Thavamany. They resided in that housefor nine months until April 1956. On 17th February 1956, about twomonths after the birth of her first child, the defendant left for her father’shouse as she was suffering from an illness which was described by thedoctor as puerperal insanity. Her jewellery was handed over to herfather and a receipt obtained.
On 5th March 1956 the defendant lodged a complaint against theplaintiff in the Magistrate’s Court of Jaffna alleging that he intentionallyand wrongfully confined her two months’ old baby and prevented herfrom feeding her infant child. That complaint was withdrawn in thatmonth itself. On the day that complaint was withdrawn the witness
K.V. Kandiah a mutual friend sought to bring the parties together.The plaintiff wanted the defendant to live with him at the ColombagamRoad house and the defendant wanted him to come to her father’shouse a part of which had been dowried to her. On the same day thatshe ilodged the complaint in the Magistrate’s Court, namely 5th March1956, the defendant made a habeas corpus application to the SupremeCourt in which she asked for the custody of her child Madhumalar Rasa-kularanee whom she alleged the plaintiff was keeping in unlawful confine-ment. That petition was withdrawn on 24th March 1956. The recordreads as follows :—
“ The petitioner states that she has now made up with her husband,
the respondent, and desires to withdraw this application.”
368BASNAYAKK, C.J.—Rajcswararanee v. Sunlhararasa
As the defendant was unwilling to come to the Colombagam Roadhouse the plaintiff gave up .that house and in April 1956 went to livewith his parents at Nunavil. While the plaintiff was living with hisparents on 5th January 1957 the defendant made an application formaintenance. That application was withdrawn on 23rd February1957 as the plaintiff offered to maintain her. The minute dated 6th
February 1957 reads as follows :—
. * * ’
“ It appears that a reconciliation has been brought about betweenthe parties and the applicant desires to. go with the defendant and givehim an opportunity of proving his bona fides in the matter.”
To give effect to the offer made by him in the maintenance case aboutFebruary 1957 the plaintiff took on rent his sister Ponmany’s houseadjoining his parents’ house and the defendant lived there with himtill the date of the alleged desertion. While they were living in Ponmany’shouse the plaintiff was appointed to the accountants’ service and wastransferred to Colombo in October 1957. He went to Colombo leavinghis wife behind ; but visited her regularly. In 1957 he visited her onthree occasions and in 1958 on sixteen occasions. Even at the dateof the alleged desertion he had made no arrangements to take his wifeto Colombo. He attributed his failure to do so to the housing shortage.When the plaintiff left, the defendant persuaded her mother to staywith her as she was alone.
The defendant owned a half share of her father’s house which had beendowried to her. That half share had not been divided and for a longtime the question of going to reside in that house was under discussionbut it never took place because the plaintiff disliked his father-in-lawand his wife’s grand-aunt Ponnammah who lived in a house in the samecompound. He also stipulated that as a condition precedent to hisgoing there the house should be divided to his satisfaction. Thedefendant was anxious to go to her dowried house and in consequence ofcertain arrangements made the house was divided by her father but theplaintiff disapproved of his division and refused to go into residence.On the last visit of the plaintiff which was round about 10th November1958 be and his wife gave a proxy to Proctor Thiraviyanayagam toinstitute a partition action in respect of the defendant’s dotal property.The proxy was signed in their house in the presence of the proctor.This appears to have been the immediate cause for the defendant’sdeparture from Ponmany’s house to her father’s house. The partitionaction appears to have been distasteful to the daughter and the fatherfor according to proctor Thiraviyanayagam the defendant’s fathercame and asked him not to file the partition action. The defendantsays that she did not favour the institution of a partition action andthat she was forced to sign the proxy. It was shortly after that thatshe moved to her father’s house. Although the plaintiff disliked theplace the defendant’s portion of her parental home had three rooms.
BASNAYA35JE, C. J.—Rajeswararanee v. Sunthararasa
The defendant’s story is that she was kept virtually a prisoner by theplaintiff, but the learned District Judge has rejected that evidence.But whether she was a prisoner or not, the blame for her departure on12th or 13th or 16th November—all three dates are mentioned in theevidence—has been fixed on the plaintiff’s parents who it is alleged madelife intolerable for her. Consequent on the defendant’s going to herparents’ house, the plaintiff’s father telephoned the plaintiff and hecame down to Jaffna. Both parties were summoned, perhaps in con-sequence of complaints made to him, by the Inspector of Police whosought to bring about a reconciliation. The plaintiff insisted on thedefendant’s coming back to Ponmany’s house while the defendantinvited him to come to her dotal house. In the course of the discussionsat the Police Station the Inspector says that the defendant addressedher husband as follows :—“ Why don’t you come to my house, havea cup of tea and then take me to your house ?” Although the parties wereat variance as to where they should reside there was no intention on thepart of either to break up the marriage because they were willing tocontinue to live as husband and wife ; but the husband wanted thewife to come to his house while the wife wanted the husband to cometo her house.
The only question is whether the learned District Judge is right inthe conclusion which he has formed that the facts establish maliciousdesertion on the part of the defendant. "Malicious desertion” isdefined by a number of authorities, but it is sufficient for the purpose ofthis case to cite from the case of Boyer v. Boyer1 which defines “maliciousdesertion ” as the wilful absenting himself or herself, by one spouse,from the society of the other, against the desire of the latter, with thedeliberate intention of abandoning conjugal rights. It is necessarythat the deserter must actually and wilfully bring to an end the existingstate of co-habitation with the deliberate purpose of abandoning conjugalsociety (James v. James 2). Now when one looks at the evidence in thelight of the above definitions of malicious desertion the defendant’sdeparture from Ponmany’s house in November 1958 is not maliciousdesertion.
It would appear that in July 1958 the plaintiff and the defendanthad arranged to move into their dotal house. They were looking forwardto going there. In one of her letters to the plaintiff on 21st July 1958(P13) the defendant wrote, "'The portion of the house as well as thecompound has been divided. Therefore you need not worry aboutanything. It is better if we shift to that house.” In a post-scriptshe added, " Anton is packing his little suit case to shift to that house.”As stated above the plaintiff’s disapproval of the division and his obsession1 15 Natal Law Reports 124.* 22 Natal Law Reports 205.
BASNAYAKE, C. J.—Rajeswararance v. Sunthararasa
about the defendant’s grand-aunt Ponnammah stood in the way of thefulfilment of this arrangement. The plaintiff’s attitude is shown in thefollowing statements made in the course of his evidence :—
“If it was partitioned satisfactorily I would have gone and livedwith the defendant. At the meeting of Inspector Moorthy, if thedivision of house had been done satisfactorily I would have acceded. to the request of the defendant and gone there.”
“ I went to the house and found that the partition was not satiss'factorily done. I do not know whether the Surveyor had been broughtthere to partition that. If I had got half the house I would havelived with my wife there. Tt is in those circumstances that I told mywife to come and live with me in Ponmany’s house.”^ .
The following answers to questions by the Judge reveal that it wasnot the defendant but the plaintiff who wanted to abandon conjugalsociety :—
“ To Court: Ponmany’s house is there even now. Nobody is occupy-ing that house now.
Q.Is it possible for you Mr.Sunthararasa, in the interests of yourchildren, if the status quo is restored, by the lady coming overto Ponmany’s house and living there ?
Q.You want nothing else than a divorce ?
A. I cannot live with her. It is impossible.
Q. You have lost your patience because your-wife has been goingagainst you %
I do not make any charge against my wife. By “ goingagainst me ” what I meant was her listening to her fatherand working to my detriment.
Q. You know that her father is dead now ?
A. All the people there hav6 control over my wife.
Q. Your wife has been very loving towards you ?
Q. She is not a quarrelsome lady ?
A. She is not.
Q. If anything she is very gentle and very quiet disposition ?
To Court: I loved her because of these very good qualities.”
These answers reveal the plaintiff’s unreasonable attitude. The follow-ing further evidence shows how uncompromising he was.
“It is on 12.11.58 that she finally got away. Thereafter I sawher at the police station and in the presence of Inspector MoorthyI beseeched her to come. I met her at the Chavakachcheri Police
BASNAYAKE, C.J.—Rajeawararanee v. Sunthararcua
Station on the 16th morning. She had gone to the Police Stationon her own and I had gone on my own. I asked her to come backto: Nunavil but she refused.
Q. What exactly did she tell you 1
A. I cannot come with you. If at all you come and live with mewhere I am now.
To Court: That is across the road ?
She did not tell me anything about the ill-treatment of mysister.
Q. What is your position witness now ? Do you want to livewith your wife ?
A. It is impossible to live with her. I do not want to live with her.Q. Why is it impossible ?
A. She is always prepared to go against me and I was unnecessarilygetting embarrassed.”
It would appear therefore that both parties were anxious to resumetheir conjugal life. The facts as found by the learned District Judgeoh this material do not in our view warrant the inference that theplaintiff has established clearly, as is required by law, that the defendantleft the house with the intention of bringing the marriage to an end.In fact the plaintiff is the person to blame for the situation in whichhe found himself. He confessed in the course of his evidence : “ Thingswould have been very different if I had taken a house in Colombo andtaken her to Colombo.” Even though he realised this he made no attemptto put matters right. He did not offer to take his wife to Colombo awayfrom his parents and sister to whom the defendant objected and withwhom she did not get on. Such an offer may have ended the deadlockover the question of their residence. The proper approach to the questionof malicious desertion is in our view set out in the following passagefrom Van Zyl’s Judicial Practice Vol. II p. 662-663 :—
“ The tendency of modem decisions is rightly to look not to oneisolated act, or the act of desertion by itself, but to take ' all thecircumstances ’ into consideration, and to deduce therefrom, if itcan reasonably be done, the act of desertion. Of course if there isclear evidence of the refusal of the party to return, it is an act ofdesertion and the decree must be granted …. It is a matter
very much in the discretion of the Court, and in judging of suchconduct every ingredient should be taken into consideration; such asthe pecuniary means and social position of the parties, their-habitsand customs, the primary cause of the defendant’s absence, underwhat circumstances he or she left, to or from what place, to a greatdistance or close by, to a foreign country or not, to a civilised countrypr a barbarous or sparsely populated one, the means of communica-tion, the cause of the continued absence, the correspondence or not
Samsudccn v. Eagle Star Insurance Co., Ltd.
between, the parties, the contribution by the one towards the othei dsupport; also the efforts made by either to induce the other to return,or by a husband to induce his wife to follow him, or the means adopted,or steps taken by the innocent party to discover the whereabouts. of the other, the unexplained absence, and the defendant’s silence.”
On the material before us we are unable to accept to the submissionsof learned counsel for the respondent. In our opinion the conclusionreached by the learned Judge that the evidence established an act ofmalicious desertion is wrong. The appeal must therefore be allowed.
The defendant asked in her prayer that the plaintiff’s action be dismissedand that a decree for separation a.mensa et thoro be entered.
The learned counsel for the appellant does not in appeal ask for aseparatio mensa et thoro as stated in the prayer of the appellant. Wetherefore set aside the judgment of the learned District Judge and dismissthe plaintiff’s action with costs in both Courts.
Hekat, J.—I agree.
RAJESWARARANEE, Appellant, and SUNTHARARASA, Respondent