RAMALINGAM v. RAMALINGAM et al

029-NLR-NLR-V-35-RAMALINGAM-v.-RAMALINGAM-et-al.pdf


174
DALTON A.C.J.—Ramalingam v. Ramalingam.
1933Present: Dalton A.CJ. and Drieberg J.
RAMALINGAM v. RAMALINGAM et al.
121—D. C. Colombo, 35,720.
Divorce—When desertion is malicious—Hope of reconciliation—Claim inreconvention—Costs.
Where a woman leaves her husband finally against his will andwithout legal justification, her desertion would in law be malicious.
In Roman-Dutch law no divorce should be granted on the ground ofmalicious desertion whilst there remained any hope of reconciliation.
Where a defendant made a claim in reconvention which was abandonedbut which necessitated enhanced stamp duty on the plaint and otherdocuments filed by the plaintiff and the action was dismissed as againsthim, such defendant must pay all the additional costs incurred by theplaintiff and the other defendants as a result of his claim.
PPEAL from a judgment of the District Judge of Colombo.
Hayley, K.C. (with him Tisseverasinghe and Gratiaen), for plaintiff,appellant.
No appearance for first defendant, respondent.
N. E. Weerasooriya, for second defendant, respondent.
Abeyesekera, for third defendant, respondent.
July 7, 1933. Dalton A.C.J.—
The plaintiff (appellant) sought to obtain a divorce from the firstdefendant (respondent) his wife, by reason qf her alleged adultery with thesecond and third defendants (respondents) from whom he claimed Rs. 1,000damages. He also sought to obtain a divorce on account of maliciousdesertion on the part of the first defendant. First defendant denied theadultery and desertion, and herself claimed a judicial separation fromplaintiff on account of his alleged adultery. Second defendant deniedthe adultery, as did the third defendant, but the third defendant claimedthe sum of Rs. 2,000 in reconvention from the plaintiff, alleging he hadsuffered pain of body and mind, and been injured in his credit and.reputation by what he called the frivolous action of the plaintiff.
On the issues (1) and (2) as to whether the first defendant had com-mitted adultery with either the second or third defendant or with boththe learned – trial Judge found in first defendant’s favour,, although hemost adversely comments upon her lax and callous conduct. There is anappeal from this finding, but, before us, counsel for appellant admittedthat haying regard to the evidence he could not ask the Court to say thelearned trial Judge was wrong. The first defendant did not appear onthe appeal.
On the issue as to malicious desertion, the learned trial Judge alsoholds against the plaintiff. It is this finding that is contested in theappeal. The learned trial Judge states that the issue was not seriouslypressed. There is no doubt that the first two issues occupied most of the
DALTON A.CJ.—Ramalingam v. Ramalingam.175
time and attention of counsel and Judge at the trial, but I can see nothingto suggest that the third issue was not also relied upon by plaintiff.If he had succeeded on issue (1) or (2), it would not have been necessaryto deal with the third issue, but it nevertheless remained throughout thetrial one of the issues upon which plaintiff relied to succeed in his claimagainst die first defendant. She had pleaded (issue 6) that she wascompelled to leave the plaintiff on August 19, 1929, on account of hiscontinual cruelty and ill-treatment of her, and this issue was answeredin her favour. The learned Judge however refers to only one act, thesending on an earlier occasion of a false telegram, which he says was avery cruel piece of work, but it is clear this act had nothing to do with thewife leaving her husband. There must have been occasions, the learnedJudge states, on which the plaintiff treated his wife cruelly, but they arenot specified. The wife does make some loose and general chargesagainst him in this respect, but her evidence is most unreliable andexaggerated.
In these circumstances it is necessary to review the evidence uponwhich plaintiff relies to substantiate his claim that the first defendanthas maliciously deserted him.
There is no doubt that the first defendant left her husband on August19, 1929, when she went to Badulla. In one statement the date is saidto be August 24. The plaintiff undoubtedly, as the trial Judge finds,had cause to complain of her behaviour with men before that, althoughhe did not suggest any immorality until later. He states he first becameaware of her unseemly conduct with the second defendant aboutNovember, 1928. His work kept him in the Fort from early morninguntil evening, and hence he was unable to be at home during the day.As a result, in January he told her he was going to consult a proctor andabout January 9 he took his wife with him to the proctor’s office. Therehe states first defendant admitted her friendship with the second defendant.There cannot be any doubt about the interest of the second defendantin the first defendant. The learned trial Judge is satisfied the card P8was written by him to her, addressed to her as Mrs. Sakuntala, the name,it is stated, of a beautiful goddess. As a result of what took place at theproctor’s, husband and wife agreed to separate, and the proctor was todraw up the separation deed which was to be ready for signature onJanuary 15. On January 14, plaintiff says she ran away to her brother,Dharmal ingam’s house. She was however brought back on January 18,and it would seem that as a result of the efforts of Dharmalingam andother relatives, the deed of separation was not signed. Her explanationof her leaving her husband on this occasion is that her husband was thenopenly keeping Nagamany as his mistress, but this is obviously anafterthought and untrue. It is with her that first defendant accusesher husband with committing adultery. The learned trial Judge stateshowever that no evidence worthy of the name was led on this issue,and he finds in favour of the plaintiff. Thereafter, husband and wifecontinued to live together in the same house with Suppiah’s familyuntil March when they moved from the house in Barber street toPrakrama road. In March the first defendant paid a visit to Badullain connection with her sister’s daughter attaining age. Plaintiff says
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he was on quite happy terms with his wife at this time; that he madethe arrangements for this visit, although he did not see her leave, andthat she promised to return in three days’ time. She states she promisedto return in ten days’ time. The date of her departure from Colombo isuncertain. Plaintiff says she left about March 24 or 25, but it mayhave been a day or two earlier, since he says he received some informationfrom the witness Baliya two days after she left. He says she did notreturn within the three days, and on March 25 he received some inform-ation from Baliya to the effect that when she had left Colombo for Badullashe had travelled with the third defendant and others. The third defend-ant is a connection by marriage of an uncle of the first defendant andlived at Badulla, although there is evidence to show that he worked attimes in Colombo and visited the plaintiff’s house in Barber street.There can be no doubt that about this date plaintiff received somedisconcerting news about his wife, for he sent off on March 25 two tele-grams asking her to return at once, the first stating that their son hadmet with a serious accident and the second that he had died. Thesestatements were both false, and the sending of the telegrams was, as thelearned trial Judge states, a cruel • piece of work. They do howeversupport plaintiff’s statements that he had received information about hiswife which might confirm his suspicions as to her continued absencebeyond the date on which she had promised to return. In spite of thefact that plaintiff states he had reason to think she would not comeback, believing the telegram she returned at once, but there can be nodoubt that unpleasantness resulted on both sides although they continuedto live together as husband and wife. He suspected her now in connec-tion with the third defendant, and she, callous as the learned trial Judgefinds her to have been over the welfare of her children, must neverthelesshave suffered to some extent over the false telegrams and have beenmuch annoyed at the further suspicions of her husband. He furtheradmits he took all her jewellery and locked it up as he thought she wouldnot go away again without it.
In May the girl Nagamany disappeared from the house in Prakramaroad where her father and sisters were living with plaintiff and hiswife. The disappearance of Nagamany is stated by first defendant to bedue to her being kidnapped at the instance of plaintiff, and plaintiff wasactually .arrested, but there is no evidence to show he was charged withthe offence. Why the plaintiff should want to kidnap the girl if he wasopenly living with her as his mistress as she alleges, defendant does notsay. The learned trial Judge finds it to be an elopement, but it wouldseem not with the plaintiff. After the alleged kidnapping of Nagamany,Suppiah and his other daughters left the house. There is nothing inSuppiah’s first statement (D4) to the Police at the time of Nagamany’sdisappearance to show that he suspected plaintiff as being responsible for it.In a subsequent statement he charges “ one Nagalingam ” with kidnappingher. That is not, I assume, the way he would describe the plaintiff,although plaintiff does say that Suppiah wanted to entangle him. in theincident owing to some money troubles between them. Some daysafter Nagamany’s disappearance she reappeared at plaintiff’s house,brought there by the first defendant, so plaintiff states, and the learned
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trial Judge appears to have accepted this evidence. Her father thencame and took her away. There is no evidence, apart from the firstdefendant’s own unsatisfactory statement, to show that she ever objectedto the presence of Nagamany and her sister in the houses the two familiesoccupied together, and although the learned Judge finds that a highmoral atmosphere did not pervade this joint home, there is I think noreason to doubt the truth of plaintiff’s evidence on this point as to thedisappearance of Nagamany.
The plaintiff and his wife continued thereafter to live alone andapparently on amicable terms until August, when the first defendant’sfather died in Badulla. In spite of her denial, there is no doubt on the.evidence that up to her departure for Badulla. in August they wereliving together as husband and wife. This was admitted by her counselat the outset of the case, and there is no suggestion, in the cross-examina-*tion of the plaintiff, of the charges of cruelty and allegations of interruptedmarital relations as deposed to by her in her evidence. The learned'Judge states that throughout the proceedings she made a bad impressionupon him.
There is I think no doubt that the departure of the wife to Badullawith her children on August 19 or 24, whichever date is correct, wasostensibly in connection with her father’s death and not in any way as(the result of the cruelty and ill-treatment alleged. But it is I thinkquite clear that having left her husband in this connection, she declinedthereafter to return to him, in spite of the efforts of her husband to gether back. He went to Badulla himself on September 6, but she refusedto come back to him. According to his statements, she said she lovedsomeone else. There was no doubt as to the presence of the third defendantin Badulla at the time, and his evidence that he had never been in firstdefendant’s house there is inconsistent with the evidence of the policeconstable who was called. His interest in the subsequent proceedingsbetween husband and wife is clear also from the correspondence. Thelearned trial Judge has declined for good reason to accept the evidence ofalleged acts of adultery between the first and third defendants in Colombo,but there is very good ground for coming to the conclusion that firstdefendant refused to return to her husband in August, as he states,because she preferred someone else. On September 7, on her refusal toreturn to him, he made a complaint at the Police Station, Badulla (P 3),which bears out his evidence. It speaks of his request to her to returnto him, her refusal to do so, her desire to divorce him, his suspicions ofthe second and third defendants, and his taking his children back withhim to Colombo. Thereafter the parties did not meet again. Inquirieswere instituted, plaintiff states he then obtained the evidence given atthe trial in respect of the alleged adultery with the second and thirddefendants, and these proceedings for divorce on the grounds of adulteryand malicious desertion were commenced.
Malicious desertion on the part of the husband is defined in Brouwer,De Jure Connub. (II. 12.12). The passage referred to is set out in Webberv. Webber1 and in Silva v. Missinona The same principle applies inthe case of the wife. In the view of Bertram C.J. the term implies ai {1916) A. D. South Africa, at p. m.2 26 N. L. R. at p. 317.
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DALTON A.CJ.—Ramalingam v. Ramalingam.
deliberate, wholly unreasonable, definite and final repudiation of theobligations of the marriage state. In the view of Innes C.J., if a womanleft her husband finally, against his will, and without legal justification,her desertion would in law be malicious.
Applying the law there set out to the case before us, there is no evi-dence, as I have, stated, to support first defendant’s plea that she hadlegal justification for leaving her husband. Her refusal to return andlive with him was clearly against his will. His statement in the witnessbox at a date long afterwards, that he did not then want her back, wasmade in view of his belief in the truth of the charges Of adultery. Thelearned trial Judge seems to have been satisfied that plaintiff justifiablybelieved his wife had been unfaithful to him. On this point it is to benoted that in parts of South Africa the action for restitution of conjugalrights is a preliminary to the action for divorce. Van Zyl in his JudicialPractice (2nd ed. p. 489) calls it a fictitious preliminary to the actionand adds that a malicious deserter would not be sued to return, if theobject was not a divorce. On the facts before us, however, I have nodoubt that on September 6 plaintiff made a genuine request to his wifeto return to him and that she deliberately, unreasonably, and .definitelyrefused to do so.
Was this in addition a final repudiation by her of her obligations in themarried state? The theory of the Roman-Dutch law is that divorce shouldnever be granted on the ground urged here, whilst there remained anyhope of reconciliation (Silva v. Missinoita (supra) ). This theory has I thinkalways been given effect to. In some systems of procedure it is effectedby requiring that first of all a decree of restitution* of conjugal rights beobtained. The procedure in Ceylon, as Bertram C.J. points out, gives anopportunity for the application of the same principle through the factthat in the 'first place the decree is a decree nisi. That however does notrelieve the Court of the duty of being reasonably satisfied upon theevidence that the desertion was final, and that no hope of reconciliationremained. The case of Wentzel v. Wentzel1 is an instance in which theCourt of Appeal, reversing the decision of the lower Court, held thatalthough the wife had left her husband six months before the institutionof the action, the evidence did not establish the charge of maliciousdesertion made by her husband against her. She had thought her depar-ture from him was justified, but the trial Court held it was not TheCourt of Appeal therefore was of opinion that it could not be said shehad finally and definitely refused to return until a longer period of timeelapsed and she had full opportunity of considering the situation and thatfinding. The appeal was therefore allowed and the judgment alteredto one of absolution from the instance. The case of Mostert v. Mosterton the other hand, is a case in which a decree was granted where the wifehad been absent for only six days before issue of summons. The majorityof the Court held that the desertion was clearly wilful, but Bell J. in adissenting judgment stressed the necessity of being fully satisfied thatall hope-of reconciliation was at an end.
On this last point, after a consideration of the evidence, and especiallyhaving regard to the previous conduct of the wife, I have come to the> (1913) A. D. 65.*2 Searle 128.
DE SILVA AJ.—Mvdiyanse v. Punchimenika.
179
conclusion that her refusal to return to her husband on September 6was a final repudiation by her of her obligations in the married state,without hope of reconciliation. In that event the 3rd issue must beanswered in favour of the plaintiff, and he is entitled to the relief whichthe law gives him.
A further point remains for consideration. The case as instituted byplaintiff falls within Class 1 as it is now amended by Ordinance No. 19of 1927. The third defendant brought a claim in reconvention which atthe trial was virtually abandoned, no issue being framed in respect of it.That claim necessitated, however, enhanced stamp duty on the plaintand other documents filed by plaintiff and the other defendants,and also further costs and charges, as a result of the case falling byreason of the claim in reconvention into Class 2 and not Class 1. It isclear that the third defendant must pay all the additional costs incurredby plaintiff and the other defendants as a result of his claim being made.
.The plaintiff will pay third defendant’s costs in the lower Court, apartfrom the additional costs referred to which must be paid by the thirddefendant. The first and second defendants will have all their costsin the lower Court from plaintiff, but the third defendant must also payto plaintiff the additional costs of the first and second defendants thatplaintiff has to pay, as a result of the case falling in Class 2. The decreeentered must be set aside, and a fresh decree must be entered in terms ofthis judgment.
The second and third defendants are entitled to the costs of this appeal.
Drieberg J.—I agree.
♦
Decree varied.