Sri Lanka Law Reports
(1978-79) 2 S.L.R.
COURT OF APPEAL.
WIMALARATNE, P. AXO ATUKORALE, J.
c. a. (s.c.) 35/73 (p) ; d.c. gampaha, 15846/d.pecember 6, 1978.
Civil Procedure Code, as amended by Law No. 20 of 1977, section 602—Action for divorce—Findings of desertion and adultery in favour ofplaintiff—Plaintiff himself living in adultery—Dismissal of action onthis ground—Effect of amending Law No. 20 of 1977—Plaintiff entitledto decree in his favour.
That inasmuch as the former proviso to section 602 of Civil ProcedureCode has been repealed by the amending Law No. 20 of 1977, the factthat a plaintiff has during the subsistance of the marriage been guiltyof adultery will not be a bar to his obtaining a decree for divorce wherethere are findings in his favour of malicious desertion and adulteryon the part of the wife.
H. W. J ay ewar dene, Q.C., with Laxman Per era. for the plaintiff-appellant.
No appearence for the deiendants-respond'ents.
Municipal Council of Badulla v. Ratnayake
December 6, 1978.
WIMALARATNE, P.The learned District Judge has inswered issues 1 and 2 infavour of the plaintiff, as he had held that the 1st defendant wasguilty of malicious desertion and adultery with the 2nd defen-dant. There was ample evidence for the Judge to have come tothese findings. But, he has dismissed the plaintiff’s action for adivorce on the ground that he himself had been living inadultery. Issues 10 and 11 relate to adultery on the part of theplaintiff, and they were raised at a later stage of the trial.The Judge has held against the plaintiff on issues 10 and 11 andhas dismissed the plaintiffs action for a divorce. Mr. Jaye-wardene has referred us to section 602 of the new Civil ProcedureCode which has left out the proviso contained in the formerCode. The fact that the plaintiff has during the marriage beenguilty of adultery, will not be a bar to his obtaining a divorce,if issues 1 and 2 have been answered in his favour.
We. accordingly, set aside the judgment and decree and orderthat Decree nisi be entered dissolving the marriage between theplaintiff and the 1st defendant on the grounds of malicious deser-tion and adultery on the part of the 1st defendant. There is aboy Gamini Jayatillake, 14 years of age living with the 1st defen-dant. As the 1st defendant is living in adultery, we are of theview that the custody of this boy should be handed over to theplaintiff-appellant, the father. The plaintiff-appellant will alsobe entitled to damages, as claimed, against the 2nd defendant,and to the cost of this appeal as well as the_costs of the trialagainst both defendants.
ATUKGRALE, J.—I agree.