■- It ‘is urged that a divorce should not be refused to a plaintiff onthe ground of his adultery unless such misconduct conduced to theadultery of his spouse nor where the adultery of his spouse with theco-respondent caused or conduced to the adultery of tlje plaintiff.These are circumstances to which a Court is clearly entitled to givedue weight, but I am unable to assent to the proposal to confinethe matters to which the Court should have regard within theselimits.
The principles by which a Court should be guided should, I think,be those set out in the judgment of McCardie J. in the case ofHines v. Hines.1 That learned Judge, after'reviewing the leadingcases as to the exercise' of the discretion vested by section 31 of theMatrimonial Causes Act, 1857, proceeds as follows : —
“ The Court has undoubtedly increased its willingness to grantrelief under section 31. But the principle, in my view,still remains that exceptional circumstances only will leadthe Court to overlook the matrimonial default of apetitioner …. It is based on the general and cogent
requirements of public morality, and the resultant duty ofthe Court to vindicate a high standard of matrimonialobligation.
“ The enforcement of th.is duty will create a standard which alLmay know and find it well to follow. If the rule beenfeebled by an unduly sensitive regard to the hardship ofparticular cases, then the spouse who has been guilty ofmatrimonial offences would stand upon a footing danger-ously akin to that of a petitioner who is free from conjugalstain. It is better that occasional, hardship should existthan that the permanent and supreme requirement ofmatrimonial morality should be relaxed.'*
The.learned Judge refused to exercise his discretion in favourof the petitioner in a case in which the facts were as follows:—. „
. “ The parties were married in February, 1907.. There was onechild of the marriage. In January, 1908, the petitionerwas out of work, and unable to support his wife. Sheleft him and went to live with her mother. Soon afterwardsshe met the co-respondent and committed adulterywith him. Then she went to live with him and at thedate of the.hearing they had. lived together for nine yearsas. man and wife and had had three illegitimate children,and they were still living together.
**■ For five years after his wife left him the petitioner was guiltyof no moral, lapse. He then met an unmarried girl andcommitted adultery -with her and ever since connection
1 (1918) L. R. Probate Div. 364.
Garvtw *J
Seneviratnfiv. * '
( 100 )
Gabvin J.Seneviratnev.
bad habitually taken place between them up to. andafter the presentation of the petition. The petitionerwas anxious to marry the girl with whom he was living,and the respondentand co-respondent were happily
together and only waiting for the pronouncement of adecree absolute to be legally married.”
If the conduct of the parties, their rights and their interests wereto be the only consideratibns which should determine the questionwhether the discretion vested in the Court, should be exercised infavour of the petitioner, this was a case in which a divorce shouldcertainly have been allowed. But the interests of public moralitywere regarded as the paramount consideration and the petitionwas dismissed.
He who seeks to be released from the matrimonial tie musthimself be free from matrimonial offence. This rule may only berelaxed in exceptional cases and where the relief prayed formay be granted without prejudice to the interests of publicmorality./
Assuming that the adultery of the wife has been established,the discretion exercised by the District Judge in refusing thepetition is, in my opinion, strictly in accordance with theseprinciples. It is unnecessary therefore to consider whether or notthe adultery of the wife can fairly be said to be proved by theevidence on record.
The appeal is dismissed with costs.
Lyall Grant J.—
This is an appeal from a judgment of the District Court ofGalle, refusing a petition for a dissolution of marriage brought bya husband against his wife on the ground of adultery.
On the question of whether the defendant committed adulterywith the co-defendant the learned District Judge has not expressedan opinion, but he has dismissed the plaintiff’s claim on the groundthat he has been guilty of laches, in other words, I presume, ofunreasonable delay in presenting the plaint.
A discretion to refuse a petition of divorce on this ground isvested in the Court by section 602 of the Civil Procedure Code.
In appeal counsers argument was directed principally to thequestion of the discretion of the Court. The other question in thisaction, namely, whether the wife was guilty of the adulterycomplained of, was not fully argued.
The English case of Hines v. Hines 1 was cited to us. Thatcase shows that in circumstances similar to those of the presentcase, the English courts will refuse such a petition.
' * (1918) L. R. Probate Divt 364.
( 101 )
I think it is somewhat unsafe to proceed upon the analogy ofEnglish law even although the wording of section 602 of the CivilProcedure Code follows closely the wording of section 81 of theMatrimonial Causes Act of 1867,.
The common law governing divorce here is the Roman-Dutchlaw which is in important respects different from the Englishlaw, and the manner in which the Court will exercise its discretionought, I think, to depend on the principles of the Roman-Dutch law..Those principles were not cited to us in any detail, and a cursoryperusal of the institutional writers does not throw light upon thequestion whether the Court will decree a divorce where both partiesare guilty of adultery or other misconduct.
The fullest exposition which 1 have been able to find of themodem developments of this branch of the Roman-Dutch laware contained in Nathan's Common Law of South Africa, T7oZ. 7.
In South Africa it appears that where both parties are guilty ofadultery, the Court will not ordinarily decree a divorce, but thatoh the other hand, desertion by the husband is no defence on thepart of the wife in a suit for a divorce on account of adultery.
I do not see my way to expressing any view as to the generalprinciples which should guide our Courts in the exercise of thediscretion vested in them by section 602, but I agree with my brothertha-t the circumstances of this case are such as to entitle the learnedDistrict Judge to exercise the discretion which he has exercised.
It seems to me that the evidence shows that the plaintiff hasbeen guilty of almost all the acts and neglects which are 6et out inthe proviso to section 602 as acts and neglects, entitling the Courtto refuse divorce.
I agree that the appeal should be dismissed.
LvajxGrant j.
Pan i*kamy
Apveal dismissed