019-NLR-NLR-V-29-SENEVIRATNE-v.-PANISHAMY-et-al.pdf
( 97 )
Garvin and Lvall Grant JJ.
SENEVIRATNE r. PANISHAMY. et al.
280—D. C. Galle, 22,893.
Divorce—Adultery of wife—Husband himself guilty of adultery—Discretion of Court—Civil Procedure Code, s. 002.
Where a plaintiff, who institutes proceedings for divorce fromhis wife, four and a half years after the adultery complained of, ishimself found to have lived in adultery for four years up to theinstitution of the action and also during its pendency,—
Held, that the Court is justified in refusing to grant ihsplaintiff a divorce.
Per Garvin J.—He who seeks to be released from the matri-monial tie must himself be free from matrimonial offence. Thinrule may only be relaxed in exceptional cases and where thdrelief prayed for may be granted without prejudice to ihe interestsof public morality.
A
PPEAL from a judgment of the District Judge of Galle. Thefacts appear from the judgment of Garvin J.
Hayley, K.Q. (with Ranaivake), for plaintiff, appellant.
T. Weeraratne (with Zoym), for first defendant, respondent.
V. Perera (with Rajapahse), for second defendant, respondent.
August 29, 1927. Garvin J.—
This is an appeal from a decree refusing to grant a divorcea vinculo matrimonii. The action was by a husband on the allegedground of h'is wife's adultery. He endeavoured to establishspecific acts of adultery in April, 1921, between his father arid thedefendant his wife. To this the crucial issue in the case theDistrict Judge has given a somewhat halting answer. He saysit is “probable” and it would seem from his judgment that hethought it a case of strong suspicion but not proved “ to the hilt."It has also been found by the Judge that the plaintiff committedadultery prior to the alleged adultery by the wife,-and it is admittedthat from some date in 1921 and continuously thereafter up tothe present time the plaintiff lived ami is living in adultery withone EIo Nona.
In appeal the case was treated by learned counsel for the appellantas one in which though the adultery of the wife had been found orat least established the learned District Judge had refused a divorceto the plaintiff on the ground of his own. adulterv.
1927,
( 99 )
1927.
Garvin J.
Seneviratne
v,
Panishamp
It has been clearly established that the plaintiff has'been actuallyliving with Elo Nona; from the middle of 1921 at the latest. Thisis the position in which the case on this point is left by the evidenceof the plaintiff and his witnesses. The defendant, however, saysthat the plaintiff's association with Elo Nona commenced sevea yearsbefore the date on which she gave her evidence. She was then con-fronted with her evidence in a proceeding under the MaintenanceOrdinance in which speaking on July 20, 1925, she said “ Heleft me four years ago." Her explanation that her husband finallyabandoned her two years after he commenced to associate withElo Nona is a possible one and has been accepted by the Judge.
Hut there is in addition the evidence of the plaintiff's daughterthat her father used to visit a woman for six or seven years and“ for the last four years he stayed there altogether.” There istherefore ample evidence to support the Judge’s finding that theplaintiff's misconduct preceded the alleged misconduct of his wife.
If it be necessary in law to establish the prior misconduct of theplaintiff as a justification for refusing to grant him a divorce uponthe ground of his wife's adultery, I should hold that the Judge wasright in his finding upon the evidence that such prior misconducthas been proved.
In a case where a plaintiff, who institutes proceedings for a divorcefrom his wife four and a half years after the adultery complainedof, is compelled to admit that for at least four of those years, up tothe institution of the action, and during its pendency he has livedand is continuing to live in adultery a Court would be justified inrefusing him the relief he claims.
Section 602 of the Civil Procedure Code vests in the Court adiscretion in the following terms: —
” Provided that the Court shall not be bound io pronounce suchdecree if it finds that the plaintiff has, during the marriage,been guilty of adultery, or if the plaintiff has, in theopinion of the Court, been guilty of unreasonable delayin presenting or prosecuting such plaint, or of crueltytowards the other party to the marriage; or of havingdeserted or wilfully separated himself or herself from theother party before the adultery complained of, and withoutreasonable excuse, or of such wilful neglect or misconductof or towards the other party as ha*s conduced to theadultery.”
On the one hand, the plaintiff being himself guilty of adulteryis not entitled to a divorce; on the other, the Court is not bound onthat ground alone to refuse him relief. The discretion must -beexercised judicially; that is to say, it must not be capriciousbut must be governed by principle and rule.
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■- 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.
1927,
Garvtw *J
Seneviratnfiv. * '
Panishamy
( 100 )
1927.
Gabvin J.Seneviratnev.
■PonwAamy
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.
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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.
1927.
LvajxGrant j.
Ssutviratoe
Pan i*kamy
Apveal dismissed