095-NLR-NLR-V-23-SILVA-v.-CARLINAHAMY-et-al.pdf
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Present : Ennis and Sohnricfer JJ.
SILVA v. CARLINAHAMY et «!..
364—D. C. Chile, 18,344,..
^ooroe—Wtffe Zeotrinp husband without reasonable .cause—Absents foreight months—Malicious desertion—Decree for divorce in the eventof wife not returning to husband within a period fixed in decree.
Where a wife without reasonable cause left her husband andlived separately for eight months, a decree for divorce was enteredon the ground of malicious desertion.
It is not competent to the Court to enter a conditional decree fordivorce in the event of the wife not returning to her husbandwithin a period fixed in the decree.
T
HE facts are set owt in the judgment of the District Judge.(T. B. Russell, Esq.):—
Plaintiff sues first defendant, his wife, for divorce on the ground ofmalicious desertion and adultery with the second defendant. Defend-,ants have both filed answer and deny the adultery. First defendant,also denies the desertion, and alleges adultery against the plaintiff.
It is difficult on the evidence' to arrive at the truth. The witnesseswhom the. plaintiff has called to prove defendant’s adultery are notentitled to any credit. Plaintiff, who is an influential man in the village,could have induced any number of this sort to give similar evidence, .The fact that he never at any time made any charge of adultery againstthe first defendant until he instituted this case is pretty dear evidencethat he suspected none. It looks as if the charge has been worked upsimply as a foundation for the present case, which the plaintiff has beenapparently forced to take owing to the defendant having sued him in thePolice Court for maintenance. In that case according to the record he• expressed his* willingness to take the defendant back. He wouldhardly have done this if he had even suspected her at the time withhaving committed adultery. First defendant’s counter-charge qgafnstthe plaintiff of adultery, though not apparently such an afterthoughtlike the plaintiff’s, for she mentioned it first to the police in May (P 2),is also not proved. There is, in the first place, only the defendant’sown evidence on the point. There is no question that the defendantdid leave the plaintiff. She admits it in her answer, but that it waB onaccount of his adultery with the servant, Jane, I am by no jn&mnsatisfied …. First defendant is . a young .woman, and theplaintiff is an .old man of 70. Plaintiff states that the defendantbecame indifferent to him, and left him for this reason. Whether J^fswas the real reason or not it is impossible to say, but it is* just as Knutyas the reason given by the defendant. In any case, it is doubtful ifan old man like the plaintiff would fail to find satisfaction with thefirst defendant and misbehave himself with the servant.
Neither party having made out its charge of adultery against ^be<H|nr, the result is that the plaintiff has to fall back onhis charge dj[malicious desertion, and that the defendant, who alleges no otterreason for her desertion except the plaintiffs adultery, has proved nosufficient reason fop hex having left him. She has followed this up by
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refusing to return to him in the maintenance case. Plaintiff seems to 1922.me to have proved malicious desertion on the part of the first defendant,—r-
and I accordingly allow him a divorce on this ground. His actionagainst the second defendant fails. He will, .therefore, pay seconddefendant his costs.
Pereira, KXJ. (with him IkarthoUmeusti), for the appellant.
Jayawardene, K.C. (with him Soerlsz), for the respondent.
April 11,1922. Ewms J.—
In this action a husband prayed for divorce against his wife onthe ground of malicious desertion and adultery. He claimed alsodamages against the co-defendant. The learned Judge found thatthe allegation of adultery was unfounded, but that the wife hadmaliciously deserted her husband. He granted a divorce on thatground. The first defendant appeals from the decree, and theplaintiff has filed a statement of objections apparently against thesecond defendant. Counsel for the plaintiff-respondent hasadmitted that he cannot support the moss-objections, as the seconddefendant was not a party respondent to the appeal by the firstdefendant. The cioss-objeotion, therefore, is dismissed.
With regard to the appeal, it has been strongly urged .that thelearned Judge was wrong in finding, as a fact, that the desertionwas malicious; Apparently a long absence without returning willconstitute a malicious desertion. In the present case there has beenan absence of about eight months, and it appears that in the courseof a maintenance oase instituted by the wife the husband hadoffered to take her back, and that she had definitely refused to go.
There is no suggestion anywhere on the record or in the petition ofappeal that the wife even now desires to go hack to. the husband.
As the learned Judge has found that the absence of the wife waswithout reasonable cause, the desertion is malicious. It wassuggested that the decree should have left a way open for reconcili-ation between the parties by fixing a time within which the wifecould return. This appears to have been an older made in a case—
C. Oolombo, No. 55,35s.1 Since that date, however, the CivilProcedure Code has been passed, and under that Code the onlydecree which can be given in a divorce suit is the decree specified insection 60^ and that decree can be set aside only ojojcertam groundsmentioned in the section. An allowance of time as that suggestedis not one of those grounds. Any application of this sort shouldhave been made before.the decree was passed. I see no reason tointerfere with the decree appealed from, and would dismiss theappeal, with costs.
Sgznbidbb J.—I agree.
’Ton*. HT.
Appeal dismissed.