Sinnathamby v. Annammah
d951Present: Gratiaen J. and Gunasekara J.V. R. SESTNATHAMBY, Appellant, and ANNAMMAH,RespondentS. G. 60—D. C. Jaffna, 558
Divorce—Malicious desertion—Proof—Mutual aversion to marital relations—Is there
constructive malicious desertion ?
There were many disputes between a husband and his wife because the wifeinsisted that her brother should remain in the house contrary to the desireof the husband. There was evidence that the husband was assaulted on twooccasions by the wife’s brother and that, on the second occasion, the husbandleft the home.
Held, that in the circumstances the husband’s departure from the homedid not constitute malicious desertion on his part.
Further, the wife claimed divorce from her husband on the ground of con-structive malicious desertion “ in that he intentionally ceased to cohabit withthe plaintiff and thereby repudiated the state of marriage between the parties ’ ’.•She admitted, however, that she herself would not have agreed to sexualintercourse.
Held, that the legal concept of constructive malicious desertion was notinvolved in a husband’s alleged lack of interest in a mutual matrimonial obligation■which his wife herself admittedly disdained.
GRATIAEN J.—Sinnathamby v. Annam/mah
-^^-PPEAL. from a judgment of the District Court, Jaffna.
G. Renganathan, with A. Nagendra and E. B. Vannitctmby, for the-defendant appellant.
No appearance for the plaintiff respondent.U
Cur. adv. vult.
July 27, 1951. Gkatiaen J.—„
The plaintiff and her husband the defendant are both retired members-of the teaching profession. They married in January, 1920, taughtat the same school, pooled their salaries for their joint benefit, andadmittedly lived happily together for at least 19 years. By this timetheir ages were 42 and 46 respectively. It was a childless marriagebut later, apparently, they adopted a son called Jayadeva who was atthe time of the trial being educated in Colombo.
It cannot be pretended that the marriage was not punctuated byoccasional quarrels followed by the usual reconciliations. The wifewould complain that her husband was extravagant. <She would some-times complain that he drank rather too much. All that it is necessaryto point out in this connection is that there is such a thing as “ give andtake ” in any matrimonial home, and that the law does not recognisesuch lapses as giving rise to a cause of action for divorce. Besides, theallegations to which I have referred, such as they were, have clearlybeen exaggerated. The plaintiff herself called as a witness the parishpriest who almost invariably helped them to smoothe over theirdifferences. He said, in answer to a question put to him by the learnedJudge, that the defendant was “ not addicted to liquor ”. With regardto the allegation that the defendant was unreliable in matters of finance,he seems at any rate to have been regarded as a suitable person to beentrusted with the responsibilities of Treasurer of the Parish Church.
In 1942 the position deteriorated. This circumstance synchronisedwith the arrival in the matrimonial home of the plaintiff’s youngerbrother Daniel. It is common ground that from that time there weremany disputes between the parties because the defendant demanded thatDaniel should take up residence elsewhere, while the plaintiff was adamantthat he should remain where he was. Admittedly, Daniel tfas proneto the thoroughly nasty habit of carrying tales to the plaintiff about thealleged “ goings on ” of her husband in the village. The defendantsays that this idle gossip was entirely without foundation. Daniel didnot give evidence on the point, so that the tales which Daniel conveyedhave not been substantiated. Nevertheless the learned Judge appearsto think that they were probably true merely because the plaintiff atany rate believed them.
In 1943 Daniel assaulted the defendant, who prosecuted him in theMagistrates Court at Mallakam. The proceedings were later withdrawnat the plaintiff’s request, and Daniel for sometime left the home in whichhe had been such an unwelcome guest to the master of the house. Later,
GRATXAEN J.—Sinnathamby v. Annammah
however, lie returned and the troubles and gossip started all over again. -The learned Judge seems to have taken the view that it was unreasonableconduct on the part of the defendant to object to giving shelter to abrother-ip-law who delighted in carrying tales about his host to hishost’s wife. It is a matter of opinion, I suppose. For myself, I thinkthat any m°.n would reasonably have regarded such a situation as quiteintolerable, and that any woman who did not agree to send away abrother so addicted to inquisitiveness was only asking for trouble. In1945 the defendant left his home by way of protest. There was another'reconciliation at the instance of the parish priest. Until June, 1949,husband, wife and brother-in-law lived together, after a fashion, under-the tame roof. But during this final period the husband spent mostof his time in philosophic detachment in a separate room of his own.He now occupied the position of an unwanted guest himself ratherthan the master of his own household.
The culminating episode took place on 29th June, 1949. On thatday the adopted son Jayadeva had sent an urgent telegram to thedefendant from Colombo. A postman took it to the matrimonial homeat a time when only Daniel and the plaintiff were in. They refused to-accept it. Later in the day the defendant was informed of this incidentby the postman. He was naturally incensed, and remonstrated withDaniel and the plaintiff, whereupon he was assaulted by Daniel. Theplaintiff complains that the defendant finally left the home after thisincident. I really do not know what else a man in his position couldhave been expected to do.
The evidence of the parish priest is to the effect that on more than oneoccasion after this incident the defendant had expressed his willingness-to resume cohabitation with his wife provided that Daniel, who bynow had twice laid hands on him, would remove himself from the scene.This condition was rejected by the plaintiff. Instead, she sued him on15th August, 1949, for a decree of divorce a vinculo matrimonii upon two-causes of action.
The second cause of action, which can more conveniently be disposedof at this stage, alleges that the defendant “maliciously deserted” theplaintiff on 29th June, 1949, after what I would refer to as the “ telegramincident ”. The learned Judge’s findings on this issue are in accordancewith the tacts which I have already described. I shall quote the relevantpassage of the judgment appealed from :—
“There remains the question whether the defendant finally leftthe plaintiff in June, 1949. This is connected with the incident ofthe telegram. Here too assuming that the defendant is speaking thetruth in regard io the incident of the telegram and that the plaintiffand Daniel spitefully refused to accept the telegram and deliver itto him I am inclined to think that there was a sufficient ground for thedefendant to take the initiative for a quarrel. The evidence of theKirama Vidane who inquired into the respective complaints of theparties shows what either party had to say. Perhaps the defendanthimself got the worse of the quarrel and it was this reason that compelled.
GHRATIAEN J.—Sinnathamby v. Annammak
Tiirri to leave the house finally. He may have considered that dis-cretion was the better part of valour. I am satisfied that the defendantnever came hack to the plaintiff after the incident of June, 1949, andthat he did so with a view to leave the plaintiff alone. ”<- o
In another part of the judgment the learned Judge says with reference■to Daniel’s continued presence in the house in the combined role of■unwelcome guest and gratuitous informant:—
“ If in the course of these troubles Daniel did use violence on thedefendant, the defendant was himself to blame if he got the worse of it ”.
I am content to say that on the facts relating to the second cause ofaction, the learned Judge was clearly not entitled to hold that in lawthe defendant had maliciously deserted his wife.
There remains for consideration the plaintiff’s first cause of action,which alleges, according to issue (3) as framed by counsel who appearedlor her at the trial, that the defendant was “ guilty of constructivedesertion since 1939 ”—i.e., no less than 10 years before the institutionof this action—in that he intentionally ceased to cohabit with the-plaintiff and thereby repudiated the state of marriage between theparties ”.
I should have been inclined to regard this allegation as ambiguousexcept for the fact that it was clearly understood by the parties, theirrespective counsel, and by the learned Judge himself as the complaintof a frustrated female spouse that, after 19 years of connubial happiness,Tier husband had wilfully and maliciously ceased to have sexual relationswith her. It is not necessary to decide whether such an allegation, if"true, could by itself support a charge of constructive malicious desertion—and whether relief in such a situation would in any event be available10 long years after the alleged cause of action had first accrued. Allthat I need say is that the plaintiff herself has by her own evidencerendered academic any legal issue which might have- arisen from thisaspect of the case. I shall quote three passages of what she said :—
“ Q. Did the defendant fail to have marital relations with you after1939 ?
A. We had no intercourse after 1939.
Q.After 1939 did the defendant request you for marital intercourse ?.
A. I have no recollection of his having asked me.
Q.Why did he keep away like that ?
.A. He did not like me so he did not ask ”.
■Q. Do you like the defendant 1-A. Now I have no love for him.
GRATIAEN J.—Sinnathamby v. Annammah
Q.From when was that ?
A. From 1939.
Q. Have you ever asked him after 1939 to have sexual intercourse-with you ?
Q. You did not desire it ?
A. r did not like it.
Q. You did not like it ?
Q. Is it because you did not want it or you did not ask for it ?'A. I did not like him. I hated him.
Q. So that even if he had asked you you would have refusedA. He did not ask. Even if he did I would not have consented ”.
Q. Since 1939 if the defendant had invited you affectionately to have-intercourse with him would you have agreed !
In spite of these very frank admissions, the learned Judge took the view:that constructive malicious desertion was established against thedefendant because “ the plaintiff’s attitude of mind which she explainedat the trial is not relevant to this particular issue, for the only questionwhich arises is whether the defendant intentionally ceased to cohabitwith her ”. Once again, I am content to say that, in my opinion, the-legal concept of constructive malicious desertion is not involved in ahusband’s alleged lack of interest in a mutual matrimonial obligationwhich his wife herself admittedly disdained.
In my opinion the judgment appealed from should be set aside, and Iwould make order dismissing the plaintiff’s action. As the evidencerecorded in certain incidental proceedings discloses the fact that theplaintiff is possessed of property of her own, I think that this is a case inwhich she should be ordered to pay the defendant’s costs both in thisCourt and in the Court below.
Gunasekaea J.—I agree.