135-NLR-NLR-V-60-VISAVERNI-Appellant-and-MURUGIAH-Respondent.pdf
Visvaverni v. Murugiah
541
1955 Present: K. D. de Silva, J., and H. N. G. Fernando, J.VISVAVERNI, Appellant, and MURUGIAH, Respondent8. C. (F) 520 with 8. G. (Inty.) 197-198—D. C. Trincomalee, 4,140
Divorce—Action for declaration of nullity of marriage—Pregnancy prior to marriage—Proof—“ Condonation "— Civil Procedure Code, ss. 600, 602 (2).
Plaintiff sued for a declaration of nullity of marriage1 on the ground thatthe defendant wife was pregnant by another man at the time of marriage aridthat she concealed the fact of pregnancy from the plaintiff. The marriage was
542
H. N. G. FEENAND07 J.—Visvaverrd v. Murugiah
solemnized on January 1951, and a child was horn to the defendant onJune 18,1951. There was no evidence indicating that the ohild was anything-other than normal.
Held, that, in the oiroumstances, the plaintiff was entitled to judgment in.his favour.
Held further, that, assuming that section 600 of the Civil Procedure Codeapplies even in an action for declaration of nullity of marriage, pre-nuptialstuprum of which the husband becomes aware only after marriage can becondoned only in the same way as adultery can be condoned under section 602 (2).
^_PPEAL from a judgment of the District Court, Trincomalee.
A. G. M. Uvais, for the defendant-appellant.
H. W. Tambiah, with A. Nagendra, for the plaintiff-respondent.
Cur. adv. vult.
August 3, 1955. H. N. G. Fernando, J.—
This was an action by a husband for a declaration of nullity of marriageon the ground that the defendant wife was pregnant by another man at thetime of marriage and that she concealed the fact of pregnancy from theplaintiff. The religious ceremony took place on 18th January, 1951, andthe marriage was registered on 21st January, 1951. It is a matter beyonddispute that the parties did not have sexual relations with oneanother prior to the solemnization of the marriage and that sexualrelations first took place only on January 18th or January 19th.
The defendant gave birth to a child on 18th June, 1951, at theNegombo Hospital. The bed head ticket (PI) contains an entry to theefiect that the weight of the child at birth was 6 lbs. but the learnedDistrict Judge rightly took no account of this entry because the personwho made it was not called as a witness. The only admissible materialin the ticket was the entry indicating that the defendant was dischargedfrom hospital on 23rd June. There was therefore no evidence fromany independent source to establish the maturity or otherwise of the>child. The plaintiff said that the child had hair on its head and lookednormal, and that suspicion first arose in his mind when he saw the child.According to him the child died a week after the discharge of the defemdant from the hospital. This was obviously incorrect since the deathwas registered on 27th June, 1951, as having taken place on the sameday. It was clear therefore that the child did live for 5 days and it wasprobable that the child was alive altogether for between 5 and 9 days.The only medical evidence was that of a doctor who did not attend on thedelivery or see the child after birth. The doctor’s opinion, supportedby text books, was that a child delivered at the end of the 5th month ofpregnancy would weigh only about half a pound and that the weight wouldbe one and a half pounds at the end of the 6th month ; that a child bornbefore the 6th month would normally die and would not live for 9 days;
H. IT. G. FERNANDO, J.—Visvavemi v. Munigiah
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that such a child would have hardly any hair on the head and wouldhave a wrinkled but not a smooth red skin and that a child bomwithin 175 days would not be a mature child.
The defendant merely said that the child was small and weak anddid not give any description of the child in keeping with the descriptionwhich the child would have had according to the doctor if delivery tookplace only at the end of the 6th month.
In spite of the paucity of the technical evidence, the Judge has chosento believe the evidence of the plaintiff as to the fact that the child wasnormal, and that evidence, considered together with the medical evidenceto which I have referred, does establish that conception must necessarilyhave taken place well prior to the marriage.,
The defendant has in appeal relied on the case of Clark v. Clark1, wherethe earliest material date on which marital intercourse could havetaken place was 174 days before the birth of the child. The Court thereheld that, although the case was of a most remarkable nature, it hadbeen established that the husband was the father and that a viable childhad been delivered within the period of 174 days. The case is, however,of no assistance to the defendant, because there was convincing evidenceto show that the birth was extremely premature and that the childhad survived only through treatment and nursing of a most devotedcharacter. There is in the case before us, no evidence indicating that'the child bom to the defendant was anything other than normal.
The plaintiff also attempted to prove that the defendant had subse-quently admitted that she had been unchaste. He relied for this purposeon a number of letters written to him by the defendant both before andafter the institution of the action. Although the Judge did not construethe statements in these letters as constituting an admission, there wasat least in one of them (1*11) a remark which was ridiculous if it wasnot an admission. The learned Judge in accepting the defendant’s expla-nation of her reasons for using particular expressions in her letters failedto realise that she did not even attempt to explain the remark to whichI refer. If he did so he would without difficulty have concluded that thedefendant had admitted her guilt. It is clear therefore that the Judgehas rightly held on the facts that the child was conceived before marriage,and therefore to a stranger and not to the plaintiff.
It has been argued in appeal that there has been condonation and thatthe plaintiff’s action must fail on this ground. Reliance has been placedupon letters written by the plaintiff subsequent to the separation of theparties, which undoubtedly indicate that the plaintiff was not entirelyaverse to a reconciliation. But it is common ground that cohabitation,even in its limited sense of mere living together, was never resumedafter the death of the child. It was argued on the authority of Navarat-nam v. Navaratnam 2 that section 600 of the Code applies even in an actionfor declaration of nullity and that therefore it was the duty of the Judge,despite theabsence'of a plea of condonation, to inquire and decide whetheror not there had been condonation. The arrangement of Chapter 21
1 {1939) Probate 228.* (1945) 46 N. L. B. 361.
■64.4H. N. Gr. FERNANDO, J.—Visvaverni v. Murugiah
of the Code is sach that it is not at all dear that section 600 is applicablein a nullity suit. But even if that section and the other sections whichdepend on it are applicable, the only guide as to the meaning of condo-nation is to be found in sub-section 2 of section 602 :—
“No adultery shall be deemed to have been condoned within themeaning of this Chapter unless where conjugal cohabitation has beenresumed or continued. ”
If adultery can be condoned only by resumption of conjugal cohabita-tion, it would seem to follow that pre-marital stuprum of which thehusband becomes aware only after marriage can also be condoned onlyi« the same way.
In Jayasinghe v.Jayasinghe1 Gratiaen J. expressed the view that con-jugal cohabitation can be resumed without a resumption of sexualintercourse after reconciliation. He also referred to the South Africancase of Niemand v. Niemand 2 where it was held that “ a decree for divorceshould not be granted at the suit of a husband who, knowing of his wife’sadultery, continued to live under the same roof with her … under
circumstances which would justify the belief that a reconciliation has takenplace ”. Assuming these statements of the law to be correct, I think thatwhere sexual intercourse is not actually resumed there should be strongevidence of the fact of reconciliation. If, as in the present case, thespouses do not spend even a single day together after the separation,there must not only be convincing proof of a reconciliation but also aclear explanation for the continued separation of the parties. Neither-of these matters has been established by the evidence in this case. Eventherefore if the Judge had been bound to consider the question of condo-nation, he could not have held in favour of the defendant on that question,I would therefore dismiss the defendant’s main appeal and affirm thedecree entered by the District Judge.
The defendant has also appealed (S. C. No. 197 of 1954) against theorder by which she was denied alimony for the period subsequent to theentry of the decree. Counsel for the plaintiff in appeal did not seek tosupport that order. It must therefore be set aside and the defendantwill be entitled to alimony at the rate of Rs. 75/- per month for theperiod commencing on 1st March, 1954, and ending on the date of thedecree to be entered in this Court.
The defendant’s appeal (S. C. No. 198 of 1954) has not been seriouslypressed and is dismissed.
In the circumstances I would make no order for costs in any of theappeals.
De Silva, J.—I agree.
Appeal dismissed.* (1898) 15 S. C. 217.
(1954) 55 N. L. B. 410.